> <DmncAtrny> 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."
<DmncAtrny> And then hurl it through the window of a Sony officer
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 hurling bricks back at tech companies in a sort of retaliation...not unlike Luddites damaging ye old machines?
Hmmm… that may only work if they end up using the brick… maybe just send them donuts, corporate hq, stick a long stream of receipt paper in their with your own preferred use-based tos writing small font and faded ink.
There are so many advantages to turning off and disconnecting these days. Avoiding TOS is just a small part.
There are too many demands on our attention and our wallets and most of us aren't getting more money or time. I cancelled all the family's streaming services in 2025. Everyone adapted. It turns out a lot of things we are told we need, we really don't. People lived without them as recently as a few years ago. A lot of the novelty of mobile, streaming, social media and weird tech nobody needs has worn off and the value has been eroded. There are so many better things to do and experience and you don't need to hand over your privacy or sign your soul away.
> It turns out a lot of things we are told we need, we really don't. People lived without them as recently as a few years ago.
It also often turns out that when some new way comes along to do something that people like to do, the ways they used to do those things go away. If you don't like the new way you can't go back to how it used to be done.
The last physical media video rental store within a reasonable drive of me closed around 8 years ago. Redbox went away in 2024. There is still rental by mail, but that is slow.
Those who liked being able to be able to rent a movie without planning days ahead are stuck with streaming now.
Another example is cell phones. It used to be that there were pay phones all over the place. Nearly every public place had a payphone nearby. In most cities there was a good chance there was a street payphone on every block, and nearly every restaurant and gas station had one. On freeways there were call boxes to summon help.
Pay phones peaked in the US in 1995. When cell phones went mainstream in the early to mid 2000s, pay phones rapidly went away, and in about 10 years were almost all gone. Around 90% of freeway call boxes also disappeared. They now are mostly only in areas with poor cellular coverage.
If you want to be able to make calls while out and about now doing it the way it was done before cell phones quite likely is not feasible.
> Those who liked being able to be able to rent a movie without planning days ahead are stuck with streaming now.
Just want to point out that public libraries often have great DVD collections (also music, games, and more) and are often underutilized. Definitely still a viable way to watch a movie for many folks.
Perhaps this makes a very big difference to you, but I often have to remind myself that iTunes movie rentals are very much alive and function just as they do some ten years ago. No subscription required. Not physical, sure, but a normal rental experience.
it's interesting that if you want to watch a movie, torrenting is pretty much the same it was 20 years ago. at this point I torrent movies that are on Netflix (that I have a subscription for) simply because it gets me a better bitrate much more reliably.
While not exactly the same as freeway call boxes... pretty much every state requires any business that are listed on the food/gas/hotel/recreation signs for off ramps to have a free phone for public use.
Every single ToS is written to benefit the company, and when necessary, harm the consumer. The answer is to enter into as few service contracts as possible. Use open source software. Control when your software updates. Really, never use the cloud version of anything whatsoever except where unavoidable. (eg: email and such)
They feel like the legal equivalent of Calvin Ball. So long as you just stash it in a ToS, you can apply any stupid rule your lawyers can imagine.
> Right? A “contract” that only one party needs to abide by is not a contract… it’s an abusive relationship.
I think you're absolutely right morally, but I think you've made a pretty important technical error: they're not abusive because "only one party needs to abide...by the contract", they're abusive because only one party can unilaterally change the deal. The companies that make these "contracts" can actually follow them, but since they can change them at a whim, it only really binds the other party.
Wonder how a court would treat it if users just reply to the email updating the terms of service on our behalf and claiming that they have accepted the terms by not doing anything. (Eg add stringent PII protection, no tracking requirements…)
My guess is that you would probably get kicked off the service if anyone reads your TOS, so make sure to add onerous cancellation charges due to the user in your updated TOS.
There are plenty of other abusive aspects besides the fact that they can be changed unilaterally.
What I really don't understand is how it's supposed to be a fundamental part of contract law that there's a "meeting of the minds" where both parties agree to the same thing, and there are these click-through agreements that nobody reads, and everybody knows that nobody reads them, but they're still enforceable. I get why there needs to be a general presumption that you've actually read a contract that you've signed, otherwise you'd be flooded with people saying "actually I didn't read that" to get out of contracts they don't like anymore. But that presumption doesn't make any sense when one party doesn't read the contract, the other party knows nobody reads it, and everybody knows nobody reads it, but we all just sort of pretend.
I particularly love the pretend play of software forcing you to scroll the dozens of pages of contract text all the way to the bottom before the Accept button is enabled. Because obviously the reason I didn't read through the entirety of these eulas before is because I wasn't sure of how scrolling works.
The only way they should be enforceable is if they use that scrolling trick, then quiz you on all the terms (with at least multiple choice), every time the TOS is updated.
Ok that's no way to build a functional society, though. Humans are certainly not the entities in this conflict with the time or resources to go to court.
But generally the ToS has few, if any, requirements for the company. Usually the ToS is just a list of demands they make of the user in exchange for the service. But the company usually reserves the right to terminate service for any reason, as well as change the serice in any way they want, and change the terms of the "contract" at any time.
>If the company violates their ToS, you can take them to court (or arbitration).
This is my favorite...how exactly can I monitor compliance? No evidence of non-compliance - get tossed out of court. No court order for discovery - no ability to monitor/gather evidence compliance.
The idea that this is even a potential for mutuallity on a TOS is just farcical.
Often I see a popup to accept TOS after the update, which was run without me agreeing to anything.
At which time the company has unilaterally denied my access to something I already paid for without seeking my affirmative consent.
In theory I could stop whatever I'm doing, go email the company a brief to the point letter indicating they've broken their ToS and are unacceptably impairing my ability to use my property under the contract that I did agree to, and giving them an opportunity to amend their problem and give me a rollback path.
Realistically the outcome of this is a brushoff and needing to file a consumer protection complaint or get a lawyer.
If the feature is something like "my car" I can't afford that opportunity cost and am coerced into accepting their contract by the way they presented the amended terms.
>The answer is to enter into as few service contracts as possible.
Any contract where the other party performs so little seeking of my agreement (none at all really) that no representative talks to me in person or even electronically in an individual capacity, where no one witnesses me put my mark on the paper or hears by verbal assent, is in fact no contract at all. Despite what the courts may say. Should they say otherwise, they're wholly illegitimate.
That any of you have let something else stand as the norm is bizarre and alarming. Contracts require explicit, sought agreement, by their very definition. Nothing can be implied. If their business model relies on implicit agreement because anything else would be too difficult, then they simply shouldn't be allowed to remain in business.
1. By reading the message that referred you to this page ("randomstring.org/~dsr/eula.html") you agree, on behalf of yourself and your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that you believe I have entered into with you or your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges.
2. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
I wonder if appending something like this to the user agent string could work in court as a justification.
"Your Honour, the plaintiff's webserver engine thoroughly accepted my client's cookie which expressly stated the waiver of terms brought forward, and continued to serve requested content instead of stopping or refusing further interactions."
Isn't that a bit extreme? As a counterpoint, I find it useful to be able to pay for a train journey by tapping my card on an electronic reader - no representative of the company is there or otherwise witnesses me doing so - but I have entered into a contract whereby I am entitled to travel to a distant location. And I do want it to be a contract, because the transport company agrees to get me to my destination somehow even if the trains are cancelled. Perhaps the conditions of carriage may be somehow unsatisfactory to me, but the way in which I enter into the contract is almost entirely unrelated.
There is well established case law on the contract that forms when you buy something from a store (say with cash). There is a contract, on implied terms . I think what we’re talking about here is entering into a contract (or not) on explicit terms dictated by one party where the other party has not explicitly considered them and barely given the opportunity to do so if at all. I don’t think anybody is denying the ability of contracts coming into existence on implied terms.
>but I have entered into a contract whereby I am entitled to travel to a distant location.
I'm not sure why you drape this in the clothing of "legal contract". If the train fails to take you to your destination, they certainly aren't in breach. It seems really one-sided. Why do they need it to be a contract? Will you come and claw back the fare from them with them having no legal recourse?
In the UK, where I live, it's completely usual to treat this as a contractual obligation. If there's a problem which means the train can't take you there, the operating company will do everything reasonable to achieve the offered service, exactly because otherwise they'd be in breach.
Example: there are a series of scheduled trains from London (St Pancras) to Nottingham. One day maintenance works meant the line would partly close overnight and the last train would run very slow. Since tickets were already sold the company intended to get passengers to Nottingham by Taxi, reasoning that few would take this already slow train and so a coach hire or other arrangement weren't cost effective.
Unfortunately an unavoidable incident elsewhere meant instead of a half dozen sleepy passengers arriving at the blocked line and being allocated a few taxis, hundreds of us turned up on that last train. The employee paid to order taxis made a few calls and was told too bad, the company will just have to eat the cost of hundreds of taxi fares, call all the city's taxi firms.
This is somewhat fair, but only as long as you agree that you then have no right to use these services.
I think there is a big difference between the EULA that comes attached to a product you've already paid for, that represents additional terms to what you had already agreed to when paying, and the T&C of a free service or a subscription, presented before payment.
You can't seriously claim that you have a right to use, say, YouTube without any restriction whatsoever. It is a private service, and you can either use it under the terms and conditions that its private owner establishes, or you can avoid using it at all.
The reason for that phrase is that no, Mother Nature's laws are all that matters, unlike our puny laws, hers are inherent properties of the universe, no need for enforcement because you literally can't break them. A court can insist that up is down, but it ain't.
As an avid reader and outdoors enthusiast, I feel there’s a lot of value on “wasting” time with a movie or limited series.
Absolutely, there are so many better things to do and experience than watching TV, but no one should be stressing out about maximizing their time doing them.
In fact, going against that mindset once in a while, and allowing yourself to not do the thing you think you should be doing, is an experience by itself.
Also, it doesn’t need to be a complete waste of time. If you like history or art, there’s a lot of content both as fiction and non fiction that you would find intellectually stimulating (I highly recommend Criterion for this)
One cold November night my wife picked a movie called
Babette's Feast. I absolutely loved the photography. I did some research and found it was inspired by Danish painter Hammershoi, which I never heard of. For Christmas, my wife gave me a beautifully printed, limited edition of his work by the Jacquemart museum in Paris.
Later this year we plan to make a stop in Copenhagen on our way to Sweden to visit friends, so we can see Hammershoi work at the museums.
Seriously you can have a very pure experience interacting with media. I did a mushroom trip ~5 years ago and was having a not great time walking around outside. Cars, other people, sun, bugs etc. were all not sitting right. I went home and watched "Life in Colour", an Attenborough documentary about amazing uses of color in animals. It was a top experience and I still remember scenes from it years later.
Anyway don't throw the baby out with the bathwater and all that, there is a reason we developed digital entertainment.
Wasted time should not be defined as unproductive time, it should be time you did not experience, time you were completely clocked out, not even enjoyed, not relaxed or relished. Wasted. It is a subtle difference but critical to remember if you want to reclaim your time rather than claiming it for capitalism.
Sure, but even the specific case isn't about TOS within the limits of screen time or online browsing. It's about tracking your physical location via Tile trackers. Sure, you can get off streaming services, but you're still signing a TOS or waiver by using any service. Meta/Google/etc has a profile on you even if you've never logged in based on others sharing their contacts and pictures that may include you.
>It's about tracking your physical location via Tile trackers.
1. If the complaint is about non-consensual tracking, using a gadget that's specifically designed and advertised for tracking, and that you have to specifically go out and buy and put on your body is a terrible example.
2. Tile trackers have more or less been replaced with airtags and whatever google's equivalent is, which is designed in such a way that prevents companies from knowing its actual location.
The only reason why I bought a smartphone (first time!) in 2013 was because everyone aronud me had one and they were asking for WhatsApp - util then I was fine with my 4-color-crap phone :-D (and I didnt even know what WhatsApp was)
This news came as I was clicking unsubscribe to all the weird mails that somehow keep piling up in my inbox, with LinkedIN being the leader, and then some by bandcamp. More than ever I enjoy turning off the mobile data while on the go.
Very soon I'll do another round terminating most subscriptions, as Goog showed me what happens otherwise - it still owes me these 500$ that somehow miraculously flew out of my ads account when a campaign decided to suddenly come to live and start converting into obsolete project like 2 months after its designated final date. Nobody ever came back to my complaints.
I don’t live in US or five eyes so I pirate all the stuff basically Scot free.
I understand that it’s not so easy for Americans whose internet activity is constantly scrutinized. I’ve had the privilege of choosing exactly who and what I pay.
I usually don’t subscribe to any streaming service, but when I do choose to pay for something, my money goes to smaller entities that I don’t actively want to see fail.
In my book, none of the Hollywood deserves a single cent. It’s an amazing feeling to be in the power to dictate this.
>In my book, none of the Hollywood deserves a single cent. It’s an amazing feeling to be in the power to dictate this.
Then you don't consume it...you boycott it. Freeloading on honest consumers isn't some kind of moral high ground. If Hollywood is corrupt and full of shitheads, letting someone else pay for your ticket doesn't make you a morally pure viewer.
It's fine if you just own that you don't want to pay for what you consume. But don't try and paint yourself like some kind of saint, lol
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, it's really up to me to decide if I want to pay the creator so they can continue to produce content. If I don't pay then obviously it doesn't help them produce more content... but the consumption of the content itself neither felt nor heard by the creators.
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 digital goods, since copying has no material cost. But producing that digital good costs time and money (anyone on HN care to disagree?). So then you have to decide who are the ones who pay and who are the ones who get free copies. Conveniently, everyone who is getting a free copy thinks that they have a rightful stake to it for free. And because nothing is actually free (see the first line), the ones paying are the ones also covering the cost for those who get is free.
I wouldn't expect teenagers to grasp this, after all we were the teenagers who devised this "piracy as a moral crusade" back in the 90's/00's (how convenient that a side effect of this moral crusade was all the free content your dead broke ass could imagine). But now, if you are in your 30's or older and still haven't logic'ed this out, it's time to catch up.
Simple: people who want it to exist can fund its creation. People who are indifferent or don't want it to exist can choose not to, and once it exists, there's obviously no moral question either way. We already have lifetimes of media available. It costs nothing to replicate infinitely. Do we need to specifically incentivize more?
I think the world would also be a lot better off if software could all be freely distributed and if warranty law required software sales to come with source as well. If you need the computer to do something, you pay a programmer to make it so. You or that programmer can then share the solution with others. The goal is to solve more problems and build a wealthier society for our children, not create rent extraction machines.
Likewise with things like the textbook racket. The government should just commission updates for k-12 books (including AP, so basic uni) every ~15 years or so. Most of this stuff is not changing. It should be "done".
> But producing that digital good costs time and money (anyone on HN care to disagree?)
Not disagree, but it is more nuanced than this I think. I spend a fair amount of money going to movie theaters, usually independent movie theaters but sometimes big ones, to see new releases. As I understand it, the production and funding model relies almost entirely on the box office numbers. I think when dealing with older releases, the waters are much murkier.
I end up seeing new things in person and paying a huge premium to do so. I won't pretend I do it for moral reasons or even strictly to support the creators (although I do it in part to support the independent theater itself). It does keep me from feeling bad for also running a media server, on which maybe 1% of the content is newer than 5 years old, though.
