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US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

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Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#441

Post by cobalt »

mxuribe wrote: post #321
CobrastanJorji wrote: post #289

Earlier quoted context omitted.

You joke, but if I email Sony customer support with an updated terms of service that says the service is free now, is that equally legitimate?

IANAL but i think Sony would have had to *first* fully accept the terms initially, and then a brick (or many other delivery mechanisms used to convey "notice") with updated terms i guess would be weirdly acceptable...however, other laws would be broken since its, you know, property damage. But what a story that would be! lol :-) I hate all these TOS that always favor a company...but what if alot of society started hu…

aren't contracts technically agreements between both parties?

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#442

Post by Izkata »

jrflowers wrote: post #14
yread wrote: post #5

By both sides?

Reminds me of the guy that rewrote the terms of his credit card application and succeeded https://www.independent.co.uk/news/world/europe/read-the-sma...

> Not content with winning his day in court, Mr Argarkov is now taking matters further and trying to sue Tinkoff Credit Systems for 24 million rubles (£470,000) over its failure to honour the contract he created. For its part, the bank is counter-suing Mr Argakov for alleged fraud.

> [..]

> The court is set to review Mr Argakov’s case next month.

Followup a few days later, they both withdrew their claims: https://www.themoscowtimes.com/2013/08/14/man-who-outwitted-...

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#443

Post by Leno1225 »

anonym29 wrote: post #415
xnyan wrote: post #410

Earlier quoted context omitted.

The difference is that a social contract is a concept and not literal contract. The actual reality behind "the social contract" is simply that people have the capability to act in ways that can and do affect other people. Because of this, most people find that it's beneficial to moderate our actions in relation to other people based on their preferences.

I'm referring to very real obligations that we are all held to under the justification of "the social contract" such as taxation and being drafted into military service, not social niceties. We are held to these obligations as seriously and as legally as we are held to real contracts, but unlike the bedrock that constitutes the basis for the legitimacy of all real contracts, these obligations are imposed upon us with…

That’s not the social contract, that’s the dual contracts of residency (protection from fellow residents) and citizenship (protection from foreign elements). You have the opportunity of consent; on your majority you can leave the country for another that’ll have you. There’s a cost to it, but it’s fairly minimal in most places.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#444

Post by Izkata »

thaumasiotes wrote: post #401
dataflow wrote: post #307

Earlier quoted context omitted.

> Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox". You think she marked it as spam before reading it rather than the courier?

I know that's what happened. The courier isn't capable of marking it at all.

We're talking email. They are not only capable of it, but do it all the time.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#445

Post by anonym29 »

Leno1225 wrote: post #443
anonym29 wrote: post #415

Earlier quoted context omitted.

I'm referring to very real obligations that we are all held to under the justification of "the social contract" such as taxation and being drafted into military service, not social niceties. We are held to these obligations as seriously and as legally as we are held to real contracts, but unlike the bedrock that constitutes the basis for the legitimacy of all real contracts, these obligations are imposed upon us with…

That’s not the social contract, that’s the dual contracts of residency (protection from fellow residents) and citizenship (protection from foreign elements). You have the opportunity of consent; on your majority you can leave the country for another that’ll have you. There’s a cost to it, but it’s fairly minimal in most places.

That there costs and requirements imposed by a refusal to consent means that your consent or lack thereof is subject to coercion, rendering the arrangement non-consensual.

This argument would be valid if you could renounce US citizenship without first producing another citizenship. But it's not, and you can't. I never asked for a US citizenship, I don't want a US citizenship, and yet I'm bound by it and not free to revoke it.

This citizenship situation is more analogous to a slaveholder telling one of their slaves that they are technically free, because they are welcome to leave once they produce documented proof of ownership by another, different slaveholder. The slave is no sense actually free, despite the misleading, bad-faith assertions of the slaveholder and those who recognize the slaveholder's framework as inherently legitimate.

Imagine waking up at a car dealership that tells you that you MUST pay interest on a car whether you take possession of it or not, despite you never having signed any kind of contract with them, but they tell you that you are still free and nothing is wrong with the arrangement because they will let you off the hook for paying them as long as you can provide proof that you're bound to pay interest on another dealership's car instead. If you try to refuse paying the interest on the car you don't want and never agreed to buy, they will send a team of gunmen to your house in the middle of the night, throw a flashbang through your window, chain you up, and drag you to a cage they lock you in. They insist that the whole arrangement is perfectly fine because the people in the car dealership took a vote where they agreed to force you to be bound by those terms, and that's all the justification they feel they need.

Now imagine the same thing, but in addition to paying interest on the car you didn't want and never agreed to buy, you're also bound to help murder people at other car dealerships, too, at the discretion and whim of the car dealership you're currently being extorted by.

That doesn't sound completely insane to you?

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#446

Post by 47282847 »

WarmWash wrote: post #294
chrischen wrote: post #279

Earlier quoted context omitted.

