




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)."
Booh (Score:4, Funny)
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Re:Booh (Score:5, Funny)
Nope. They would just wonder who that guy is getting out of the limo and into the helicopter.
And of Course (Score:4, Insightful)
Re:And of Course (Score:4, Informative)
Re:And of Course (Score:5, Informative)
Re:And of Course--An Excellent Reason... (Score:2)
This sounds like an excellent reason why this ruling shouldn't be appealed to the SCOTUS. Limit the full damage of this ruling to the Ninth Circuit alone for now.
Re:And of Course--An Excellent Reason... (Score:4, Informative)
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Re:And of Course (Score:5, Informative)
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.
Re:Not a big issue (Score:5, Interesting)
This is not an isolated incident, there have been numerous clarifications coming out that will help the internet become a more legally defined avenue through which to conduct business.
To see another example of courts starting to actually understand what they are ruling on you need look no further than today's
I have been following both court rulings and political decisions related to the internet for some time now, and I am finally starting to see some glimmer of hope that the most empowering utility of our time will not go down the crapper due to the ignorance of those empowered to regulate it.
Of course, there is still the net neutrality issue... but at least there is some movement toward understanding.
Regards.
Re:Not a big issue (Score:4, Funny)
Brokeback Mountain land, that is.
Re:Not a big issue (Score:4, Informative)
Without accepting the new license, itunes does NOT open.
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IANAL, and I am not an iTunes user, but since iTunes is a service which must be used to gain access to songs that have already been paid for, it seems that this would qualify as a contract entered into under economic duress [wikipedia.org], and would therefore be unenforceable.
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.
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The contract is valid as long as it's legal and the user agrees with it. Although most Terms of Use contracts contain the "This is subject to change" clause, the law may go against Blizzard if they try to make an unreasonable change. If the change is pretty harmless, it's probably easier for Blizzard to refund the subscription rather than go to court, even if they're pretty sure they'd win.
Kind of sad (Score:5, Insightful)
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No it's not, many contracts get changed after they have been agreed to. An example I've seen myself is lease agreements - when you renew your lease it can be a lot easier to revise the original contract (corrections are made and signed by both parties). I've also seen where the renewal is an "addendum" to the original contract (signed by both parties). Times change, contracts get renegotiated - you just need to be fai
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That's entirely different. But what if two parties signed a lease agreement, then the property owner goes and makes changes to it and then sues you for violating the new changes that you never signed to.
Re:Kind of sad (Score:5, Insightful)
Clickwrap/shrinkwrap usually binding contracts ... (Score:2)
In the U.S. I believe it is called an adhesion contract and they are generally valid as long as the terms are reasonable, reasonable to a judge not slashdot readers.
Re:Clickwrap/shrinkwrap usually binding contracts (Score:4, Informative)
In the U.S. I believe it is called an adhesion contract and they are generally valid as long as the terms are reasonable, reasonable to a judge not slashdot readers.
Or something that wouldn't have been agreed to, had any reasonable person actually read the contract. Another way of looking at it is that if the offerror of the contract had reason to believe it wouldn't have been agreed to had the terms been known, the terms are definitionally "unconcionable."
C//
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Or something that wouldn't have been agreed to, had any reasonable person actually read the contract. Another way of looking at it is that if the offerror of the contract had reason to believe it wouldn't have been agreed to had th
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IANAL, but taking Google's TOS as an example, I think it's a license, not a contract. Reasons: 1. They don't call it a contract; it's a "legal agreement." 2. There are no negotiations, and no way to submit ammendm
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Actually the is actually even LESS fair than that...
They can change the contract without any notification and often include language that says "continued use of the service is your agreement to the contract."
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1) Part X can make whatever changes he feels like to this contract at any time, and Y shall be immediately bound by such changes. X, does not have to notify Y of the changes in any way, it is Y's responsibility to check the contract continously.
Is very obviously loopsided to the point where in many jurisdictions it is no longer a valid contract. It in effect changes a two-sided contract to become a one-sided dictate.
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Things like 'opt out' or continued service as a condition of accepting all subsequent contract changes has to be spelled out very carefully in the original terms to be enforceable.
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For that matter, I'm just on the edge of getting my wife a second computer (Linux) so that I can disconnect her Mac from the internet. Every EULA that I've read has been "not too horrible...for the most part", but th
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Hold on a second. Why is it that when we sign up for a web site we don't just get an RSS feed of the terms of service? If that was standard practice then the courts might have ruled the other way.
I don't know why anybody would think an online contract would be any different. The whole idea of changing a contract after someone has already agreed it is ludicrous.
You're making a big assumption about what
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Of course you can. You just need to include in the contract a clause giving you the right to change it all. Persuading the other party to sign such a thing would be very difficult in the material world, but on the Internet people seem to be agreeing to just about anything to get a free ring-tone.
On the other hand, there is a small library-worth of laws regulating, what can not
Re:Kind of sad (Score:5, Informative)
The reason they still get written in is because most people haven't the clue or desire to assert that aspect of contract law.