I have almost never bought a physical copy of a movie -- and in my mind the IP holders are usually terrible curators of their own content. Physical media is provided in a horribly limited and anti-consumer format, tied to ephemeral standards and technology and often embedded with advertisements and few subtitle options. Digital products are, somehow, worse. Tied to a walled garden, with no true 'ownership', sometimes platforms like Amazon video will even make their own edits to movies, removing crucial parts for no apparent reason (the wicker man, avatar) and without marking it as abridged. They often make decisions that scream 'cash grab' (i.e. years ago when TNG came on netflix, I went to stream it and was shocked at the potato quality. Later re-releases were released in an un-cropped widescreen that included things like boom mikes because of the original intended aspect ratio of the show.) DRM is a nightmare. The product I want -- a file containing the media and only the media, which I can view however I want without logging into anybody's servers -- does not exist. And if it did exist, well, I do also take issue with paying full price for a file of a 40 year old movie, for example. I know there are costs associated with remasters, etc, but most of these are not remasters (and those costs are also much much lower than outright movie production).
A notable exception is outfits like Vinagar Syndrome, who as a labor of love dig up lost media and often re-cut or remaster / distribute it, and due to the low scale and lack of demand likely do not make much if any profit off it. I often do see showings of Vinegar Syndrome releases at my indie theater though or rent them from the one remaining video rental place (I'm unsure whether or not that benefits the production company).
It probably gets more hairy for people who watch a lot of new serialized media, which I do not.
I kind of wish people would think critically about the gradient of potential consumption habits when making their media choices rather than separating into pro / anti piracy stances, because it's an interesting and multi-faceted topic with a lot of considerations to be made.
I don't consume it because it's crap, but IMO someone who doesn't give money to Disney (a company that pushes gambling on people and is a major reason our copyright laws are broken in the first place) is more moral than someone who does, and the downloading itself is amoral. So if you're going to watch it, might as well pirate.
Any $10/mo VPN solves this, and probably advertises it as a selling point.
Of course, then you're spending $10 to save $10....
I have the whole *arr stack setup with Plex running in the US just fine, but that's for sure not for everyone and was a few headaches to get up and running
>Of course, then you're spending $10 to save $10....
Most VPN subscriptions are around $5, whereas netflix with ads costs $8, and $18 without ads. Even at $18 though, it's still not 4K, whereas you can easily pirate 4K versions with your VPN subscription.
Appreciate the reality check. Mullvad has been a bill I don't think about twice when it comes around, and I cancelled streaming services years ago.
To your point though, as I'm running my plex server on an old ~midrange laptop, 4K is pretty rough for me to stream as well. I'm sure better hardware fixes this, but that's higher cost. YMMV based on what hardware you have on hand to repurpose
>To your point though, as I'm running my plex server on an old ~midrange laptop, 4K is pretty rough for me to stream as well.
Unless you're doing reencodes processing power shouldn't matter. You can serve 4K video on a 2010s router if you wanted to. If you're doing reencodes, why bother? Download an encode that's appropriate for how you're watching it. 4K for the big screen and 1080p for mobile. Skip reencoding altogether.
I don’t think it’s totally worthless. I think people who make it, producers, are extremely corrupted friends of Jeffrey Epstein with each one sooner or later turning out to be a sex offender.
There is a difference.
If you have any sort of conscience you simply don’t want to fund these people. Don’t enable them. Let it wither. Nothing of particular value will be lost.
>I think people who make it, producers, are extremely corrupted friends of Jeffrey Epstein with each one sooner or later turning out to be a sex offender.
This applies to everything that comes out of Hollywood?
Then why consume the stuff at all? What a weird stance. "They're all vile and evil, but I like watching shows, so whatever, tee hee - piracy is morally good now as long as I have this invented fiction in my head!"
This is a good question. If it is so cheap and easy then why not? I think it is a matter of american government and corporate terror tactic.
They make these few rare cases when they catch somebody so loud and showy that the rest of the flock prefers to sign all the TOS and don’t have this additional worry. It is a success story of manipulative scare techniques that copyright corpos mastered.
Most people prefer to be civilians than to be anti corporate combatants, even if it is perfectly safe in practice. This is normal.
Piracy is dead simple these days. Search for “[media name] free streaming” on Yandex and you get a high quality stream with subtitles and multiple audio choices. This works for most stuff, though not everything is available this way.
You can try to buy physical media. A surprising amount of shows and movies are still published as Blu-rays.
The release there is usually a bit delayed to streaming releases though and will set you back more if you buy it new. The used market can be your friend here, especially for older media. IME local libraries might also have quite a good offering depending on their funding and priorities.
The clear downside here is that you can't really follow along with others though (if that's your jam) as these releases are mostly in-full and not per-episode.
The only DRM-free video TV media sources are usually non-legitimate (torrents etc.). Many shows/movies are also interestingly ripped from streaming sites first though. You can of course legally format shift your physical media for private use to non-DRMed files depending on your region.
Counterpoint: fighting for consumer protections is a fight worth not avoiding. Interacting with some of these systems is simply unavoidable (think payment systems, health care portals, email, etc.) & larger corporations already enjoy a huge power imbalance in this relationship. We will just get run over further if we hide from it.
I canceled all of our subscriptions about two years ago and set up a Plex server. I don’t love the direction Plex is going in so I’m teeing up to flip to Jellyfin, but still, it has been so much better than dealing with all of these companies and nonsense.
I feel like we can’t even call it “advertising“ anymore. It’s such a misnomer. It’s basically data fracking and psychological warfare to make us all into little addicts. This whole industry built around chasing “the attention economy” is a social blight.
Similar boat...I'd also like to swap off Plex but a few of my less techie friends use it and I'm worried about the compatibility/ease of setup of Jellyfin on their devices.
Thought about running both in parallel but that seems like a waste. Think I just need a migration day eventually
I've never run Plex, or Jellyfin for that matter. There's a video share on my NAS.
I point Infuse on Apple TV 4K's at it. It works, and cleanly.
Downsides: you have to pay for Infuse Pro to play some formats and deal with some audio codecs. It's IIRC $17 for a year, though, so pretty reasonable for continued development. Your non-technical friends and family can't do the initial setup themselves (it's shared over Tailscale, they can all use the same limited account on your plan), but anyone I'm going to let do this can ship me their Apple TV 4K and let me set it up for them.
It's just weird that it's this complicated. We should get a static IP from our DNS. We should use standard open source streaming conversion mechanisms. It should go over basic video codecs.
Lately I've been working towards just using a webserver to host video files. Sure, it's not adaptive, but for goodness sakes it's simple.
yeah I'm on the same boat. I just have an old laptop hooked up to the tv, which can access a shared folder on my main computer that has all the media. I control it with a wireless mouse, and get an actual fast UI with a web browser instead of the usability nightmare that is a smart tv UI. this is all Windows though, I guess it's possible to have Linux access a Windows shared folder, I've been meaning to look into it for a while
Jellyfin isn't a simple viewer over a filesystem, you have to make a library and give it folders to ingest. It enforces an artist-album-track structure of media, so if you don't like that structure you'll be fighting Jellyfin more than using it.
Yes but you can actually have Copyparty run as a server similar to Jellyfin and have the same thing too?
Am I missing something that I am not looking at? But won't jellyfin have the same issue, I think that plex has servers that you can connect from outside but the GP wanted to move to jellyfin and I was talking about that.
And, you can even have plex like thing by just having Cloudflare Tunnels/Tailscale + Copyparty too.
This ruling taken in conjunction with “in the future you will own nothing, and you will be happy” paints quite the dystopian picture where not even “turning off and disconnecting” will save you.
Indeed. “Privilege of the rich” could be the subtitle for the biography of America. Perhaps founded on the basis of rights for all men, but always denying or chipping away at those rights for the classes of labor.
I’m always cheering for the farmers who are taking on John Deere for the right to repair.
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's like McDonald's selling you a burger and telling you how to eat it.
The flood of Disney+ cancellations likely contributed to their decision to back down on Kimmel, kind of heartening to know we've still got some power over these mega corps.
It gets worse x2: the executor of the estate having signed up for Disney+ means the estate of the deceased loses the right to sue, despite the deceased having never signed up. Like a client being bound by all unrelated legal agreements their lawyer entered into.
(If I recall the details correct, it has been a while since I read into that case.)
It's all just games, they just want to win. Dollars are the overall points, but they're even willing to sacrifice some of those to win bigger cases more brutally.
Except it is a stretch to say it is "their theme park restaurant". This story was dramatically oversimplified in the media and Disney's position was nowhere near as unreasonable as everyone understands it to be.
The argument was not "they agreed to a EULA 5 years ago and therefore mandatory arbitration in all disputes with Disney".
This is a privately owned restaurant at a glorified shopping mall within the larger Walt Disney World resort. If you died due to a severe allergic reaction at a normal restaurant in a normal shopping mall in Florida the mall owners would generally not be liable unless there's something else going on.
The theory that Disney is liable here is more than anything based on the *restaurant featuring on their app.* The EULA for *that app* would certainly be relevant to this argument.
Now, the Disney lawyers also tried to argue that the Disney+ EULA would actually (at least plausibly) be relevant. That is more than a bit of a stretch, especially for a free trial from years ago, and I'd be surprised (but IANAL) if such a theory would actually hold up in court. Still, on a spectrum from "person died due to maintenance failure on a Magic Kingdom ride" to "person died from going to a restaurant featured on a Disney+ program", if you're arguing that the Disney+ EULA is relevant, this is a whole lot closer to the latter than the former.
It's my belief the Disney+ EULA claim was just the lawyers doing the "throw everything at the wall and see what sticks" shtick (no pun intended). They knew it was likely to not hold up, but tried it anyway because, if it did, it helps future claims.
>Disney's position was nowhere near as unreasonable as everyone understands it to be.
>Now, the Disney lawyers also tried to argue that the Disney+ EULA would actually (at least plausibly) be relevant.
Well, you know, they also could have not done _that_. With it they deserve all the flak that they've got and more, simply because they resorted to a scummy tactic, whatever the reason.
The beef is in the fries actually -- well, beef substitute -- they have a wheat-derived beef flavoring used to make the fries taste richer. The jury is still out on whatever is between the burger buns.
The pro tip is pasting such long ToS into NotebookLM and asking it to list e.g. top 5 surprising clauses (if you ask just about surprising clauses it treats you like an idiot and lists everything)
> The entire notion of being allowed to enforce arbitrary terms of service is absurd.
ToS can’t enforce completely arbitrary rules. They are still bound by the limitations of the law and the worst they can usually do is terminate your account.
> It's like McDonald's selling you a burger and telling you how to eat it.
And practically speaking they would be limited to telling you that you’re not welcome to come back and buy another one if you break those rules. They are not legally obligated to have you as a customer.
You can break the ToS all you want for how to use online services. The risk you take is that they decide they don’t want your money any more and turn off your account. In my opinion, that’s a fair trade.
Unfortunately the only way this changes is if a company writes a just enough unreasonable ToS, and someone violates it in just the right way and the company decides to enforce said ToS, and the user fights back, and this all ends in court.
I'd be surprised if all those stars align anytime soon.
> The entire notion of being allowed to enforce arbitrary terms of service is absurd.
For clarity, and while the HN seems to imply that, that is not what this decision was actually about.
It was about the specific requirement that disputes be handled by binding arbitration. The circuit court was actually clear they weren't making decisions about the facts of the case, precisely because the arbitrator gets to make those calls.
Now, sure, that can mean "you lose" in practice, depending on the claim and the arbiter. And in this specific situation it's a death knell for the plaintiffs, because this was an emerging class action suite looking for a big payout.
But no, the 9th circuit has not found that companies have the ability to enforce "arbitrary terms of service" via a TOS update email. They only made a call on this particular term update, and they were clear that they did so because it does not represent an actual change to the service terms (only to the dispute process).
> 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 the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.
It is vaguely like that, but but I'm not sure the analogy facilitates understanding of this subject. McDonalds shouldn't tell you how you can eat your burger, therefore... companies must not enforce any terms on their services aside from those things. Why?
I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
>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
> 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.
The original comment asserted that there are “probably” a finite list of reasonable things everyone could agree on. The examples were parenthetical and surely not meant to be the last word.
The point they were making (rightly or wrongly) seems to be that contract law just isn’t the right way of managing consumer-business relationships. I suspect that actually meshes with the intuitions of a broad swath of the population, who want a reliable, predictable, consistent, and consumer-beneficial set of norms and laws around all consumption so that it is easy to manage and understand when you are departing from the norm and to be able to confidently conduct a public life knowing that your purchases are not subjecting you to any surprising gotchas other than having lost the money and having acquired a product.
You could take this line of thought charitably in another direction to assert that “unusual” agreements are presumed unenforceable but not that there are no legal mechanisms for adding additional clauses.
We could have a sort of “Consumer Protection Agency” that broadly enforces these norms when a company feels the need to avenge themselves on someone. A sort of regulatory agency, if you will.
But the critical question is whether it would be possible to create, staff, operate, publicize, and oversee such an "agency", at a cost that is sufficiently lower than a tiny fraction of a heavy explodey thing.
There are legal terms and concepts like good faith, expected and unexpected terms, reasonable expectations, abuse of a legally unsophisticated party and so on. In other countries, neither the fiction that everyone reads or is expected to read the 10-page "dining contract" of a restaurant exists nor is it allowed (enforceable) to put any unrelated or unreasonable crap in there.
Is it your contention that the rest of the world has solved the case of terms of service? That the alleged solution is restricting possible clauses to those OP enumerated? Or that USA does not have any limits or regulations around fairness in contract law? I'm fascinated.
> This is one of these cases like gun crime where:
This is going off topic but I don't think that's going to go anywhere interesting, so why not...
> USA: There is no solution!
> Rest of world: slightly embarrassed look
Well presumably not the 20 odd countries with higher gun homicide rate than USA, but sure. One that did used to be counted among those ranks was El Salvador. El Salvador used to top the list just a decade ago and it was not even close! Today it's around par with New Zealand. Amazing! That is perhaps the most recent and dramatic case of a solution to gun crime being found. You are right that rest of the world is indeed embarrassed about that for some reason. You would have thought everybody would be overjoyed, praising it, looking to emulate it, all the self-proclaimed "experts" admitting they were wrong... but no. It's strange, everybody just has this slightly embarrassed look about it.
On the other hand, if the goal is to restrict the peoples' access to firearms, the solution to that in most other countries was not constitutional violations by their governments of course. So presumably the same solution for that in USA would be to amend the constitution so that such firearms restrictions could be implemented. Also very obvious. I strangely have not heard of any serious efforts by mainstream political parties toward this solution though. I can see there would be second hand embarrassment for them for not seeing the obvious solution to what they want.
During friendly discussions and arguments my lawyer friends like to make the same kind of thought terminating cliche filed arguments that you just replied to.
I think that your response really hit the nail on the head and it raises the question my mind of how do we most effectively eliminate these kinds of malformed American-system brained thoughts from disrupting real and possibly even productive conversations about these kinds of topics?
In particular, one private party has an expensive and highly educated legal team and a lot of time. The other party wanted to eat a burger and didn't have a week to do a thorough legal review of the TOS to check if they were potentially selling any kidneys for a dollar.
US contract law has the concept of unconscionability already. You're not listening to me, my question is why should those things be allowed but nothing else? "Because a severe power imbalance allows for abuse, and governments should prohibit such abuse." does not address my question because it does not explain why the would-be permitted things are not subject to severe power imbalance or abuse of a type that governments should prohibit.
The GP alluded to "a handful of terms everyone agrees are reasonable". Regardless of what those are, their hypothetical definition makes them implicitly reasonable. You can circularly reason that these hypothetical univerally-reasonable terms are univerally-reasonable because it is impossible to abuse them with a severe power imbalance.