The whole concept of intellectual property rights is a social and legal construct designed to promote innovation in an economy. If you don't care about that, then there really isn't any moral or immoral aspect to it. The immorality of it and associating it with stealing was just MPAA propaganda to try to shame people into paying for stuff. If I found some DVD lying on the ground and watched it and I didn't pay for it…

The bedrock of the argument is that you give for what you take. This is very fundamental, not just some capitalist drivel. You'd be hard pressed to find a single level headed individual who could form a coherent argument against it (generally speaking, not just protracted edge cases). Even your most hippie communist commune requires giving in order to receive. People act (many even think) like this doesn't apply to d…

> Even your most hippie communist commune requires giving in order to receive.

I was born into a hippie commune/network and the basic premise was that everybody gives voluntarily by mere existence and free desire to do so, and that whatever ends up being given can be taken/distributed. There was no “requirement to give” since what you provide often cannot even be identified or accounted for (and there was explicitly no interest in doing that). Maybe you’re a good listener, or good in helping with the kids. And so on. Actually, I know plenty of open communities that more or less work that way. In the US, they generally need a bit more safeguards against random external freeloaders (hurt people not familiar with community care) than in Europe but they exist just fine.

Apart from commune experiences: I do believe every human has a deep-seated desire and need to contribute positively and “give back” to their social environment. You don’t need to be forced or nudged to do it; you get sick/depressed if you’re not allowed to bring your talent to the table. (I understand that sometimes there’s too much pain/hurt on the surface that needs recognition before people can return to more natural ways of “giving back”; but more often than not, it is related to the desire to give but being rejected than any taking.)

And more back to your point: I disagree with the notion that every giving and taking is (or needs to be) a distinct and direct transaction. Even in capitalism. The money/time/talent a person “saves” on “freeloading” will be “spent”/given back elsewhere.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#447

Post by thaumasiotes »

Izkata wrote: post #444
thaumasiotes wrote: post #401

Earlier quoted context omitted.

I know that's what happened. The courier isn't capable of marking it at all.

We're talking email. They are not only capable of it, but do it all the time.

Your definition of "courier" is personal to you, but not compatible with anything that might be accepted by a judge.

In this case, Tile sent the email, it was delivered seamlessly to the plaintiffs' designated agents, and then it was hidden from the plaintiffs by their designated agents. Those agents are not couriers; as far as the law is concerned, and as far as the law can be concerned, they are the plaintiffs.

Tile has no control over who you make responsible for receiving your mail. As soon as they've gotten your mail to that person, they've done everything that can be done.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#448

Post by thaumasiotes »

dataflow wrote: post #419
hrimfaxi wrote: post #317

Earlier quoted context omitted.

I see what you mean, and lack of a rejection email from the server is not proof of delivery either. I was looking to things like state process service laws. It doesn't seem like any type of receipt is required for electronic proof of service in California, for instance https://law.justia.com/codes/california/code-ccp/part-2/titl...

I don't know how laws work here but I can't imagine having adequate "proof of service" fully insulates you from all possible claims of non-receipt, especially electronically? Like what if the recipient was in a coma or on active duty in the middle of a war zone or something? There have got to be exceptions here to handle some cases of non-receipt despite proof of delivery, so the question of whether spam classificati…

> Like what if the recipient was in a coma or on active duty in the middle of a war zone or something? There have got to be exceptions here to handle some cases of non-receipt despite proof of delivery

If the recipient was in a coma, this question couldn't arise at all, because they wouldn't be able to use the service.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#449

Post by Izkata »

thaumasiotes wrote: post #447
Izkata wrote: post #444

Earlier quoted context omitted.

We're talking email. They are not only capable of it, but do it all the time.

Your definition of "courier" is personal to you, but not compatible with anything that might be accepted by a judge. In this case, Tile sent the email, it was delivered seamlessly to the plaintiffs' designated agents, and then it was hidden from the plaintiffs by their designated agents. Those agents are not couriers; as far as the law is concerned, and as far as the law can be concerned, they are the plaintiffs. Til…

Which goes right back to what OP was saying, it's not taking into account how email actually works. The user did not mark it as spam, contrary to what you said earlier - they never even saw it. It's not even close to the same thing as the recipient tossing physical mail into the trash without opening it.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#450

Post by II2II »

CobrastanJorji wrote: post #289
Havoc wrote: post #100

Reminds me of the Sony bash.org joke > I will write on a huge cement block "BY ACCEPTING THIS BRICK THROUGH YOUR WINDOW, YOU ACCEPT IT AS IS AND AGREE TO MY DISCLAIMER OF ALL WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS DISCLAIMERS OF ALL LIABILITY, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL, THAT MAY ARISE FROM THE INSTALLATION OF THIS BRICK INTO YOUR BUILDING." And then hurl it through the window of a Sony officer…

You joke, but if I email Sony customer support with an updated terms of service that says the service is free now, is that equally legitimate?

The problem with that argument is that Sony is the one offering the service and the customer is the one using the service. The customer has the right to request changes to the terms of service and Sony has the right to refuse to provide the service if the customer asks for changes to the terms of service. So the customer is at a distinct disadvantage.

The logic makes a certain amount of sense, but the logic falls flat when the service is an actual product the customer paid for and the company decides to change the terms of service after the fact. The logic also falls flat, in my opinion, when the company agreed to provide the service for a fixed term or the service can (reasonably) regarded as essential.

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