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On the contrary, you'll find that service contracts like cell providers say they can change the contract terms, but you then have the ability to cancel the service with no penalty if you don't agree to the new terms.
Open Directory License (Score:3, Interesting)
Good! (Score:4, Informative)
Talk America....their telemarketers used to always bother me everyday (before the Do Not Call List) and they always gave me the creeps.
The appeals court also said the district court was wrong to grant Talk America's request for arbitration.
Arbitration panels are usually loaded with industry folks and you, the consumer, will rarely get a fair shake.
When I took a class on buying businesses, one of the ways to finance the deal was to sell off the customer list of the company you're acquiring - regardless of any privacy statement they may have stated to their customers. It's not just eCommerce sites. It's also the Mom and Pop bakery.
I'm all for capitalism and business and everything, but, sometimes, some of the things that are done makes my stomach churn. It does give me some empathy and understanding for the anti-corp folks here, though.
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IIUC, this ruling doesn't apply to those contracts. This says a consumer has no general obligation to keep checking the contract. It doesn't say a consumer can't agree to assume such an obligation by, say, signing a contract.
See analysis at http://pubcit.typepad.com/clpblog/2007/07/courts-s ays-aol.html [typepad.com]
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It always pisses me off that some web services say in their very long agreement that they have the right to change the terms at any time. I refuse to do business with those people.
SourceForge reserves the right, at SourceForge's sole discretion, to change, modify, add or remove portions of these Terms periodically. Such modifications shall be effective immediately upon posting of the modified agreement to the website unless provided otherwise (e.g., when implementing major, substantive changes, SourceForge intends to provide users with up to fourteen days of advance notice). Your continued use of the SourceForge Sites following the posting of changes to these Terms will mean that yo
Changing on-line agreements in not uncommon (Score:2)
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The fact that the service is called 'unlimited' doesn't mean all aspects of the service need to be unlimited.
Suppose you had subscribed to an unlimited service contract - allowing you an unlimited number of support incidents per year for your server. And then in the fine print you read that the service contract only applies to 1 server. Would you jump up and down because they won't provide you the 'un
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"UNLIMITED" with respect to internet access generally refers to your connect time, not your bandwidth usage.
The fact that the service is called 'unlimited' doesn't mean all aspects of the service need to be unlimited.
Sorry, but this is deceptive practice. Actually, it is a plain lie. If the ad is written in a way that all normal people will think that sounds as unlimited bandwidth, then doing otherwise would be lying.
Suppose you had subscribed to an unlimited service contract - allowing you an unlimited number of support incidents per year for your server. And . then in the fine print you read that the service contract only applies to 1 server. Would you jump up and down because they won't provide you the 'unlimited support incidents' for any machine you want -- after all clearly that's a limit!
The wording of the ads and contracts matter. If they disagree, the advertisement is lying.
Do you get mad when you order the 'unlimited buffet' for 9.95 and they won't let you make 20 trips bringing back a plate for everyone in your extended family? That they won't let you bring a cooler and fill it up with marshmallow salad? That you can't come back tomorrow and keep eating?
The wording of the ads and contracts matter. If they disagree, the advertisement is lying.
Of course not!
Of course?! The wording of the ads and contracts does matter. If they disagree, the advertisement is lying.
Moreover, in the case of bandwidth. The reason they don't specify a cap is because if they did it would be much lower than it would need to be. Suppose based on their revenue/expenses/etc they can *afford* to give *everyone* 1GB of bandwidth per month. Now the reality that most people don't come anywhere near needing that so they leave it as a soft cap -- if some people use 5 or 6GB per month, its really no big deal.
Bull-fucking-shi
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Point me to another provider that would give you more for less? Yeah, that's right. You can't.
Get used to the fact that most telcom businesses survive by overselling their capacity. Don't like it? Suck it up. Unless you're dragging the fiber yourself, or pulling more spectrum out of the air, that's the way things are when you have limited resources available.
Look, overselling is not a legal term, nor does it consern me at all. For all it matters, they could be stealing the wires, not paying license fees, whatever. I simply don't care - and I don't have to, and the law is there to protect me. All I want is to get for what I am promised in the ads. If the ads must be changed to accomplish that, they are legally and morally obliged to do it.
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Traffic congestion is a localized issue. What people do "on average" doesn't amount to squat when it comes to committing to a hard service level agreement. If 20 people in a single neighborhood all start using 100GB per month it doesn
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1) The advertisement never says "unlimited time", just "unlimited".
2) Other companies with several price plans have "5GB (basic), 10GB (premium), unlimited (super premium)"
3) Only in the advertising does it say "unlimited", not in the contract
4) It doesn't say in the Fair Usage Policy "limits may be applied at our discretion over 20GB of usage in any billing month" - just that they can do whatever they like
Well, that's the situation now.
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When most people interpret something correctly additional information isn't needed.