Re-reading your post, you appear to be asking if the GP would ban all contract terms that aren't universally-reasonable. I don't think that's what they were saying, and it's not what I'm saying.
The purpose of unconscionability is clear, the question is what findings will trigger it? There is a spectrum of opinion on that. My position would be that, whenever it can be demonstrated by one court that a powerful entity did commit abuse via unconscionable contract terms, it should be noted by other courts and applied equally to other similar entities.
The US courts already do this, but the problem is they tend to take the narrowest possible application, and that's ultimately because they're deferential to the US Congress. They don't want to be making law, they only want to interpret the law they have. They want Congress to make law... but Congress doesn't seem very good at that. Most other country's systems are Roman law systems rather than Common law, which in practise means they tend to update laws and regulations more often, and the courts get their clarifications via updated laws rather than build up centuries of precendent.
"Inequality of bargaining power is generally thought to undermine the freedom of contract, resulting in a disproportionate level of freedom between parties, and it represents a place at which markets fail. "
It's funny. When I have a topic I am interested and passionate about, and want to find an improvement or solution, I welcome the chance to have my ideas questioned. To explain them, to in turn question the alternatives others put forward.
In their frothing haste to put down my heresy here https://news.ycombinator.com/item?id=47307056, not one single commenter took just a second to understand what I actually wrote. Most of the responses aren't even coherent on their own, much less address my questions. I did not advocate for the status quo, I did not even assert OP was wrong. I invited them to provide some reasoning for their proposal. Quite troubling, even cultish behavior.
I try not to assume malice (i.e. Hanlon's Razor) when it happens to me. Unfortunately the mob rule seen on other user-curated sites seems to be infectious.
I try to gently call it out here when I see it, though, because HN is the one user-curated site where I still feel that people come to get to 'truths' versus 'agendas'. I want it to stay that way!
> Why should a government prohibit private parties from agreeing to anything other than those 3 things?
> I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
This is not a magic list of 3 things that I think is complete.
I think there is a compromise between allowing companies to add arbitrary terms, including some which are enforceable but (by my feeling) unreasonable, and excluding unreasonable terms completely with a blanket ban, which no doubt would result in some companies being unable to add reasonable terms that are not in the list.
I think if we picked the 3 terms I outlined in my comment, the result would be a more pleasant situation than the one we have.
You could just say I disagree about what is an enforceable term. The point of the analogy is to show how ridiculous I find the current judicial reasoning, which is something along the lines of "if you don't like the term, you don't have to use the service, so it doesn't really matter how restrictive the terms are". I really think this is how particularly US judges think about this sort of thing, and I think it does a lot of harm to society. People find it obviously unreasonable for McDonalds to say how you can eat your burger, or for a book store to say what you can do with the information in your book, but when a service tells you how you can use the data you get from them, it's fair game. It's ethically inconsistent.
Judges which apply that sort of reasoning really ought to think about how it applies to a hospital visit in which they were incapacitated and received a bunch of treatment. Would it be legally appropriate to slip a term about binding arbitration, or a hold harmless, or maybe a release allowing photos of their visit to be used for advertising?
> This is not a magic list of 3 things that I think is complete.
Okay, but you do think it should be an extremely limited scope of things along those lines that parties may form contractual agreements around. It's just such a radical idea that I was hoping to hear some interesting reasoning behind it. If it's just things seem like they might be more pleasant if we did that, then sure thing that's great, certainly would be nice if things were more pleasant we can agree on that.
Personally I have no issue with people mutually agreeing to any terms (within reason) as long as it's an actual agreement and not just some boilerplate legalese that nobody really expects you to even read, let alone carefully study and give informed consent to.
"Use implies agreement" should not be allowed. Probably even "check the box to agree" should not be allowed. If a company wants to force all their customers to agree to something in a legally binding way beyond the basic standard of what the law requires (things like don't violate our copyright, don't DoS us, etc) they should have to mail a contract and wait for the customer to sign it with ink and send it back. (Well, maybe not literally that, but at the very least some similarly weighty process which makes it clear to all parties that this is something they need to read carefully and take seriously.)
It's nonsense to on the one hand treat a ToS like "no big deal" and expect everyone to passively agree to it with no friction or push-back while at the same time treating it like a contract signed in blood as soon as lawyers get involved.
Why? Because ToS as they exist today are unreasonably long and not understandable by the average person. Yet nearly everything we buy today comes with a complex ToS.
Added to that is the forced arbitration clauses they exist in most ToS. See the example about Disney getting out of a wrongful death suit at a theme park beciaee the plaintiff had a free Disney account for a PS5 that he bought many years earlier.
Tl;dr - buying a piece of software or home appliance shouldn’t come with more strings attached than buying a piece of real estate.
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.
But some terms were claimed to be reasonable. If power being disproportionate is sufficient to void terms, why not those terms too?
> 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.
Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it? Sounds horrific, like a dictatorship. The government is not my guardian and does not do my thinking for me. I get that many people are subservient and would much prefer that, but that's no good either. There's an enormous middle ground between anarchy and "the state intervenes to allegedly 'balance the scales' in every aspect of peoples' private lives".
> If power being disproportionate is sufficient to void terms, why not those terms too?
Power being disproportionate is obviously not sufficient to void terms - that's not what the comment you're replying to said. It is necessary to void terms when there is a power imbalance.
> Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it?
This is obviously ridiculous and makes me think you are not arguing in good faith. Terms have to justify their existence according to logical principles that we argue about. It does not follow that there has to be a "state's adjudicator"! I am just describing how democracies come up with laws - it is not some fantasy Orwellian nightmare.
> I get that many people are subservient and would much prefer that
> Power being disproportionate is obviously not sufficient to void terms - that's not what the comment you're replying to said. It is necessary to void terms when there is a power imbalance.
What are you trying to say here? I didn't claim the previous poster didn't think it was necessary, I was just commenting on the sufficiency part of the claim -- sufficient being a subset of necessary.
> This is obviously ridiculous and makes me think you are not arguing in good faith.
What is ridiculous is that you're pretending not to recognize a reductio ad absurdum, particularly in the context of a reply that included McDonalds dictating how you eat a hamburger! Makes me think you are not arguing in good faith, I may be forced to report you to an adjudicator to rule on how we are permitted to debate.
> Terms have to justify their existence according to logical principles that we argue about.
And that's exactly what I'm asking about. OP made a claim about what terms were "justified" and I'm trying to find out the basis for them.
> What are you trying to say here? I didn't claim the previous poster didn't think it was necessary, I was just commenting on the sufficiency part of the claim -- sufficient being a subset of necessary.
Sufficient is not a "subset of necessary". "Sufficient" in this context means a reason that voiding terms is justified. There being a power imbalance does not mean that the terms should be voided. If the more powerful party stipulates "You may not continue to use the service if you use it to commit a crime", then nobody would argue that the term must be voided just because the more powerful party stipulated it. That is why when you say "the state's adjudicator decides they are exactly equal in "power" and permits it?" this is neither a reductio ad absurdum nor logically valid. Nobody said or implied that any part of the process should be "void the terms if the parties are not equally powerful". You just made that up.
What they did imply was "if the terms are otherwise not justified, and the parties are not equally powerful, you may have to void the terms". In other words, it would be necessary to void the terms.
> What is ridiculous is that you're pretending not to recognize a reductio ad absurdum
It isn't a reductio ad absurdum, because you took the argument "all TOS terms except these 3 categories should be unenforceable" to the logical extreme of "there should be a state-appointed adjudicator who reviews every contract". I am simply advocating for a particular law that should be published.
> OP made a claim about what terms were "justified" and I'm trying to find out the basis for them.
The background reasoning is that service providers should not be able to dictate your behaviour unless it is behaviour that directly affects the service - either because you're using the service in an unethical way, or you're making the service unreasonably hard to provide, or whatever. It happens to be the case I can only think of a handful of terms that have this property. Maybe there are more.
> It isn't, you're just unable to address it.
I think we agree, I am unable to address such titanic arguments as "many people are subservient". I will meditate on these words.
No sufficient definitely is a subset in the context I used it. Go back and re-read and try again. Or actually you're getting a bit heated at the suggestion you might be a wee bit subservient to your government betters. Might be an idea to have a nap instead.
> Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it?
It's pretty simple. You can write whatever you want into a contract, but if you want to enforce an unreasonable term, you will lose in court and might be forced to remove the term from current and future contracts. That's how it works everywhere. The difference between legislations is just what is considered a reasonable term.
> The government is not my guardian and does not do my thinking for me.
This is a quaintly (US) American perspective.
The government is and does literally both of those things, and the arguments in these threads are about the fine details of the manner in which they should continue doing so in the future.
Why needlessly complicate this with so many obtuse hypotheticals when you can just look at other countries that have objectively lower crime rates, greater citizen happiness levels, lower wealth inequality and see how the solved this problem?
> Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it.
This is a strawman and you know it. Please at least make an attempt to argue in good faith, otherwise there's no point.
Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.
Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.
See? Not particularly conductive to discourse, is it :D
Uh yes? And you clearly know it too. It was a bit like your McDonalds strawman.
> Please at least make an attempt to argue in good faith, otherwise there's no point.
No need to get in a huff when we obviously both know what we're talking about. It's not conducive to the discussion.
> Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.
I don't know exactly what the current situation with completely bogus ToS is, I'm willing to accept it could be adjusted. I was asking specifically about your proposed adjustment to it though. Your reasons for the new framework you suggested.
> Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.
That isn't what I was suggesting. I was asking you how you came to your conclusion in the previous post. (EDIT: Sorry you did not conclude that, the grandparent did the parent of my first post you replied to, but you posted seemingly in support)
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 make the screen go away temporarily, but there is no options to say "no, I disagree".
Here in Sweden the thing that makes something a contract is that you can't change it-- that it has definite provisions that have been agreed and that both parties actually expect the other to hold up their part.
The US breaking its contract law to treat non-contracts as contracts is one of the most insane things I've seen a legal system do to itself.
The key difference, is that the US is many jurisdictions (Federal + 50 states + a lot of others, from counties to cities to territories to MANY others), and the variance amongst those is high.
The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
In the US, these things have huge variability. There are well regulated states, and well, the others.
>The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
Yes, but Swedish contract law actually is like this. A contract is a specific agreement, it can never be "Oh well, you can add provisions as you like if you send them to me" or "I will pay whatever".
The workaround is that each change is a new contract. If you don’t accept the changes the existing contract ends and that’s it. But the power is mostly with the provider, you need it more than it needs you, so you will want the new contract. You can also ask and negotiate terms and the provider has the same choice. If there’s healthy competition you have some power, otherwise you are out of luck.
But that would supposed need to have some explicit text stating the expiration of that contract. An existing contract can't just end when provider feels like it, I suppose?
I would guess it can end the moment either party wants, unless a length was established. At the end of the month or year you’ve paid for, perhaps with a minimum notice, would make sense. Otherwise the provider can refuse to let you stop paying, citing the contract.
Every contract has that, either party can exit the contract under normal conditions. You can cancel your Netflix subscription with a short notice period. They can do the same. They use the notice period as grace period for you to accept the new conditions. You accept a new contract with new conditions.
I negotiated my mobile phone or internet contracts again and again, to get better deals. I threaten to leave, they throw a bone. Because they know I have options. Providers who know you don’t will squeeze you however they please.
Do you think it's likely that these kinds of things come about because there's varity in the myriad of jurisdictions in America or that there are monied interests who stand to benefit from it?
Like to put it another way how much of this is 'We must do it this way because Americans are simply built different and we're just special' vs 'this makes a handful of people a bunch of money and they have teams of lobbyists, marketers, and lawyers to normalize this kind of stuff in society over time'?
It's probably a bit of both from what I've seen of how Americans tend to react to their government doing things (online anyways).
The US's quagmire of incoherent laws and many jurisdictions seems to be a bad combination of:
* Apathetic voters that are raised on a media diet of "big government bad", which impedes any regulations on a federal level. (Note that this is irrespective on if the voters actually want a small government, it's what they're led to believe.)
* Politicians that don't like to give up power; there's an unusual desire for local/state US officials to claim responsibility and get very pissy when the federal government steps in with a standardized solution. This is very unusual compared to other countries; punting responsibilities to local officials in other countries is generally seen as a way for politicians to abdicate responsibility by letting it die in micromanagement and overworked administrative workers and isn't popular to do anymore these days. (This is also a two way street, where federal US lawmakers can abdicate making any legislation that isn't extremely popular by just punting it down to the states, even if they have legal majorities.)
* The US has a court system that overly favors case law rather than actual law. Laws in the US are permitted to be painfully underdefined since there's an assumption that the courts will work out all the finer details. It's an old system more designed around the days of bad infrastructure across large distances (like well, the British Empire, which it's copied from). It's meant to empower the judicial branch to be able to make the snap decision even if there's not directly a law on the books (yet) or if a law hasn't actually reached the judiciary in question. The result is that you end up with a bunch of different judiciaries, each with their own slightly different rules. It also encourages other bad behavior like jurisdiction shopping where people will try to find the judiciary most favorable to them, crafting "the perfect case" to get a case law on the books the way you want it to get judges to override similar cases and so on and so forth - in other countries, what the supreme court judges doesn't have nearly the same lasting impact that a decision in the US has.
* And finally, the entire system is effectively kept stuck in place because lobbyists like it this way; if they want to kill regulation, they just get some states to pass on it and then hem and haw at the notion of a federal regulation. Politicians keep it in place on their own, lobbyists provide them the grease/excuse to keep doing it. (And those lobbyists these days also have increasing amounts of ownership over the US media, so the rethoric about voters not liking big government regulations is reinforced by them as well.)
It didn't end up this way on purpose; the historical reasons for this are mostly untied from lobby interests (which is mostly just "the US is the size of a continent in width", "states didn't actually work together that much at first" and "the US copied shit from the British Empire"), but they're kept this way by lobby interests.
This is not true. It is 100% possible to write a contract in Sweden where one of the paragraphs says that you can change it in this and that way. And if we're talking about business to business contracts, it will probably in almost all cases be enforceable, even if you're writing that one party can just announce changes. In fact, I think most business to business contracts have some kind of clause specifying that it is possible to raise prices or change certain things.
That absolutely isn't true. You can enter into agreements about how to form a contract, but a contract is definite, completely specific, with no changing provisions. That's what makes it a contract.
If you have an agreement that says one party can announce changes, you don't have a contract, because those changes were not agreed to.
I am not sure that is correct. At the least it sounds to be a violation of EU laws if this were possible in Sweden; but, even aside from it, I do not think a contract can be changed willy-nilly without offering termination of the service in due time.
Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here.
To me the insane part is that contracts don't have to be registered with the courts (or some qualified third party) ahead of time.
Like each party could show up with their own piece of paper (or not be able to provide it). Which is largely the issue here in that one party is showing up with a 2021 document and the other a 2023 document.
>Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here.
Yes, of course.
We don't have any rules about contracts needing to be written down or registered or anything of that sort. Even verbal agreement are valid, and you are entering into simple contracts even when you buy something in a store.
These users have agreed to a monthly contract or, if there is no money paid, a contract with no finite end date but with provisions to change terms, essentially terminating and restarting. So the service provider has decided to amend the contract at the end of the current (one month) contract in the first case, or on some date arbitrary date in the second (unpaid). The users are free not to accept the new contracts.
