Web Contracts Can't Be Changed Without Notice 169
RZG writes "The U.S. Court of Appeals for the Ninth Circuit ruled on July 18th that contracts posted online cannot be updated without notifying users (PDF of ruling). 'Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side,' the court wrote. This ruling has consequences for many online businesses, which took for granted their right to do this (see for example item 19 in Google's Terms of Service)."
Time Limited Contracts (Score:1, Insightful)
And of Course (Score:4, Insightful)
Not a big issue (Score:5, Insightful)
Any site that would change its terms without some kind of notice to users has been operating in cowboy land anyway.
Kind of sad (Score:5, Insightful)
Probably not a binding contract anyway... (Score:1, Insightful)
Re:Kind of sad (Score:3, Insightful)
Is this still true if... (Score:1, Insightful)
I remember in many TOS or EULA type documents that they often state something of the following:
"We reserve the right to change these terms at any time without notice."
Does this negate all those agreements?
Furthermore... (Score:4, Insightful)
Big corporations heaving a big sigh of relief. (Score:4, Insightful)
The online companies just have to include "Contract terms have changed Click here to read, click here to ignore it and go to the site" flash screen to comply with the new ruling.
So it is all fine and wonderful and dandy in the corporate world, and peace and serenity will continue to reign in Ye Olde Country Club.
Re:Bad news (Score:3, Insightful)
Re:Kind of sad (Score:5, Insightful)
Re:Time Limited Contracts (Score:3, Insightful)
It would appear the relevance of this is that you can insist that service providing companies be bound by the contract that you signed up with, rather than whatever their lawyers came up with in the meantime. In other words, that favorite phrase "we reserve the right to change the particulars of this contract" is non-enforceable.
Re:Does this kill GPLv2 "or later"? (Score:4, Insightful)
An agreement to agree is not an agreement (Score:5, Insightful)
This is a sound decision. There's a classic principle of English common law that says "an agreement to agree is not an agreement at all". A contract to agree to terms not yet defined is not an enforceable contract. This is standard contract law.
The actual decision [uscourts.gov] says:
Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side. Indeed, a party can't unilaterally change the terms of a contract; it must obtain the other party's consent before doing so. Union Pac. R.R. v. Chi., Milwaukee, St. Paul & Pac. R.R., 549 F.2d 114, 118 (9th Cir. 1976). This is because a revised contract is merely an offer and does not bind the parties until it is accepted. Matanuska Valley Farmers Cooperating Ass'n v. Monaghan, 188 F.2d 906, 909 (9th Cir. 1951). And generally "an offeree cannot actually assent to an offer unless he knows of its existence." Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts 4:13, at 365 (4th ed. 1990); see also Trimble v. N.Y. Life Ins. Co., 255 N.Y.S. 292, 297 (App. Div. 1932) ("An offer may not be accepted until it is made and brought to the attention of the one accepting."). Even if Douglas's continued use of Talk America's service could be considered assent, such assent can only be inferred after he received proper notice of the proposed changes.
Companies have been trying to get away with something that has no basis in law. Finally, someone sued on that issue, and won.
The Register points out that this is consistent with UK law [theregister.co.uk]. That's not surprising. This goes back to ancient common-law traditions. The Register also points out that the issue of whether terms can be changed when the consumer has an ongoing obligation to the seller (like a cell phone service agreement) has been argued in Britain and decided in favor of consumers.
Re:Time Limited Contracts (Score:3, Insightful)
Re:Changing on-line agreements in not uncommon (Score:3, Insightful)
The fact that the service is called 'unlimited' doesn't mean all aspects of the service need to be unlimited.
Please, tell me I did not read that correctly: they have ads that say one thing (or every sane person will think they say it, which as a matter of fact is the same when advertisement is involved in court), but the contracts say another thing, and people should just swallow their 1 year contracts?! And of course it is best when users don't know the actual limits, you want to keep people happy, and it is easier to achieve this if they don't know they're ripped off.
Re:Time Limited Contracts (Score:3, Insightful)
Those agreements are redacted by lawyers and go through countless revision cycles before they are approved. It doesn't hurt them to use their next sales email to point out that effective whatever date, new terms kick in, a link to read the new terms, and instructions on what to do if you do NOT agree with these. For example, if you don't agree with the new terms, you are allowed to close your account without penalty.
Re:Not a big issue (Score:4, Insightful)
If you managed to be so lazy as to not take any of those opportunities to know what you're getting into, then you deserve what you get. Even at that point, though, you could also use any number of resources to get the older installer with the older user agreement that you agreed to, while continuing to use your purchases.
It's not duress, plain and simple, because you're not being forced to do anything with your existing purchases. There's no leverage on money spent by you and no one threatening to make worthless your investment. The songs you already purchased won't stop working if you don't update. You just won't be able to make NEW purchases if they make changes to the store.
Re:Does this kill GPLv2 "or later"? (Score:3, Insightful)