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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]

#91

Post by Lyrex »

carefree-bob wrote: post #79
bradley13 wrote: post #24

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option. I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can…

The other side of this is that companies do want to change their T&C from time to time, so what do they do, force you to quit and then sign up again? That adds a lot of friction. Or do they tag things and say "Customer X signed up on this date, so he is bound by T&C number 12, whereas this other customer signed up a year later and is bound by T&C number 13". That seems unwieldy since there is a common infrastructure.…

I work for a digital bank and the versioning is essentially exactly how we handle T&Cs. The user accepts a certain version of some terms, and if we launch for example a new product that requires changed T&Cs then we ask the user to accept them if they want to use the new product. If they don't, well, then they just keep using the existing offering without accepting any new terms.

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

#92

Post by throwaw12 »

Why not remove TOS completely, if your provider is anyway forcing new terms?

Suppose I start with simple TOS at the beginning: do not use in criminal scenarios

Then I change it to: do whatever you do with it, you are responsible for it anyways

I can even do this per sign-up, show TOS which makes sense, then next day send new TOS to allow everything

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

#93

Post by short_sells_poo »

stinkbeetle wrote: post #84
danlitt wrote: post #59

The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service , or about setting up competing products. It…

> The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things? > Especially garbage like what you're allowed to do with t…

Because the power is disproportionally concentrated with one party - the service provider. The users of the service are numerous, comparatively small and uncoordinated.

In a situation like that, users have no means of resisting egregious terms, and no you cannot pull up stuff like "if you don't like it, don't buy it". As I wrote, the users are uncoordinated, and would take a huge effort to coordinate. Boycotting services rarely works (if ever). So what we end up with is that legal teams employed by firms optimize to shove as much bullshit into ToS as they can, the users grind their teeth and bear the bullshit, and get shittier service. Nobody really wins, because I'd argue the marginal gain for the company is minimal at best from this.

The government is not there just to enforce laws, but also to legislate such that the scales are balanced. Otherwise we may as well live in a dictatorship.

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

#94

Post by peter_griffin »

stinkbeetle wrote: post #84
danlitt wrote: post #59

The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Especially garbage like what you're allowed to do with the stuff you get from the service even while not using the service , or about setting up competing products. It…

> The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things? > Especially garbage like what you're allowed to do with t…

>Why should a government prohibit private parties from agreeing to anything other than those 3 things?

because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom

ToS are normally "contracts" (hard to even call them that) between a large corporation with very high resources for a lawsuit and an individual with very low resources. The power imbalance makes challenging ToS for the individual unfeasible in 99% of cases

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

#96

Post by stinkbeetle »

peter_griffin wrote: post #94
stinkbeetle wrote: post #84

Earlier quoted context omitted.

> The entire notion of being allowed to enforce arbitrary terms of service is absurd. There are probably a handful of terms everyone agrees are reasonable (no attempted hacking, rate limits, do not break laws) and everything else should be unenforceable. Why? Why should a government prohibit private parties from agreeing to anything other than those 3 things? > Especially garbage like what you're allowed to do with t…

>Why should a government prohibit private parties from agreeing to anything other than those 3 things? because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom ToS are normally "contracts" (hard to even call them that) between a large corporation with ver…

> because ToS have been long used to demand unreasonable things and threaten people with expensive lawsuits. The advantage of companies losing bullying power significantly outweighs the disadvantage of less business freedom

Why those in particular though? The criminal law one sure that's a part of contract law already. Why the others? Why not different ones? It was just asserted that those were reasonable and no other terms are.

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

#97

Post by xhcuvuvyc »

bradley13 wrote: post #24

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option. I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can…

I got one of these on my tv. I returned it.

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

#98

Post by dathinab »

If "usage imply consent" then couldn't you just write unpleasant TOS updates so that they end up in the spam filter and then argue the user complied.

sending email + user using does not in any sane way guarantee that the user did even know about it

and if usage implies consent how do you even delete you account if you disagree with contract changes, as that requires logging in which can easily be maliciously seen as using the application as any landing page contains app functionality

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

#99

Post by bux93 »

Lyrex wrote: post #91
carefree-bob wrote: post #79

Earlier quoted context omitted.

The other side of this is that companies do want to change their T&C from time to time, so what do they do, force you to quit and then sign up again? That adds a lot of friction. Or do they tag things and say "Customer X signed up on this date, so he is bound by T&C number 12, whereas this other customer signed up a year later and is bound by T&C number 13". That seems unwieldy since there is a common infrastructure.…

I work for a digital bank and the versioning is essentially exactly how we handle T&Cs. The user accepts a certain version of some terms, and if we launch for example a new product that requires changed T&Cs then we ask the user to accept them if they want to use the new product. If they don't, well, then they just keep using the existing offering without accepting any new terms.

Telcos and insurers (especially life, pensions) too. Not rocket science.

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

#100

Post by Havoc »

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

and run like hell

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