So nobody is just changing a contract mid stream. Use of a service month-to-month implicitly agrees to this: your ability to stop using and paying them on the 1st of the next month is their ability to change the terms on which the service is offered next month.
And btw, everyone on here hates this, but I don't know how else it could work. The idea that if I sell a customer one month of a paid saas on a monthly plan I'm somehow obligated to never change my terms or price forever as long as he or she keeps paying is beyond absurd. If people want stable terms, they need to find software that will sell them annual or multiyear contracts.
There is a strange phenomena where introducing tech makes people suddenly blind or numb to established rules.
Can you imagine buying a car in the seventies and a month later finding a technician under your parked car making adjustments to it? You’d kick them out and call the police. But put an internet connection in between and it’s ok.
Same goes for wiretapping (compare Nixon vs current state), unlicensed hotels and cabs being ok when booked by an app, and so on.
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 get emails from time to time that "Policy X has changed and will take a effect in X weeks" so at least I'm given advance notice, and am basically OK with that approach as long as the changes are spelled out clearly and not hidden in hundreds of pages of legalese. Maybe an LLM would help here, and translate what the new changes in terms really means so I can decide whether to continue with the service or not. In general I'm OK as long as I'm given enough notice and it's clear what is happening.
The same thing happens with pricing. What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that. How is a T&C change different?
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.
That’s sounds reasonable for services-based consumer offerings. Which would include consumer SaaS services.
Where it gets a little
muddy for me is hardware with services attached (a new EV, etc)… you pay $60k for a car, it really shouldn’t be possible to force a new ToS on something they has physical ownership. And definitely not possible to brick or de-option the car due to refusal to accept new ToS.
Versioned terms help when changes apply to a product, not the whole platform. For a new product with different rules, require explicit, time-stamped consent before first use; otherwise grandfather users on existing terms. Provide a changelog, a grace period, and an easy opt-out. At Getly, per-product terms and payout rules kept separate can reduce 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.
If the company would like their T&C to carry the force of a binding contract upon me, then yes, keeping track of my agreement seems like the absolute bare minimum they must do.
Either these things are real contracts or they are not. The idea that it's too onerous for a company to keep track of its contractual agreements is absurd. That's giving them all the benefits of a real contract with none of the obligations.
> What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that.
Of course you do. I have a fixed contract with my mobile carrier - if they want to change rates, tough luck. Once the current contract expires, they can indeed notify me that the new contract will auto-renew with a new rate, and I can either accept it or choose a new carrier. But they very much can't change prices, or alter services rendered, while the current contract is in force.
I'm still on a contract from 2016 or so with my mobile (cell) operator. 10 years of inflation, I pay basically nothing for some occassional data use and more voice than I could ever use.
Of course it irks them much to not be able to sell me less for more. But they can't do anything short of disconnecting me and that is unspeakable for a mobile operator.
I used to have a good deal for years at Orange. They tried to get me on a new contract (slightly expensive) for a while, but at some point they just decommissioned the old program, basically they cancelled the old contracts and migrated everyone to the new plan. It was a minor change to me so went with it, then later they started to hike prices on the new plan, eventually I cancelled and left them after about 20 years.
>so what do they do, force you to quit and then sign up again? That adds a lot of friction.
Maybe that's a good thing? Imagine if changing the T&C required cancelling everyone's account and then letting people sign up with new accounts if they still want to do business. That would probably make any T&C changes much harder to justify, creating a balance against what many see as abusing T&C updates.
But the “initial” T&C allows them to cancel your contract unless there’s a minimum contractual period. They can take that opportunity to force you into a deal change. The change is that now just using the service is considered consent.
The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies (probably by the companies too).
I have the same in the car. Been postponing for 2 years now.
I wonder if this can be weaponized by users too (probably no legal basis for this), just send them a new T&C again and again and say delivering the service is consent. Force the companies to say the quiet part out loud: users are not allowed to have the same liberties as the company.
> That for me is evidence that the law is made for the companies (probably by the companies too).
Yes, everything is becoming more and more convenient for big corporations while individual citizens need to navigate an ever increasingly complex world. Laws are designed to protect capital not individual citizens nor society. That never ends well.
This is just the reality of the power asymmetry and is exactly the same for small company Vs big company. As a small company your business is just not worth that much to big company, so you choices are accept the terms offered or go elsewhere. Or, in an ideal world, there is a competitor who's found a space in the market offering better terms than big company.
I did this to FreeNow (the Uber competitor). No cat though. When they changed their “late fee” that I pay to the driver they if I’m late but nobody pays me if they’re late, and made it implicitly accepted, I emailed them my conditions and said that continuing to provide me a service is implicitly accepting them.
I still have the account. Do you think it worked? I’ll need to test that in court.
If you decline the new contract, you're entirely welcome to continue on the old T&C.
Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too.
So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates.
> The company should not be able to change those conditions without my explicit permission.
The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service.
So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or
spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."
> If you decline the new contract, you're entirely welcome to continue on the old T&C.
I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.
> I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract.
Yeah, because, as I said: the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
So, when they terminate that old contract, it's based entirely on the terms of that old contract. You agreed to this up-front.
What's the alternative? Force companies to offer indefinite contracts?
Clauses existing, have very little to do with it being enforceable.
Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised.
If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous.
Notification alone, is not enough. Agreement is required.
Again, the previous terms allow them to terminate the previous contract, and ... hey look, they're exercising their rights, listed in the original contract, which you did in fact agree to.
If you want to continue using the services, and know about the change, then that's legally, as cited in the actual court documents in OP, an agreement to the new terms.
The precedents around TOS law is so clearly and obviously wrong.
Here, the court applied an “objective-reasonableness standard” to find there was “unambiguously manifested assent”.
Which could only be true if we give new, contrarian definitions to the words “objective”, “reasonableness”, “unambiguously” and “assent”.
What’s actually happening here is companies have been given the power to write arbitrary, custom laws defining their liability and responsibilities to their customers. It’s a bad situation because it’s not possible for people to actually know what the deal is. It’s not even that good for the companies in the long run, because they all end up coming off as used car salesmen
You win a case, but now Tile/Amazon === sleazy.
When your product is tracking locations there’s a trust barrier you need to overcome. How much would you trust Tile (Amazon) now?
Can I do the reverse now as well? Email a company a unilateral change in the TOS? Or do TOS's have provisions against that as well?
"I do not agree with your new TOS and will continue under your old TOS, and I will continue to use your service". And see when they will close your account down.
If most customers did anything active we'd have a radically different society. The difficulty is getting people engaged to fight back against the system (I'm not absolving myself from being part of those people)
That's a nice daydream - but v1.0 gave them exclusive rights to update the ToS or pick arbiters. Along with lots of other "heads we win, tails you lose" stuff. :(
Probably as long as the mail server responds with not delivered. Really, it would be better to have a lawyer go through the decision than laypeople parsing a judge.
It's a bad ruling. By it's logic, McDonald's can mail me a contact where they take my car if I eat at their restaurant and all disputes go to their arbitration court, and I agree to the terms by ordering food from them.
It's really no different. In fact, in some ways it's worse because McDonald's can send the contact via certified mail.
These courts just want to clear their dockets which is why they reversed.
> These courts just want to clear their dockets which is why they reversed.
You have made no attempt to justify this claim, which, I suspect, you pulled out of thin air, though it amounts to a provocative accusation of significant ethical bankruptcy and judicial malpractice in "these courts" (whichever courts you may be referring to). Do better.
For those not familiar with US appeals courts, this is an unpublished order, which means that it's (broadly speaking; there are subtleties) not precedent and applies to this case alone.
I'm not 100% sure I understand your first question but this opinion is not "precedent" in the legal sense (i.e. future 9th Cir. courts must follow it). Of course, that doesn't mean that it will have zero influence on how future judges may decide similar cases. If a later judge finds the reasoning in this opinion persuasive they are free to adopt it. But they are not bound to adopt the reasoning like they would be if this were a "published" opinion that is precedential.
I'm only a law student and not a practicing lawyer so my intuition for decisions to litigate are not strong. That said, my understanding is that there were some pretty notable assumptions and questionable doctrinal maneuvers in the opinion that a future judge might be hesitant to also adopt. An example of each: (1) the court states that users who submit an email during registration assume they will receive TOS amendments by email and (2) the court doesn't seem to distinguish between TOS formation and amendment. These, and others, might be correct assumptions and reasoning, but the opinion doesn't convince me of that, so maybe another judge wouldn't be convinced either.
Hm. It seems that use actually goes two ways. They continue to use my information even when I leave their platform. Does this mean I can email info@google.com updated TOS, since I am a party to it I guess, and if they keep selling my info they accept it?
Sadly, this bill has been around since 2007, introduced by the very same Hank Johnson! I would love if Congress would put an end to the forced-arbitration bullshit that so obviously does an end-run around your 7th amendment rights and makes a farce of informed consent, but alas, they couldn't even get it through when Democrats held the presidency, the house, and 60 seats in the senate.
The TOS are changing from 1st of June as below:
- are your belongings are now ours
- please move out of your->our house
- you cannot use the service anymore
Due to our contract with a Nigerian prince who is seeking to exfiltrate his family wealth, your last month's bill of $14.99 will be refunded in its entirety, and the fee schedule from now on will be as follows:
[6 pages of legalese]
$39.99
[3 more pages of legalese]
You can opt out at any time by sending a notarized letter to our legal department at ___. Should you wish to continue using our service, we will auto-renew you at the new rate on your next login.
I had exactly this case with T-Mobile in my country. They'd sent me price increase but I didn't see it and realised only when got charged 3x more for internet I didn't use. Then I answered them with email that I resign, but they wrote that they need my signature and I need to send it by post office or go to one of their places
The current state of terms and conditions is a clear failure of modern law.
No one is reading them, and it would be practically impossible to do so. Signing something you cannot practically read and understand clearly does not mean you actually accept them.
How can we wake people up to this absurdity? The law should exist to help society. When it is not helping, reform it.
What gets enshrined into law is a function of what powerful people in the society want enshrined. And these companies, their executives, and their beneficiaries are infinitely more powerful than individual users. In many ways the legal system is a compromise that companies tacitly agree to in order for legal/police protection in exchange for not hiring mercenaries and rebelling, as they do in some countries. The legal system has to serve their interests, or else powerful people would revolt. When they do revolt either violently or nonviolently, the laws shift and a new compromise is achieved. Or they just choose not to follow the laws and the state doesn't call them on their bluff, or if they do, it is only an entry-point to negotiation. Thus the current state of laws are a continuum of compromises between power players.
My personal preference is for laws that promote reasonable limits on "Standard terms and conditions" and then recognizing that nobody reads them and making them applicable regardless of whether people read them or not. Then companies can stop pretending like people are reading the standard terms and unfair terms are just unenforceable. This does require that your civil law defines what unfair terms look like (generally that they are too one sided in favor of the contractor or are surprising given the service provided).
Obviously, this doesn't exist in the USA but does exist in (for example) the Netherlands. I would recommend lobbying in your country for such laws since in practice the vast majority of contracts like these that people face aren't actually negotiated nor negotiable.
Well, just one step more, and we'll have "TOS may be unilaterally updated by publishing the new terms on the firm's web site, it is entirely the user's duty to keep himself up to date, continued use implies unrevocable consent and giving up the right to re-negotiate" legal as well.
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
The implications for B2B contracts are significant here. In construction, for example, subcontractor agreements often reference separate terms documents that get updated independently. If email notice plus continued use constitutes acceptance, it changes the calculus for how companies manage contract amendments across multi-party project teams. The practical challenge is that on a large project you might have 50+ subcontractors who all need to actively acknowledge revised terms, and this ruling suggests passive acknowledgment through continued use may suffice.
by reading or not reading this comment, you imply consent for me to access, manipulate, and/or assume control of any of your checking and savings accounts, investments, stocks, bonds, options, futures, securities, lines of credit, and real estate that you hold now or may acquire in the future, regardless of my chosen method or manner of access. disputes arising from any such activity shall be arbitrated by me. you may opt out at any time by replying “I CONSENT”
Agreeing to say, forced arbitration with a company, because you signed up for say, their streaming service, is obviously unconscionable. What would be even worse if those TOS said that you have to go into arbitration in matters unrelated to the streaming service.
Yet, this is what's happening. Disney used such an agreement (obtained through Disney+ TOS) when a man sued them on behalf of his dead wife, who died in their parks. It's common practice now to have these clauses in TOS, e.g. Discord has it too.
If the Supreme Court justices uphold this, I'm sending the ones who vote yes emails, each with an EULA dictating that by opening and reading the email they agree to send me 100% of their salaries in perpetuity, as well as an initial, single lump sum payment consisting of all their assets thrown into a trust in my own name. If they push back on it, well they shouldn't be so upset about something they agreed to in the first place.
PerplexityAI has been making the rounds of reddit because they had people sign up for 1 Year free of Perplexity Pro via various ways, including linking their PayPal accounts.
After a bunch of people signed up, they scaled down what you get with Pro to basically what a free version used to be, and now the useful version of Perplexity is called Max.
So you had an agreement for a certain service, and they just rugpull you on it.
So the other way around works too, right? I can fire off an email to a noreply address at any given company, call it "Terms Of The Serviced", and that represents a binding contract into which I can insert arbitrary obligations at will?
The analysis isn't great. In particular, they say "this is a three-factor test, two of the factors are in favor, one is against, two is more than one, so Tile is fine". Normally you'd expect some kind of analysis of how much weight each factor contributes.
That said, they do also say this:
> we determine that Appellees received inquiry notice of the Oct. 2023 Terms. Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” Godun v. JustAnswer LLC, 135 F.4th 699, 710 (9th Cir. 2025), and we do not hold that notice by mass email establishes inquiry notice in every case.
So the HN headline is misleading at best.
(They also note that, while they should consider how normal internet users behave, they can't do this because "there is very little empirical evidence regarding" the question. So they substitute a discussion of how reasonable they find Tile's actions in the abstract.)
On a much smaller scale I did the same thing with a consulting contract. They sent it me and said to full in my own job description and "check the contract". The laziness annoyed me, so I altered the payment terms from 30 days to 7. Every month they paid after around 15 days and I let it go, but one month they hadn't paid after 31 days and I sent them an invoice for late payment for every single invoice to that date (only 4 or 5). I didn't think they'd pay it but they did
So much stuff is getting put in Terms of Services that have nothing to do with using the service. Games will tell you how your allowed to make fan art in them. If I am drawing a picture at my desk I'm not even in the game.
I will send every company I use a service my own TOS via email, they then consulted, if they break my TOS I can then take them to court. Problem solved.
So if I email the company a TOS and say that continuing to allow me to use the tool should be considered acceptance of my new TOS that should be valid? Sometimes it's amazing to see the legal contortions people use to justify bad behavior on the part of companies.
How can you assume people see their emails? What if it gets blocked as spam? What if a person doesn't check their emails often? Are people forced to check their emails now all the time?
Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)!
Why the heck is the court completely oblivious to that fact when weighing the facts on each side? You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once? (!) The court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal?
> As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.
Well yes, they did, but:
> Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.”
...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight?
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case.
At least they say their ruling doesn't generalize...
Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. The user is the one who selected the e-mail inbox service provider, and has some degree of control over message categorization.
That does sound like there's an exploitable element there isn't it?
Statistically speaking, most people use one of the biggest email providers, which use their own models to detect spam (or even quietly drop messages). If you're doing an unpopular TOS change, why not set the mail up to still be RFC compliant but in such a way where the mail isn't going to be allowed through by any of the providers. Then you can just claim the problem is userside.