2) Other companies with several price plans have "5GB (basic), 10GB (premium), unlimited (super premium)"
Personally I've only seen that in hosting plans, and cellular plans, not basic broadband offerings. And in those cases there is usually an asterisk and some fine print about it being limited by their network infrastructure, where unlimited means there is no
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2) I've seen it in home broadband offerings. (e.g. Sky). They have an asterisk saying "fair usage policy applies".
3) In the contract, it says they can take any measures against somebody overusing their connection (with no way to find out what "overusing" is until it happens to you), typically incl
Furthermore... (Score:4, Insightful)
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Exactly. I've thought this should be unlawful for ages. If they just change the terms and attempt to enforce the new one, doesn't that count as fraud (if they are gaining something from the new contract anyway) given that the terms saying that they may change it at any time are invalid.
Also, maybe asking someone to agree to a contract you know to be invalid (e.g.: because of lack of consideration) should be a crime, as such things are often used divisively.
As you say there are also issues with a lack o
If second contract is reasonable, no problem ... (Score:2)
No, replacing one reasonable adhesion contract with a second reasonable adhesion contract should remain legal. The law prohibits unconscionable contracts and protects the consumer in this regard in both the first and the second contract.
Re:If second contract is reasonable, no problem .. (Score:2)
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That wouldn't work. Many contracts have an integration clause that means everything said or written in the past is now irrelevant and that the current contract represents a complete and final expression of the agreement. Also, there is the
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How many people read the original contract in its entirety? Of those who do, how many understand what the contract says?
What possible objection could anybody have to be told "by the way, this is what we changed"?
Hypot
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Such a statement is meaningless and encourages bad habits. Unsophisticated consumers will falsely rely on such statements while the contract says that such statements are irrelevant. How does an irrelevant unenforcible statement help?
The legal system is far and away too complex for the majority of the country. Lawyers have an average IQ around 130. The general population has an average IQ of 100. Lawyers write
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If there's one thing I learned from my contracts professor, it is that "unconscionable" is just a word, and waving it around doesn't prove anything. It doesn't have any intrinsic meaning until you answer this question: Why is it unconscionable? Note that I'm not disagreeing, just requesting an explanation.
Similarly, saying something is unconstitional is not a persuasive argument unless you explain why.
Standard Form Site Contract(s) (Score:2)
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I'm sure the lawyers would strike—or more likely find a reason by why such an idea would be unlawful. Imagine the lost revenue?
Seriously someone should do this, a bit like the Creative Commons licenses (maybe they should do it). A problem I see is that most of the terms in these things are really unnecessary (even from the providers point of view) or adequately covered (or overridden) by legislation and full of waffling redundancy, so to do this you'd actually have to find out what they terms they
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I wasn't serious about lawyers striking. Anyway, In most jurisdictions they are effectively legally barred from doing so.
I think you missed something though. Judges are lawyers and they also so get paid by the hour so all that legal manoeuvring is in their interests too. In fact many courts encourage plaintiffs to venue shop over to them, and many states lobby (and change their laws to encourage) multinational companies to sue people in their jurisdiction to help make money for the treasury from court f
Uninteresting (Score:3, Interesting)
The conditions cited in this article are, however, particularly asinine. What if a car dealership could change the terms of the sale any time they wanted after the sale, without your approval? How well do you think that would hold up?
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You are mistaken. Terms that require arbitration may be perfectly binding. Terms that are considered unconscionable and void would be those that are one sided. I believe one of the classic rulings on this matter was a situation where a company required arbitration but then retained the right to appeal. The right to appeal was what the judge considered one sided, not requiring arbitration in the first place.
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Correct me if I'm wrong, but I've been under the impression that having a contract with invalid conditions does not invalidate the entire contract.
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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.
Update To My Credit Card Policies (Score:4, Funny)
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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.
Beware of Flying Pigs (Score:2)
Ah, the Ninth Circuit.... (Score:2)
that explains a lot.
Still, the SCOTUS will fix^h^h^h overturn this soon.
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Remember, the GPL is not something that the author imposes upon the user. It is a contract that the distributor freely enters with the author.
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Re:Does this kill GPLv2 "or later"? (Score:4, Insightful)
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B modifies that code, and gets to choose which GPL to release under. He chooses the GPLv3. This has an "or later" clause, but there is never a "or earlier" clause.
C needs the changes that B made. He MUST use the GPLv3 (or later) to use B's changes. Except this new GPLv3 restricts C's usage so that he cannot use B's changes for his product.
Not only that, but A cannot re-incorporate B's changes into the original product, since that was
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No. The "or any latter" language is an extra permission so even if the FSF released some evil draconian version of teh GPL that only means that users of software under "GPLv2 or latter" now CAN use the draconian license. They still have the option to use the good old "GPLv2". In other words, the very worst thing the FSF can do is to release a GPL version that is not copyleft,
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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-enforcea
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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
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Click/shrink wrap terms usually binding (Score:3, Informative)