For example, the Message-ID header is technically not required (SHOULD rather than MUST), but as a spam detection measure, Gmail just drops the message entirely for workspace domains: https://news.ycombinator.com/item?id=46989217
The exploitability goes both ways, I think. Users can also mark similar emails as spam to keep such emails out of their inboxes. Not sure how one could deal with that.
> Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me.
No, you're even harsher than the court. The court explicitly looked at common practices by consumers, not just who-picked-what or who-controlled-what:
>> Because Tile should have known that at least some of its users do not closely monitor email, and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.
The court explicitly said Tile was responsible for making sure people read what it sends, and you're disagreeing with it! Clearly that's relevant!
The court somehow just failed to look at the spam classification question at all, which is baffling. They could've looked at the spam classification and said something similar here, yet they didn't. Instead they ruled as if it's the same situation as one where 100% of the problem is due to the user's negligence, which it clearly isn't.
> The court seems to be completely disregarding that it was misdelivered into spam.
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".
I guess it's an instance of a more general principle: sending an email doesn't guarantee it gets to the user's inbox, never mind that it gets read.
Even if you are OK with the idea that a user can be presented updated TOS with no option to disagree (I don't, but put that aside for a moment), it should still require a mechanism that actually guarantees (or at least verifies) that the user has seen that the terms are updated. Email is not that. (An unskippable notice on login to a web service would be.)
A read receipt is not proof of receipt but proof that you read it. They are not the same thing. If your office receives registered mail but your secretary threw it away without you reading it, you're still legally served right?
Agreed, but there's no delivered (but not necessarily read) receipt that applies to email so that was closest I could think of that counted. The overall point remains: sending an email, with no further evidence, does not count as proof of delivery (all the way to the inbox).
> 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?
They don’t even send you the changes. They just say “we’re updating our terms” in an email and you’re now bound by contract to offer the company your first born as an indentured servant upon demand. Fortunately, the “bury them with paperwork” strategy is waning in effectiveness now that an LLM can read a 50 page ToS and quickly tell me if there’s anything that works against my interests.
And courts keep wondering why commoners lose respect for the law. I know a judge and had a couple of really interesting conversations with him. We agreed on lots of things but there was one item that stood out for me that made a massive difference in interpretation: to him the map was the territory, he saw the law as the thing that made the world, not the other way around. I always found that to be extremely interesting in that it explains why some of those decisions come across so completely tone deaf. On paper it may all look like it makes sense but in the real world it leads to bonkers effects.
Society coalesces around sets of social expectations (some of which are regulations or laws), and these formalized expectations are a very strong defining factor of society itself.
Even if it makes things overly complicated sometimes, I like the EU style that forces companies to make people actively confirm their consent, and puts the 'inform' part of 'informed consent' into the company's responsibility.
Yeah. I enjoy the modern trend of not even showing the EULA on the screen where you agree to it. Those will all be so easy to get thrown out if they ever become a problem.
The original Minecraft EULA did not have any of the usual boilerplate language to support unilaterally modifying the terms. I had a Minecraft account purchased under this original EULA which was modified a year or two after I bought the game. Around 5 or 6 years ago, Mojang emailed me about changes to their login system that would require me to migrate my account to Microsoft’s system (no doubt under new T+C), but the migration process never worked and they never responded to my support requests.
When I tried to resolve it a couple of years ago I received boilerplate emails informing me that the migration period had ended.
So if you deal with companies that simply don’t honor their contracts—companies like Microsoft and Mojang—you don’t even need use to imply consent, because they can just lock you out of your purchases and tell you to pound sand.
This would make more sense if email was 100% guaranteed to be delivered. Not sure if this angle was argued, but just like regular mail, just because something was claimed to be delivered is not enough to prove that it was, hence the existence (in the US) of certified mail and signature return receipts.
TOS updates almost always go to junk/spam. So delivered doesn’t mean seen, nor having a reasonable chance of being seen.
You often don’t determine what goes to junk, that’s decided by thousands of other people and the email provider. Junk folders often auto delete so there’s no recovery.
the key issue is the interpretation of "consent" when continued use is the only option. aree users truly consenting, or are they simply left with no alternative?
When an enforced agreement can be updated at a whim one may no longer feel compelled to recognize law or those enforcing it. Pray this sentiment does not spread far and wide as citizens outnumber their masters and one day the citizens may come to realize this.
If you cannot identify the user, you should not claim in court that the user agreed to your terms of service agreement.
If you have not proved that the user who agreed to an agreement was the user using the account, then you could very well be attempting to prosecute the wrong person.
It is very possible for one user to steal the account credentials of or impersonate another user.
For example,
Police officers routinely impersonate other users in order to collect evidence.
I had the somehow the same problem with a mobile operator here in EU. They said just by sending an email I agree with their new terms and subscriptions. It's a gray area, IMO. They could simply terminate the service but who wants that?
TOS are in a weird spot. The ruling contends that a “reasonably prudent Internet user” would have noticed and read the email, but I would contend the opposite with the acknowledgement that it would make TOS effectively obsolete.
A reasonably prudent internet user gets half a dozen of these a day, and prudence would dictate the obvious futility of reading all of them, much less remembering the terms bound by each service.
It does mean that TOS would be almost wholly unenforceable, but that may be a bridge we need to cross as a society. These documents have gotten too large and updated too frequently to reasonably bind the population at large.
> In October 2023, Tile sent to all accountholders […] an email with the heading “Updated Terms of Service and Privacy Policy” […] to the email address provided by accountholders during registration, […] “[i]f you continue to use any of [Life360 and Tile’s] apps, or access our websites (other than to read the new terms) on or after November 26, 2023, you are agreeing to the [Oct. 2023 Terms].”
> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. […]
> Doe “never knew that Tile sent” the Oct. 2023 Notice and so never “read any revised or updated Terms.”
> The district court held that neither Broad nor Doe assented to the Oct. 2023 Terms.
So then it was challenged, and the appeals court gets into the weeds: were the Appellees “on inquiry notice of the Oct. 2023 Terms”? (“Inquiry notice” is clearly a specific legal term, I can’t comment on its precise meaning.)
The entire thing seems to hinge on whether appropriate notice was given: it seems to be accepted by all parties and case law that “continuing to use after such-and-such a date implies consent” is okay. (This is explored at the end of the document: simply using the app is treated as “unambiguously manifesting assent”, presuming inquiry notice.)
The court decides: yes, it was sent in the appropriate way and clearly marked and described. And
> Although the email did not say specifically that the arbitration agreement would be updated, reasonable notice does not require the email to discuss every revision.
They do say
> Tile could have done more to ensure that all its users were on inquiry notice of the Oct. 2023 Terms. Tile could, for example, have interrupted users’ next visit to the Tile App with a clickwrap pop-up notice. […] Because Tile should have known that at least some of its users do not closely monitor email, […] and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.
They conclude: two factors for, one against, and thus determine that inquiry notice was received, although Tile didn’t handle things properly themselves, and should have done more.
But they avoid setting this as universal precedent:
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” […] and we do not hold that notice by mass email establishes inquiry notice in every case.
—⁂—
This is my interpretation from a brief read of this interesting-sounding document. I’m neither a lawyer nor American. My understanding is almost certainly incomplete. I think I have avoided inserting any interpretation of my own, others can do that.
The argument seems to be that for Broad, there was clear receipt of the email, even if it was delayed by being in the spam folder - we know she found it eventually.
Doe is a bit more interesting, since she re-downloaded the app, and they're saying that in-and-of-itself is sufficiently clear intent/consent to the current Terms of Service
("Doe unambiguously manifested assent to the Oct. 2023 Terms by
downloading the Tile App in March 2024 and using the Scan and Secure feature in
attempting to locate her alleged stalker’s Tile Tracker.")
The interesting thing is TOS changes by email might be more notification than currently is provided.
It seems likely that someone, somewhere, will turn LLMs against monitoring TOS' and help customers provide feedback when they want to but might not know how.
"By implicitly accepting these terms you shall therefore with an immediate effect pass the ownership of all of your belongings to us, the Evil Company. Non-compliance will be met with a legal action nd we have very expensive lawyers on speed dial."
Because he has power. Putting aside all the people who admire him who he could direct to boycott or harass some company, he can also direct increased scrutiny to companies that don't pander to him.
There's a bunch of people here commenting that clearly didn't read the ruling and are saying hyperbolic things like (made up example) "DoorDash can take your house by silently updating the ToS to say if you don't tip, they can take your house". That's not what this says at all.
The issue is here is quite narrow: it concerns if cases need to go to arbitration or not or if the Northern California district court has jurisdiction. This concerns a change in the ToS (in October 2023). So, first off, the notion that can enforce arbitrary terms this way is false.
There's case law and legislation that the burden on the party seeking arbitration received assent for that and all this ruling does is say that sending the terms for that to the user-supplied email address combined with continued use of the app or website is sufficient to show that.
It's really no different to say that if you send someone a letter then that qualifies as notice. If that goes to your spam folder or you choose not to read it, that's kind of your fault.
But no, this isn't carte blanche to imply consent for any and all changes in ToS sent by email from continued use.
How do they ensure that the email reaches the destination though?
I have had emails never delivered to me, not due to my own fault
but the service provider filtering it away before I could do
anything. It is also dangerous to assume "use implies consent".
I am sure there are other ways to ensure terms of use to be
changed; if it is a web-application then one could only resume
using it if the services were accepted before.
well, I hope the companies doing that have someone watching contact@ to cut my acces when I send my version of thr updated terms of service, since allowing my usage can imply consent. Right?
The email account I cannot access because google decided to ask me for a captcha for which I have no knowledge of, and the don’t have a human help desk that I can contact to prove ownership by providing ID documents?
I don't understand how a community such as this, as connected as it is, can't back channel a message to Google brass to do something about these lockouts, which occur frequently and are unnecessary. There is no way Google doesn't know about them.
Gmail is an essential piece of pervasive personal infrastructure, upon which hundreds of millions of people rely. People are losing irreplaceable data for lack of care on the part of Google. The cost of providing a way to prove identity while maintaining security ought to be part of the cost of doing business for Google as it provides Gmail.
Surely there are some Google employees lurking who can chime in on this frustrating neglect.
They slip "By using this app, you agree to Ring’s Terms of Service (ring.com/terms). You can find Ring’s privacy notice at ring.com/privacy-notice." into their app update changenotes for every update.
US capitalism (aka, powerful financial entities driving policy).
To be fair, not all people in business or government prioritize "the all-mighty dollar" over everything else. Unfortunately, those who don't usually have principles; those who do often are willing to break rules. This is not an even match.
It's just an appellate court ruling, not the summary execution of Bernie's last faithful warrior. It can't even set precedent since the opinions are unpublished.
Yet another example of this administration taking the side of companies over constituents. Now that the Consumer Protection Bureau has been dismantled, we can only expect more rulings like this.
In summary, the Ninth Circuit applied California law to determine that users received sufficient notice. Are other states' laws on notice similar enough to California law for this ruling to be applied broadly? I understand that the order is unpublished so the ruling has little precedential value regardless but I wonder whether the three-factor test is used in other states.
> <DmncAtrny> 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."
<DmncAtrny> And then hurl it through the window of a Sony officer
<DmncAtrny> and run like hell
I hate all these TOS that always favor a company...but what if alot of society started hurling bricks back at tech companies in a sort of retaliation...not unlike Luddites damaging ye old machines?
There are too many demands on our attention and our wallets and most of us aren't getting more money or time. I cancelled all the family's streaming services in 2025. Everyone adapted. It turns out a lot of things we are told we need, we really don't. People lived without them as recently as a few years ago. A lot of the novelty of mobile, streaming, social media and weird tech nobody needs has worn off and the value has been eroded. There are so many better things to do and experience and you don't need to hand over your privacy or sign your soul away.
It also often turns out that when some new way comes along to do something that people like to do, the ways they used to do those things go away. If you don't like the new way you can't go back to how it used to be done.
The last physical media video rental store within a reasonable drive of me closed around 8 years ago. Redbox went away in 2024. There is still rental by mail, but that is slow.
Those who liked being able to be able to rent a movie without planning days ahead are stuck with streaming now.
Another example is cell phones. It used to be that there were pay phones all over the place. Nearly every public place had a payphone nearby. In most cities there was a good chance there was a street payphone on every block, and nearly every restaurant and gas station had one. On freeways there were call boxes to summon help.
Pay phones peaked in the US in 1995. When cell phones went mainstream in the early to mid 2000s, pay phones rapidly went away, and in about 10 years were almost all gone. Around 90% of freeway call boxes also disappeared. They now are mostly only in areas with poor cellular coverage.
If you want to be able to make calls while out and about now doing it the way it was done before cell phones quite likely is not feasible.
Just want to point out that public libraries often have great DVD collections (also music, games, and more) and are often underutilized. Definitely still a viable way to watch a movie for many folks.
Though I do miss old Netflix. That was fun.
They feel like the legal equivalent of Calvin Ball. So long as you just stash it in a ToS, you can apply any stupid rule your lawyers can imagine.
Even the idea that TOS qualifies as accepting a contract makes a farce of the entire concept of contract law.
I think you're absolutely right morally, but I think you've made a pretty important technical error: they're not abusive because "only one party needs to abide...by the contract", they're abusive because only one party can unilaterally change the deal. The companies that make these "contracts" can actually follow them, but since they can change them at a whim, it only really binds the other party.
My guess is that you would probably get kicked off the service if anyone reads your TOS, so make sure to add onerous cancellation charges due to the user in your updated TOS.
What I really don't understand is how it's supposed to be a fundamental part of contract law that there's a "meeting of the minds" where both parties agree to the same thing, and there are these click-through agreements that nobody reads, and everybody knows that nobody reads them, but they're still enforceable. I get why there needs to be a general presumption that you've actually read a contract that you've signed, otherwise you'd be flooded with people saying "actually I didn't read that" to get out of contracts they don't like anymore. But that presumption doesn't make any sense when one party doesn't read the contract, the other party knows nobody reads it, and everybody knows nobody reads it, but we all just sort of pretend.
It is bi-directionally enforced contract, just not a symmetrically beneficial one.
This is my favorite...how exactly can I monitor compliance? No evidence of non-compliance - get tossed out of court. No court order for discovery - no ability to monitor/gather evidence compliance.
The idea that this is even a potential for mutuallity on a TOS is just farcical.
(Insert about 1000 other examples of very awkward ToS updates)
At which time the company has unilaterally denied my access to something I already paid for without seeking my affirmative consent.
In theory I could stop whatever I'm doing, go email the company a brief to the point letter indicating they've broken their ToS and are unacceptably impairing my ability to use my property under the contract that I did agree to, and giving them an opportunity to amend their problem and give me a rollback path.
Realistically the outcome of this is a brushoff and needing to file a consumer protection complaint or get a lawyer.
If the feature is something like "my car" I can't afford that opportunity cost and am coerced into accepting their contract by the way they presented the amended terms.
If only more people actually understood that.
> you own nothing
> the company owns everything
> you have no rights
> you promise not to try and exercise any right you think you have
> if you ever convince yourself that you actually do have rights, you agree to binding arbitration with the firm we pay
> you cannot do anything the company doesn't like
> the company can do literally anything it wants whether you like it or not
> the company is not responsible for anything, ever
> the company makes absolutely no guarantees about literally anything
> in case of any damages it's exclusively your fault and you agree to indemnify us in all possible circumstances
Any contract where the other party performs so little seeking of my agreement (none at all really) that no representative talks to me in person or even electronically in an individual capacity, where no one witnesses me put my mark on the paper or hears by verbal assent, is in fact no contract at all. Despite what the courts may say. Should they say otherwise, they're wholly illegitimate.
That any of you have let something else stand as the norm is bizarre and alarming. Contracts require explicit, sought agreement, by their very definition. Nothing can be implied. If their business model relies on implicit agreement because anything else would be too difficult, then they simply shouldn't be allowed to remain in business.
1. By reading the message that referred you to this page ("randomstring.org/~dsr/eula.html") you agree, on behalf of yourself and your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that you believe I have entered into with you or your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges.
2. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.
"Your Honour, the plaintiff's webserver engine thoroughly accepted my client's cookie which expressly stated the waiver of terms brought forward, and continued to serve requested content instead of stopping or refusing further interactions."
Example: there are a series of scheduled trains from London (St Pancras) to Nottingham. One day maintenance works meant the line would partly close overnight and the last train would run very slow. Since tickets were already sold the company intended to get passengers to Nottingham by Taxi, reasoning that few would take this already slow train and so a coach hire or other arrangement weren't cost effective.
Unfortunately an unavoidable incident elsewhere meant instead of a half dozen sleepy passengers arriving at the blocked line and being allocated a few taxis, hundreds of us turned up on that last train. The employee paid to order taxis made a few calls and was told too bad, the company will just have to eat the cost of hundreds of taxi fares, call all the city's taxi firms.
I think there is a big difference between the EULA that comes attached to a product you've already paid for, that represents additional terms to what you had already agreed to when paying, and the T&C of a free service or a subscription, presented before payment.
You can't seriously claim that you have a right to use, say, YouTube without any restriction whatsoever. It is a private service, and you can either use it under the terms and conditions that its private owner establishes, or you can avoid using it at all.
When the rubber meets the road, what the courts say is all that matters.
Absolutely, there are so many better things to do and experience than watching TV, but no one should be stressing out about maximizing their time doing them.
In fact, going against that mindset once in a while, and allowing yourself to not do the thing you think you should be doing, is an experience by itself.
Also, it doesn’t need to be a complete waste of time. If you like history or art, there’s a lot of content both as fiction and non fiction that you would find intellectually stimulating (I highly recommend Criterion for this)
One cold November night my wife picked a movie called Babette's Feast. I absolutely loved the photography. I did some research and found it was inspired by Danish painter Hammershoi, which I never heard of. For Christmas, my wife gave me a beautifully printed, limited edition of his work by the Jacquemart museum in Paris.
Later this year we plan to make a stop in Copenhagen on our way to Sweden to visit friends, so we can see Hammershoi work at the museums.
Anyway don't throw the baby out with the bathwater and all that, there is a reason we developed digital entertainment.
In my life, I have a term for that. It's called everyday.
I have a todo to take a day and hook my external SSDs filled with movies/shows up to a plex server, then shutdown all my streaming services.
1. If the complaint is about non-consensual tracking, using a gadget that's specifically designed and advertised for tracking, and that you have to specifically go out and buy and put on your body is a terrible example.
2. Tile trackers have more or less been replaced with airtags and whatever google's equivalent is, which is designed in such a way that prevents companies from knowing its actual location.
Sure it’s inconvenient from time to time, but the positives far outweigh the negatives.
Very soon I'll do another round terminating most subscriptions, as Goog showed me what happens otherwise - it still owes me these 500$ that somehow miraculously flew out of my ads account when a campaign decided to suddenly come to live and start converting into obsolete project like 2 months after its designated final date. Nobody ever came back to my complaints.
I understand that it’s not so easy for Americans whose internet activity is constantly scrutinized. I’ve had the privilege of choosing exactly who and what I pay.
I usually don’t subscribe to any streaming service, but when I do choose to pay for something, my money goes to smaller entities that I don’t actively want to see fail.
In my book, none of the Hollywood deserves a single cent. It’s an amazing feeling to be in the power to dictate this.
Then you don't consume it...you boycott it. Freeloading on honest consumers isn't some kind of moral high ground. If Hollywood is corrupt and full of shitheads, letting someone else pay for your ticket doesn't make you a morally pure viewer.
It's fine if you just own that you don't want to pay for what you consume. But don't try and paint yourself like some kind of saint, lol
If I found some DVD lying on the ground and watched it and I didn't pay for it, it's really up to me to decide if I want to pay the creator so they can continue to produce content. If I don't pay then obviously it doesn't help them produce more content... but the consumption of the content itself neither felt nor heard by the creators.
People act (many even think) like this doesn't apply to digital goods, since copying has no material cost. But producing that digital good costs time and money (anyone on HN care to disagree?). So then you have to decide who are the ones who pay and who are the ones who get free copies. Conveniently, everyone who is getting a free copy thinks that they have a rightful stake to it for free. And because nothing is actually free (see the first line), the ones paying are the ones also covering the cost for those who get is free.
I wouldn't expect teenagers to grasp this, after all we were the teenagers who devised this "piracy as a moral crusade" back in the 90's/00's (how convenient that a side effect of this moral crusade was all the free content your dead broke ass could imagine). But now, if you are in your 30's or older and still haven't logic'ed this out, it's time to catch up.
I think the world would also be a lot better off if software could all be freely distributed and if warranty law required software sales to come with source as well. If you need the computer to do something, you pay a programmer to make it so. You or that programmer can then share the solution with others. The goal is to solve more problems and build a wealthier society for our children, not create rent extraction machines.
Likewise with things like the textbook racket. The government should just commission updates for k-12 books (including AP, so basic uni) every ~15 years or so. Most of this stuff is not changing. It should be "done".
Not disagree, but it is more nuanced than this I think. I spend a fair amount of money going to movie theaters, usually independent movie theaters but sometimes big ones, to see new releases. As I understand it, the production and funding model relies almost entirely on the box office numbers. I think when dealing with older releases, the waters are much murkier.
I end up seeing new things in person and paying a huge premium to do so. I won't pretend I do it for moral reasons or even strictly to support the creators (although I do it in part to support the independent theater itself). It does keep me from feeling bad for also running a media server, on which maybe 1% of the content is newer than 5 years old, though.
I have almost never bought a physical copy of a movie -- and in my mind the IP holders are usually terrible curators of their own content. Physical media is provided in a horribly limited and anti-consumer format, tied to ephemeral standards and technology and often embedded with advertisements and few subtitle options. Digital products are, somehow, worse. Tied to a walled garden, with no true 'ownership', sometimes platforms like Amazon video will even make their own edits to movies, removing crucial parts for no apparent reason (the wicker man, avatar) and without marking it as abridged. They often make decisions that scream 'cash grab' (i.e. years ago when TNG came on netflix, I went to stream it and was shocked at the potato quality. Later re-releases were released in an un-cropped widescreen that included things like boom mikes because of the original intended aspect ratio of the show.) DRM is a nightmare. The product I want -- a file containing the media and only the media, which I can view however I want without logging into anybody's servers -- does not exist. And if it did exist, well, I do also take issue with paying full price for a file of a 40 year old movie, for example. I know there are costs associated with remasters, etc, but most of these are not remasters (and those costs are also much much lower than outright movie production).
A notable exception is outfits like Vinagar Syndrome, who as a labor of love dig up lost media and often re-cut or remaster / distribute it, and due to the low scale and lack of demand likely do not make much if any profit off it. I often do see showings of Vinegar Syndrome releases at my indie theater though or rent them from the one remaining video rental place (I'm unsure whether or not that benefits the production company).
It probably gets more hairy for people who watch a lot of new serialized media, which I do not.
I kind of wish people would think critically about the gradient of potential consumption habits when making their media choices rather than separating into pro / anti piracy stances, because it's an interesting and multi-faceted topic with a lot of considerations to be made.
They didn't do that. Listed considerations were purely practical.
Of course, then you're spending $10 to save $10....
I have the whole *arr stack setup with Plex running in the US just fine, but that's for sure not for everyone and was a few headaches to get up and running
Most VPN subscriptions are around $5, whereas netflix with ads costs $8, and $18 without ads. Even at $18 though, it's still not 4K, whereas you can easily pirate 4K versions with your VPN subscription.
To your point though, as I'm running my plex server on an old ~midrange laptop, 4K is pretty rough for me to stream as well. I'm sure better hardware fixes this, but that's higher cost. YMMV based on what hardware you have on hand to repurpose
Unless you're doing reencodes processing power shouldn't matter. You can serve 4K video on a 2010s router if you wanted to. If you're doing reencodes, why bother? Download an encode that's appropriate for how you're watching it. 4K for the big screen and 1080p for mobile. Skip reencoding altogether.
There is a difference.
If you have any sort of conscience you simply don’t want to fund these people. Don’t enable them. Let it wither. Nothing of particular value will be lost.
This applies to everything that comes out of Hollywood?
Big corporation - just inhumane greed beyond mortal comprehension.
Holywood - not only greed but also complete moral decay
It would even apply twice if it could but you cannot really steal a movie twice. Unfortunately.
Then why consume the stuff at all? What a weird stance. "They're all vile and evil, but I like watching shows, so whatever, tee hee - piracy is morally good now as long as I have this invented fiction in my head!"
What a disgusting response. Please, please grow up.
They make these few rare cases when they catch somebody so loud and showy that the rest of the flock prefers to sign all the TOS and don’t have this additional worry. It is a success story of manipulative scare techniques that copyright corpos mastered.
Most people prefer to be civilians than to be anti corporate combatants, even if it is perfectly safe in practice. This is normal.
The release there is usually a bit delayed to streaming releases though and will set you back more if you buy it new. The used market can be your friend here, especially for older media. IME local libraries might also have quite a good offering depending on their funding and priorities.
The clear downside here is that you can't really follow along with others though (if that's your jam) as these releases are mostly in-full and not per-episode.
The only DRM-free video TV media sources are usually non-legitimate (torrents etc.). Many shows/movies are also interestingly ripped from streaming sites first though. You can of course legally format shift your physical media for private use to non-DRMed files depending on your region.
I feel like we can’t even call it “advertising“ anymore. It’s such a misnomer. It’s basically data fracking and psychological warfare to make us all into little addicts. This whole industry built around chasing “the attention economy” is a social blight.
Thought about running both in parallel but that seems like a waste. Think I just need a migration day eventually
I point Infuse on Apple TV 4K's at it. It works, and cleanly.
Downsides: you have to pay for Infuse Pro to play some formats and deal with some audio codecs. It's IIRC $17 for a year, though, so pretty reasonable for continued development. Your non-technical friends and family can't do the initial setup themselves (it's shared over Tailscale, they can all use the same limited account on your plan), but anyone I'm going to let do this can ship me their Apple TV 4K and let me set it up for them.
Lately I've been working towards just using a webserver to host video files. Sure, it's not adaptive, but for goodness sakes it's simple.
Jellyfin + Infuse + AppleTV is basically bulletproof; however Swiftfin as a client has been working fine.
So I used copyparty[0] and used VLC and set a username and password.
I recommend copyparty if you just want something quick and easy actually. Just try it out on cheap VPS and just run it and forget it.
https://github.com/9001/copyparty
Am I missing something that I am not looking at? But won't jellyfin have the same issue, I think that plex has servers that you can connect from outside but the GP wanted to move to jellyfin and I was talking about that.
And, you can even have plex like thing by just having Cloudflare Tunnels/Tailscale + Copyparty too.
I’m always cheering for the farmers who are taking on John Deere for the right to repair.
Or Disney telling you they are exempt from killing someone in their theme park restaurants because you signed up to Disney+… https://www.bbc.co.uk/news/articles/c8jl0ekjr0go
https://www.allergicliving.com/2026/03/03/lawsuit-against-di...
"Disney dropped its bid to force arbitration over the streaming service’s clause in August 2024, following a barrage of public backlash."
And not because it was a clearly outrageous thing to do.
(If I recall the details correct, it has been a while since I read into that case.)
It now seems to be a "how evil can I be without it affecting our bottom line?" system.
The argument was not "they agreed to a EULA 5 years ago and therefore mandatory arbitration in all disputes with Disney".
This is a privately owned restaurant at a glorified shopping mall within the larger Walt Disney World resort. If you died due to a severe allergic reaction at a normal restaurant in a normal shopping mall in Florida the mall owners would generally not be liable unless there's something else going on.
The theory that Disney is liable here is more than anything based on the *restaurant featuring on their app.* The EULA for *that app* would certainly be relevant to this argument.
Now, the Disney lawyers also tried to argue that the Disney+ EULA would actually (at least plausibly) be relevant. That is more than a bit of a stretch, especially for a free trial from years ago, and I'd be surprised (but IANAL) if such a theory would actually hold up in court. Still, on a spectrum from "person died due to maintenance failure on a Magic Kingdom ride" to "person died from going to a restaurant featured on a Disney+ program", if you're arguing that the Disney+ EULA is relevant, this is a whole lot closer to the latter than the former.
>Now, the Disney lawyers also tried to argue that the Disney+ EULA would actually (at least plausibly) be relevant.
Well, you know, they also could have not done _that_. With it they deserve all the flak that they've got and more, simply because they resorted to a scummy tactic, whatever the reason.
and you are not allowed to criticize it or write about the size of it or how much meat there is in it or how filling it is to eat the burger.
and you are definitely not allowed to compare it to burgers from other companies.
So eventually that'll apply to McDonalds.
However, the luxury brands have the Soup Nazi's business model: https://en.wikipedia.org/wiki/The_Soup_Nazi
https://ppc.land/german-businesses-systematically-delete-cri...
To be fair existence of TOS is suspiring.
ToS can’t enforce completely arbitrary rules. They are still bound by the limitations of the law and the worst they can usually do is terminate your account.
> It's like McDonald's selling you a burger and telling you how to eat it.
And practically speaking they would be limited to telling you that you’re not welcome to come back and buy another one if you break those rules. They are not legally obligated to have you as a customer.
You can break the ToS all you want for how to use online services. The risk you take is that they decide they don’t want your money any more and turn off your account. In my opinion, that’s a fair trade.
I'd be surprised if all those stars align anytime soon.
And the way the resteraunt this right is by covering their walls with TOS text like an Egyptian tomb.
edit: Apparently not!
For clarity, and while the HN seems to imply that, that is not what this decision was actually about.
It was about the specific requirement that disputes be handled by binding arbitration. The circuit court was actually clear they weren't making decisions about the facts of the case, precisely because the arbitrator gets to make those calls.
Now, sure, that can mean "you lose" in practice, depending on the claim and the arbiter. And in this specific situation it's a death knell for the plaintiffs, because this was an emerging class action suite looking for a big payout.
But no, the 9th circuit has not found that companies have the ability to enforce "arbitrary terms of service" via a TOS update email. They only made a call on this particular term update, and they were clear that they did so because it does not represent an actual change to the service terms (only to the dispute process).
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 the stuff you get from the service even while not using the service, or about setting up competing products. It's like McDonald's selling you a burger and telling you how to eat it.
It is vaguely like that, but but I'm not sure the analogy facilitates understanding of this subject. McDonalds shouldn't tell you how you can eat your burger, therefore... companies must not enforce any terms on their services aside from those things. Why?
I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
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
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.
The point they were making (rightly or wrongly) seems to be that contract law just isn’t the right way of managing consumer-business relationships. I suspect that actually meshes with the intuitions of a broad swath of the population, who want a reliable, predictable, consistent, and consumer-beneficial set of norms and laws around all consumption so that it is easy to manage and understand when you are departing from the norm and to be able to confidently conduct a public life knowing that your purchases are not subjecting you to any surprising gotchas other than having lost the money and having acquired a product.
You could take this line of thought charitably in another direction to assert that “unusual” agreements are presumed unenforceable but not that there are no legal mechanisms for adding additional clauses.
USA: There is no solution!
Rest of world: slightly embarrassed look
There are legal terms and concepts like good faith, expected and unexpected terms, reasonable expectations, abuse of a legally unsophisticated party and so on. In other countries, neither the fiction that everyone reads or is expected to read the 10-page "dining contract" of a restaurant exists nor is it allowed (enforceable) to put any unrelated or unreasonable crap in there.
> This is one of these cases like gun crime where:
This is going off topic but I don't think that's going to go anywhere interesting, so why not...
> USA: There is no solution!
> Rest of world: slightly embarrassed look
Well presumably not the 20 odd countries with higher gun homicide rate than USA, but sure. One that did used to be counted among those ranks was El Salvador. El Salvador used to top the list just a decade ago and it was not even close! Today it's around par with New Zealand. Amazing! That is perhaps the most recent and dramatic case of a solution to gun crime being found. You are right that rest of the world is indeed embarrassed about that for some reason. You would have thought everybody would be overjoyed, praising it, looking to emulate it, all the self-proclaimed "experts" admitting they were wrong... but no. It's strange, everybody just has this slightly embarrassed look about it.
On the other hand, if the goal is to restrict the peoples' access to firearms, the solution to that in most other countries was not constitutional violations by their governments of course. So presumably the same solution for that in USA would be to amend the constitution so that such firearms restrictions could be implemented. Also very obvious. I strangely have not heard of any serious efforts by mainstream political parties toward this solution though. I can see there would be second hand embarrassment for them for not seeing the obvious solution to what they want.
We can't apply the El Salvador solution because what about the human rights of the violent criminals?!
I think that your response really hit the nail on the head and it raises the question my mind of how do we most effectively eliminate these kinds of malformed American-system brained thoughts from disrupting real and possibly even productive conversations about these kinds of topics?
The entire comment is thought terminating cliche.
Because a severe power imbalance allows for abuse, and governments should prohibit such abuse.
https://en.wikipedia.org/wiki/Unconscionability
Re-reading your post, you appear to be asking if the GP would ban all contract terms that aren't universally-reasonable. I don't think that's what they were saying, and it's not what I'm saying.
The purpose of unconscionability is clear, the question is what findings will trigger it? There is a spectrum of opinion on that. My position would be that, whenever it can be demonstrated by one court that a powerful entity did commit abuse via unconscionable contract terms, it should be noted by other courts and applied equally to other similar entities.
The US courts already do this, but the problem is they tend to take the narrowest possible application, and that's ultimately because they're deferential to the US Congress. They don't want to be making law, they only want to interpret the law they have. They want Congress to make law... but Congress doesn't seem very good at that. Most other country's systems are Roman law systems rather than Common law, which in practise means they tend to update laws and regulations more often, and the courts get their clarifications via updated laws rather than build up centuries of precendent.
https://en.wikipedia.org/wiki/Inequality_of_bargaining_power
We shouldn't use votes to squelch opinions we don't hold. We should use them to improve the discourse.
In their frothing haste to put down my heresy here https://news.ycombinator.com/item?id=47307056, not one single commenter took just a second to understand what I actually wrote. Most of the responses aren't even coherent on their own, much less address my questions. I did not advocate for the status quo, I did not even assert OP was wrong. I invited them to provide some reasoning for their proposal. Quite troubling, even cultish behavior.
I try to gently call it out here when I see it, though, because HN is the one user-curated site where I still feel that people come to get to 'truths' versus 'agendas'. I want it to stay that way!
> I'm not saying any term should be enforceable. Contract law has a long history against that. I just wonder how and where you draw the line and what existing law is insufficient.
This is not a magic list of 3 things that I think is complete.
I think there is a compromise between allowing companies to add arbitrary terms, including some which are enforceable but (by my feeling) unreasonable, and excluding unreasonable terms completely with a blanket ban, which no doubt would result in some companies being unable to add reasonable terms that are not in the list.
I think if we picked the 3 terms I outlined in my comment, the result would be a more pleasant situation than the one we have.
You could just say I disagree about what is an enforceable term. The point of the analogy is to show how ridiculous I find the current judicial reasoning, which is something along the lines of "if you don't like the term, you don't have to use the service, so it doesn't really matter how restrictive the terms are". I really think this is how particularly US judges think about this sort of thing, and I think it does a lot of harm to society. People find it obviously unreasonable for McDonalds to say how you can eat your burger, or for a book store to say what you can do with the information in your book, but when a service tells you how you can use the data you get from them, it's fair game. It's ethically inconsistent.
Okay, but you do think it should be an extremely limited scope of things along those lines that parties may form contractual agreements around. It's just such a radical idea that I was hoping to hear some interesting reasoning behind it. If it's just things seem like they might be more pleasant if we did that, then sure thing that's great, certainly would be nice if things were more pleasant we can agree on that.
"Use implies agreement" should not be allowed. Probably even "check the box to agree" should not be allowed. If a company wants to force all their customers to agree to something in a legally binding way beyond the basic standard of what the law requires (things like don't violate our copyright, don't DoS us, etc) they should have to mail a contract and wait for the customer to sign it with ink and send it back. (Well, maybe not literally that, but at the very least some similarly weighty process which makes it clear to all parties that this is something they need to read carefully and take seriously.)
It's nonsense to on the one hand treat a ToS like "no big deal" and expect everyone to passively agree to it with no friction or push-back while at the same time treating it like a contract signed in blood as soon as lawyers get involved.
Added to that is the forced arbitration clauses they exist in most ToS. See the example about Disney getting out of a wrongful death suit at a theme park beciaee the plaintiff had a free Disney account for a PS5 that he bought many years earlier.
Tl;dr - buying a piece of software or home appliance shouldn’t come with more strings attached than buying a piece of real estate.
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.
> 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.
Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it? Sounds horrific, like a dictatorship. The government is not my guardian and does not do my thinking for me. I get that many people are subservient and would much prefer that, but that's no good either. There's an enormous middle ground between anarchy and "the state intervenes to allegedly 'balance the scales' in every aspect of peoples' private lives".
Power being disproportionate is obviously not sufficient to void terms - that's not what the comment you're replying to said. It is necessary to void terms when there is a power imbalance.
> Should the state just prohibit all agreements between two parties unless the state's adjudicator decides they are exactly equal in "power" and permits it?
This is obviously ridiculous and makes me think you are not arguing in good faith. Terms have to justify their existence according to logical principles that we argue about. It does not follow that there has to be a "state's adjudicator"! I am just describing how democracies come up with laws - it is not some fantasy Orwellian nightmare.
> I get that many people are subservient and would much prefer that
Ironic comment!
What are you trying to say here? I didn't claim the previous poster didn't think it was necessary, I was just commenting on the sufficiency part of the claim -- sufficient being a subset of necessary.
> This is obviously ridiculous and makes me think you are not arguing in good faith.
What is ridiculous is that you're pretending not to recognize a reductio ad absurdum, particularly in the context of a reply that included McDonalds dictating how you eat a hamburger! Makes me think you are not arguing in good faith, I may be forced to report you to an adjudicator to rule on how we are permitted to debate.
> Terms have to justify their existence according to logical principles that we argue about.
And that's exactly what I'm asking about. OP made a claim about what terms were "justified" and I'm trying to find out the basis for them.
> Ironic comment!
It isn't, you're just unable to address it.
Sufficient is not a "subset of necessary". "Sufficient" in this context means a reason that voiding terms is justified. There being a power imbalance does not mean that the terms should be voided. If the more powerful party stipulates "You may not continue to use the service if you use it to commit a crime", then nobody would argue that the term must be voided just because the more powerful party stipulated it. That is why when you say "the state's adjudicator decides they are exactly equal in "power" and permits it?" this is neither a reductio ad absurdum nor logically valid. Nobody said or implied that any part of the process should be "void the terms if the parties are not equally powerful". You just made that up.
What they did imply was "if the terms are otherwise not justified, and the parties are not equally powerful, you may have to void the terms". In other words, it would be necessary to void the terms.
> What is ridiculous is that you're pretending not to recognize a reductio ad absurdum
It isn't a reductio ad absurdum, because you took the argument "all TOS terms except these 3 categories should be unenforceable" to the logical extreme of "there should be a state-appointed adjudicator who reviews every contract". I am simply advocating for a particular law that should be published.
> OP made a claim about what terms were "justified" and I'm trying to find out the basis for them.
The background reasoning is that service providers should not be able to dictate your behaviour unless it is behaviour that directly affects the service - either because you're using the service in an unethical way, or you're making the service unreasonably hard to provide, or whatever. It happens to be the case I can only think of a handful of terms that have this property. Maybe there are more.
> It isn't, you're just unable to address it.
I think we agree, I am unable to address such titanic arguments as "many people are subservient". I will meditate on these words.
It's pretty simple. You can write whatever you want into a contract, but if you want to enforce an unreasonable term, you will lose in court and might be forced to remove the term from current and future contracts. That's how it works everywhere. The difference between legislations is just what is considered a reasonable term.
This is a quaintly (US) American perspective.
The government is and does literally both of those things, and the arguments in these threads are about the fine details of the manner in which they should continue doing so in the future.
This is a strawman and you know it. Please at least make an attempt to argue in good faith, otherwise there's no point.
Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.
Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.
See? Not particularly conductive to discourse, is it :D
Uh yes? And you clearly know it too. It was a bit like your McDonalds strawman.
> Please at least make an attempt to argue in good faith, otherwise there's no point.
No need to get in a huff when we obviously both know what we're talking about. It's not conducive to the discussion.
> Of course there should be a reasonable middle-ground. The current situation with completely bogus ToS is not it.
I don't know exactly what the current situation with completely bogus ToS is, I'm willing to accept it could be adjusted. I was asking specifically about your proposed adjustment to it though. Your reasons for the new framework you suggested.
> Let me turn it around: should the state just abandon it's duty of creating an fair and equal playing field between large corporations and clients and let society devolve into a corporatocracy where laws are enforced purely to further corporate interests? Because that's exactly what you seem to be suggesting.
That isn't what I was suggesting. I was asking you how you came to your conclusion in the previous post. (EDIT: Sorry you did not conclude that, the grandparent did the parent of my first post you replied to, but you posted seemingly in support)
I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can make the screen go away temporarily, but there is no options to say "no, I disagree".
The US breaking its contract law to treat non-contracts as contracts is one of the most insane things I've seen a legal system do to itself.
The key difference, is that the US is many jurisdictions (Federal + 50 states + a lot of others, from counties to cities to territories to MANY others), and the variance amongst those is high.
The key thing well regulated places like Sweden get right, is that in consumer contracts you have minimum bars that you must meet regardless of what you can get the consumer to agree to. So, for instance, return policies, for goods bought online have minimum standards they must meet.
In the US, these things have huge variability. There are well regulated states, and well, the others.
Yes, but Swedish contract law actually is like this. A contract is a specific agreement, it can never be "Oh well, you can add provisions as you like if you send them to me" or "I will pay whatever".
I negotiated my mobile phone or internet contracts again and again, to get better deals. I threaten to leave, they throw a bone. Because they know I have options. Providers who know you don’t will squeeze you however they please.
Like to put it another way how much of this is 'We must do it this way because Americans are simply built different and we're just special' vs 'this makes a handful of people a bunch of money and they have teams of lobbyists, marketers, and lawyers to normalize this kind of stuff in society over time'?
The US's quagmire of incoherent laws and many jurisdictions seems to be a bad combination of:
* Apathetic voters that are raised on a media diet of "big government bad", which impedes any regulations on a federal level. (Note that this is irrespective on if the voters actually want a small government, it's what they're led to believe.)
* Politicians that don't like to give up power; there's an unusual desire for local/state US officials to claim responsibility and get very pissy when the federal government steps in with a standardized solution. This is very unusual compared to other countries; punting responsibilities to local officials in other countries is generally seen as a way for politicians to abdicate responsibility by letting it die in micromanagement and overworked administrative workers and isn't popular to do anymore these days. (This is also a two way street, where federal US lawmakers can abdicate making any legislation that isn't extremely popular by just punting it down to the states, even if they have legal majorities.)
* The US has a court system that overly favors case law rather than actual law. Laws in the US are permitted to be painfully underdefined since there's an assumption that the courts will work out all the finer details. It's an old system more designed around the days of bad infrastructure across large distances (like well, the British Empire, which it's copied from). It's meant to empower the judicial branch to be able to make the snap decision even if there's not directly a law on the books (yet) or if a law hasn't actually reached the judiciary in question. The result is that you end up with a bunch of different judiciaries, each with their own slightly different rules. It also encourages other bad behavior like jurisdiction shopping where people will try to find the judiciary most favorable to them, crafting "the perfect case" to get a case law on the books the way you want it to get judges to override similar cases and so on and so forth - in other countries, what the supreme court judges doesn't have nearly the same lasting impact that a decision in the US has.
* And finally, the entire system is effectively kept stuck in place because lobbyists like it this way; if they want to kill regulation, they just get some states to pass on it and then hem and haw at the notion of a federal regulation. Politicians keep it in place on their own, lobbyists provide them the grease/excuse to keep doing it. (And those lobbyists these days also have increasing amounts of ownership over the US media, so the rethoric about voters not liking big government regulations is reinforced by them as well.)
It didn't end up this way on purpose; the historical reasons for this are mostly untied from lobby interests (which is mostly just "the US is the size of a continent in width", "states didn't actually work together that much at first" and "the US copied shit from the British Empire"), but they're kept this way by lobby interests.
If you have an agreement that says one party can announce changes, you don't have a contract, because those changes were not agreed to.
To me the insane part is that contracts don't have to be registered with the courts (or some qualified third party) ahead of time.
Like each party could show up with their own piece of paper (or not be able to provide it). Which is largely the issue here in that one party is showing up with a 2021 document and the other a 2023 document.
Yes, of course.
We don't have any rules about contracts needing to be written down or registered or anything of that sort. Even verbal agreement are valid, and you are entering into simple contracts even when you buy something in a store.
https://newsroom.spotify.com/2025-09-24/spotify-terms-creato...
These users have agreed to a monthly contract or, if there is no money paid, a contract with no finite end date but with provisions to change terms, essentially terminating and restarting. So the service provider has decided to amend the contract at the end of the current (one month) contract in the first case, or on some date arbitrary date in the second (unpaid). The users are free not to accept the new contracts.
So nobody is just changing a contract mid stream. Use of a service month-to-month implicitly agrees to this: your ability to stop using and paying them on the 1st of the next month is their ability to change the terms on which the service is offered next month.
And btw, everyone on here hates this, but I don't know how else it could work. The idea that if I sell a customer one month of a paid saas on a monthly plan I'm somehow obligated to never change my terms or price forever as long as he or she keeps paying is beyond absurd. If people want stable terms, they need to find software that will sell them annual or multiyear contracts.
Can you imagine buying a car in the seventies and a month later finding a technician under your parked car making adjustments to it? You’d kick them out and call the police. But put an internet connection in between and it’s ok.
Same goes for wiretapping (compare Nixon vs current state), unlicensed hotels and cabs being ok when booked by an app, and so on.
I get emails from time to time that "Policy X has changed and will take a effect in X weeks" so at least I'm given advance notice, and am basically OK with that approach as long as the changes are spelled out clearly and not hidden in hundreds of pages of legalese. Maybe an LLM would help here, and translate what the new changes in terms really means so I can decide whether to continue with the service or not. In general I'm OK as long as I'm given enough notice and it's clear what is happening.
The same thing happens with pricing. What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that. How is a T&C change different?
Where it gets a little muddy for me is hardware with services attached (a new EV, etc)… you pay $60k for a car, it really shouldn’t be possible to force a new ToS on something they has physical ownership. And definitely not possible to brick or de-option the car due to refusal to accept new ToS.
If the company would like their T&C to carry the force of a binding contract upon me, then yes, keeping track of my agreement seems like the absolute bare minimum they must do.
Either these things are real contracts or they are not. The idea that it's too onerous for a company to keep track of its contractual agreements is absurd. That's giving them all the benefits of a real contract with none of the obligations.
Of course you do. I have a fixed contract with my mobile carrier - if they want to change rates, tough luck. Once the current contract expires, they can indeed notify me that the new contract will auto-renew with a new rate, and I can either accept it or choose a new carrier. But they very much can't change prices, or alter services rendered, while the current contract is in force.
This all just needs statutory laws and eliminate TCs for basic services. It is a scam.
Rental contract sure. Employment contract yeah.
I bet a single set of statutory rights for consumer and provider could cover most things.
B2B is different.
Of course it irks them much to not be able to sell me less for more. But they can't do anything short of disconnecting me and that is unspeakable for a mobile operator.
I like this very much.
Otherwise, force the user to accept the new terms affirmatively. Then offer to refund any money if the user does not.
Maybe that's a good thing? Imagine if changing the T&C required cancelling everyone's account and then letting people sign up with new accounts if they still want to do business. That would probably make any T&C changes much harder to justify, creating a balance against what many see as abusing T&C updates.
The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies (probably by the companies too).
I have the same in the car. Been postponing for 2 years now.
I wonder if this can be weaponized by users too (probably no legal basis for this), just send them a new T&C again and again and say delivering the service is consent. Force the companies to say the quiet part out loud: users are not allowed to have the same liberties as the company.
Yes, everything is becoming more and more convenient for big corporations while individual citizens need to navigate an ever increasingly complex world. Laws are designed to protect capital not individual citizens nor society. That never ends well.
That’s domestic terrorism (charges)
I still have the account. Do you think it worked? I’ll need to test that in court.
That's a very roundabout way of saying it. The T&C is a contract. They should not be able to pretend you agreed to a new contract.
Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too.
So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates.
> The company should not be able to change those conditions without my explicit permission.
The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service.
So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."
I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.
Yeah, because, as I said: the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
So, when they terminate that old contract, it's based entirely on the terms of that old contract. You agreed to this up-front.
What's the alternative? Force companies to offer indefinite contracts?
Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised.
If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous.
Notification alone, is not enough. Agreement is required.
If you want to continue using the services, and know about the change, then that's legally, as cited in the actual court documents in OP, an agreement to the new terms.
Here, the court applied an “objective-reasonableness standard” to find there was “unambiguously manifested assent”.
Which could only be true if we give new, contrarian definitions to the words “objective”, “reasonableness”, “unambiguously” and “assent”.
What’s actually happening here is companies have been given the power to write arbitrary, custom laws defining their liability and responsibilities to their customers. It’s a bad situation because it’s not possible for people to actually know what the deal is. It’s not even that good for the companies in the long run, because they all end up coming off as used car salesmen
You win a case, but now Tile/Amazon === sleazy.
When your product is tracking locations there’s a trust barrier you need to overcome. How much would you trust Tile (Amazon) now?
Not by reading the Terms of Service at purchase; it could be changed, and ending up in the spam folder counts as assent.
"I do not agree with your new TOS and will continue under your old TOS, and I will continue to use your service". And see when they will close your account down.
> Now if most of their customers did that
If most customers did anything active we'd have a radically different society. The difficulty is getting people engaged to fight back against the system (I'm not absolving myself from being part of those people)
https://www.themoscowtimes.com/2013/08/14/man-who-outwitted-...
Too bad that v1.0 of the ToS their victims "sign" forced all disputes into their lap-dog arbitration system.
It's really no different. In fact, in some ways it's worse because McDonald's can send the contact via certified mail.
These courts just want to clear their dockets which is why they reversed.
You have made no attempt to justify this claim, which, I suspect, you pulled out of thin air, though it amounts to a provocative accusation of significant ethical bankruptcy and judicial malpractice in "these courts" (whichever courts you may be referring to). Do better.
Like if you're a lawyer and you read this do you go "My client will never win a case like this?" or do you go "we should go to trial"?
Sure you won't get summary judgement but if the courts rule this way once they can rule this way again.
I'm only a law student and not a practicing lawyer so my intuition for decisions to litigate are not strong. That said, my understanding is that there were some pretty notable assumptions and questionable doctrinal maneuvers in the opinion that a future judge might be hesitant to also adopt. An example of each: (1) the court states that users who submit an email during registration assume they will receive TOS amendments by email and (2) the court doesn't seem to distinguish between TOS formation and amendment. These, and others, might be correct assumptions and reasoning, but the opinion doesn't convince me of that, so maybe another judge wouldn't be convinced either.
There is legislation proposed to end forced arbitration in consumer contracts like ToS.
https://hankjohnson.house.gov/media-center/press-releases/re...
Sadly, this bill has been around since 2007, introduced by the very same Hank Johnson! I would love if Congress would put an end to the forced-arbitration bullshit that so obviously does an end-run around your 7th amendment rights and makes a farce of informed consent, but alas, they couldn't even get it through when Democrats held the presidency, the house, and 60 seats in the senate.
Due to our contract with a Nigerian prince who is seeking to exfiltrate his family wealth, your last month's bill of $14.99 will be refunded in its entirety, and the fee schedule from now on will be as follows:
[6 pages of legalese]
$39.99
[3 more pages of legalese]
You can opt out at any time by sending a notarized letter to our legal department at ___. Should you wish to continue using our service, we will auto-renew you at the new rate on your next login.
No one is reading them, and it would be practically impossible to do so. Signing something you cannot practically read and understand clearly does not mean you actually accept them.
How can we wake people up to this absurdity? The law should exist to help society. When it is not helping, reform it.
[1] https://www.nytimes.com/2026/03/09/us/billionaires-federal-e...
Obviously, this doesn't exist in the USA but does exist in (for example) the Netherlands. I would recommend lobbying in your country for such laws since in practice the vast majority of contracts like these that people face aren't actually negotiated nor negotiable.
Cases cited from '98 and '00: https://en.wikipedia.org/wiki/Clickwrap
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
Agreeing to say, forced arbitration with a company, because you signed up for say, their streaming service, is obviously unconscionable. What would be even worse if those TOS said that you have to go into arbitration in matters unrelated to the streaming service.
Yet, this is what's happening. Disney used such an agreement (obtained through Disney+ TOS) when a man sued them on behalf of his dead wife, who died in their parks. It's common practice now to have these clauses in TOS, e.g. Discord has it too.
That said, they do also say this:
> we determine that Appellees received inquiry notice of the Oct. 2023 Terms. Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” Godun v. JustAnswer LLC, 135 F.4th 699, 710 (9th Cir. 2025), and we do not hold that notice by mass email establishes inquiry notice in every case.
So the HN headline is misleading at best.
(They also note that, while they should consider how normal internet users behave, they can't do this because "there is very little empirical evidence regarding" the question. So they substitute a discussion of how reasonable they find Tile's actions in the abstract.)
https://www.independent.co.uk/news/world/europe/read-the-sma...
By continuing to send email communications, you hereby agree to the following terms of service:
I want a Winnebago. Fully equipped, big kitchen, water bed. AM-FM, CD, microwave. Burgundy interior.
They then said: “you are accessing the service, so you consent to the TOS!”
That should not count. Nor should a accessing a service to delete your account, file a complaint, ensure you aren’t being stalked, etc.
Why the heck is the court completely oblivious to that fact when weighing the facts on each side? You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once? (!) The court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal?
> As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.
Well yes, they did, but:
> Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.”
...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight?
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case.
At least they say their ruling doesn't generalize...
> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder.
I think it's rather relevant that she affirmatively searched for and found the email?
It is. There are lots of relevant facts. Did I claim otherwise?
Statistically speaking, most people use one of the biggest email providers, which use their own models to detect spam (or even quietly drop messages). If you're doing an unpopular TOS change, why not set the mail up to still be RFC compliant but in such a way where the mail isn't going to be allowed through by any of the providers. Then you can just claim the problem is userside.
For example, the Message-ID header is technically not required (SHOULD rather than MUST), but as a spam detection measure, Gmail just drops the message entirely for workspace domains: https://news.ycombinator.com/item?id=46989217
No, you're even harsher than the court. The court explicitly looked at common practices by consumers, not just who-picked-what or who-controlled-what:
>> Because Tile should have known that at least some of its users do not closely monitor email, and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.
The court explicitly said Tile was responsible for making sure people read what it sends, and you're disagreeing with it! Clearly that's relevant!
The court somehow just failed to look at the spam classification question at all, which is baffling. They could've looked at the spam classification and said something similar here, yet they didn't. Instead they ruled as if it's the same situation as one where 100% of the problem is due to the user's negligence, which it clearly isn't.
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".
Even if you are OK with the idea that a user can be presented updated TOS with no option to disagree (I don't, but put that aside for a moment), it should still require a mechanism that actually guarantees (or at least verifies) that the user has seen that the terms are updated. Email is not that. (An unskippable notice on login to a web service would be.)
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...
You think she marked it as spam before reading it rather than the courier?
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
TOS simultaneously became extremly important, commanding CEO attention and became completely ritulized.
I'm surprised that the legal profession has tolerated this is escalation of dysfunction.
Society coalesces around sets of social expectations (some of which are regulations or laws), and these formalized expectations are a very strong defining factor of society itself.
When I tried to resolve it a couple of years ago I received boilerplate emails informing me that the migration period had ended.
So if you deal with companies that simply don’t honor their contracts—companies like Microsoft and Mojang—you don’t even need use to imply consent, because they can just lock you out of your purchases and tell you to pound sand.
And target some user with some money to lose and sue them for it.
You often don’t determine what goes to junk, that’s decided by thousands of other people and the email provider. Junk folders often auto delete so there’s no recovery.
If you have not proved that the user who agreed to an agreement was the user using the account, then you could very well be attempting to prosecute the wrong person.
It is very possible for one user to steal the account credentials of or impersonate another user.
For example, Police officers routinely impersonate other users in order to collect evidence.
A reasonably prudent internet user gets half a dozen of these a day, and prudence would dictate the obvious futility of reading all of them, much less remembering the terms bound by each service.
It does mean that TOS would be almost wholly unenforceable, but that may be a bridge we need to cross as a society. These documents have gotten too large and updated too frequently to reasonably bind the population at large.
> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder. […]
> Doe “never knew that Tile sent” the Oct. 2023 Notice and so never “read any revised or updated Terms.”
> The district court held that neither Broad nor Doe assented to the Oct. 2023 Terms.
So then it was challenged, and the appeals court gets into the weeds: were the Appellees “on inquiry notice of the Oct. 2023 Terms”? (“Inquiry notice” is clearly a specific legal term, I can’t comment on its precise meaning.)
The entire thing seems to hinge on whether appropriate notice was given: it seems to be accepted by all parties and case law that “continuing to use after such-and-such a date implies consent” is okay. (This is explored at the end of the document: simply using the app is treated as “unambiguously manifesting assent”, presuming inquiry notice.)
The court decides: yes, it was sent in the appropriate way and clearly marked and described. And
> Although the email did not say specifically that the arbitration agreement would be updated, reasonable notice does not require the email to discuss every revision.
They do say
> Tile could have done more to ensure that all its users were on inquiry notice of the Oct. 2023 Terms. Tile could, for example, have interrupted users’ next visit to the Tile App with a clickwrap pop-up notice. […] Because Tile should have known that at least some of its users do not closely monitor email, […] and Tile should have furnished additional notices, this factor weighs against finding inquiry notice.
They conclude: two factors for, one against, and thus determine that inquiry notice was received, although Tile didn’t handle things properly themselves, and should have done more.
But they avoid setting this as universal precedent:
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” […] and we do not hold that notice by mass email establishes inquiry notice in every case.
—⁂—
This is my interpretation from a brief read of this interesting-sounding document. I’m neither a lawyer nor American. My understanding is almost certainly incomplete. I think I have avoided inserting any interpretation of my own, others can do that.
Doe is a bit more interesting, since she re-downloaded the app, and they're saying that in-and-of-itself is sufficiently clear intent/consent to the current Terms of Service
("Doe unambiguously manifested assent to the Oct. 2023 Terms by downloading the Tile App in March 2024 and using the Scan and Secure feature in attempting to locate her alleged stalker’s Tile Tracker.")
It seems likely that someone, somewhere, will turn LLMs against monitoring TOS' and help customers provide feedback when they want to but might not know how.
Call me when the only court that matters makes a move.
It looks like a filing of appeal.
The issue is here is quite narrow: it concerns if cases need to go to arbitration or not or if the Northern California district court has jurisdiction. This concerns a change in the ToS (in October 2023). So, first off, the notion that can enforce arbitrary terms this way is false.
There's case law and legislation that the burden on the party seeking arbitration received assent for that and all this ruling does is say that sending the terms for that to the user-supplied email address combined with continued use of the app or website is sufficient to show that.
It's really no different to say that if you send someone a letter then that qualifies as notice. If that goes to your spam folder or you choose not to read it, that's kind of your fault.
But no, this isn't carte blanche to imply consent for any and all changes in ToS sent by email from continued use.
Basically the case met two of three factors and so they said yeah probably but its not establishing precedent because each case is special.
> https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...
It seems less likely to (randomly) have the same panel on two higher profile cases so close to each other:
> https://courthousenews.com/ninth-circuit-keeps-block-on-dhs-...
So I'm wondering if it is some procedural thing I am not privy to?
Never sign or use anything.
I have had emails never delivered to me, not due to my own fault but the service provider filtering it away before I could do anything. It is also dangerous to assume "use implies consent". I am sure there are other ways to ensure terms of use to be changed; if it is a web-application then one could only resume using it if the services were accepted before.
Got it.
I don't understand how a community such as this, as connected as it is, can't back channel a message to Google brass to do something about these lockouts, which occur frequently and are unnecessary. There is no way Google doesn't know about them.
Gmail is an essential piece of pervasive personal infrastructure, upon which hundreds of millions of people rely. People are losing irreplaceable data for lack of care on the part of Google. The cost of providing a way to prove identity while maintaining security ought to be part of the cost of doing business for Google as it provides Gmail.
Surely there are some Google employees lurking who can chime in on this frustrating neglect.
It’s not that the executive don’t know, it’s that they don’t care.
https://play.google.com/store/apps/details?id=com.ringapp
They slip "By using this app, you agree to Ring’s Terms of Service (ring.com/terms). You can find Ring’s privacy notice at ring.com/privacy-notice." into their app update changenotes for every update.
To be fair, not all people in business or government prioritize "the all-mighty dollar" over everything else. Unfortunately, those who don't usually have principles; those who do often are willing to break rules. This is not an even match.
email is notorious for arbitrarily not being delivered due to "spam/scam" filters misclassifying things
Seriously, WTF? We know the leverage we all have but we refuse to use it because "convenience".