> <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
The logic makes a certain amount of sense, but the logic falls flat when the service is an actual product the customer paid for and the company decides to change the terms of service after the fact. The logic also falls flat, in my opinion, when the company agreed to provide the service for a fixed term or the service can (reasonably) regarded as essential.
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?
Did we ever get a black bar for it?
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.
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.
If only more people actually understood that.
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.
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.
Thought about running both in parallel but that seems like a waste. Think I just need a migration day eventually
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 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
Of course, then you're spending $10 to save $10....
I have the whole *arr stack setup with Plex running in the US just fine, but that's for sure not for everyone and was a few headaches to get up and running
1. If the complaint is about non-consensual tracking, using a gadget that's specifically designed and advertised for tracking, and that you have to specifically go out and buy and put on your body is a terrible example.
2. Tile trackers have more or less been replaced with airtags and whatever google's equivalent is, which is designed in such a way that prevents companies from knowing its actual location.
Sure it’s inconvenient from time to time, but the positives far outweigh the negatives.
Very soon I'll do another round terminating most subscriptions, as Goog showed me what happens otherwise - it still owes me these 500$ 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 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.
I like the phrasing of this because it tells us nothing of whether your family liked the change (or felt better off with it) or not. You can adapt to a lot.
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.
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.
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.
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.
https://ppc.land/german-businesses-systematically-delete-cri...
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).
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.
[1]: https://www.gutenberg.org/files/36664/36664-h/36664-h.htm#pa...
And the way the resteraunt this right is by covering their walls with TOS text like an Egyptian tomb.
I'd be surprised if all those stars align anytime soon.
edit: Apparently not!
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
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.
Because a severe power imbalance allows for abuse, and governments should prohibit such abuse.
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.
> 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.
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.
"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.
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.
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.
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.
https://newsroom.spotify.com/2025-09-24/spotify-terms-creato...
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 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 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?
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.
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.
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.
Obviously never true anywhere on Earth.
"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)
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.
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.
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.
It is a totally reasonable discussion of what assent entails, is clear that assent only exists when people actually read the notice, and placed the burden on the companies, etc.
One can disagree with the law at issue here, but the court was very carefully following it, and had a meaningful and thoughtful discussion of the issues involved.
Which you dismiss as just "trying to clear their dockets" because apparently you don't like the law as it is (which is cool, but not the courts job)
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.
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 anymoreObviously, 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.
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.
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.
Cases cited from '98 and '00: https://en.wikipedia.org/wiki/Clickwrap
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.)
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
This should move the exact opposite direction. I am compelled to sign, acknowledge, approve or otherwise indicate that I've read and will comply with so many things that it is 100% meaningless. Furthermore, I assume that whatever legal jargon i'm being presented with benefits the other party and distinctly puts me at risk. In day to day life, just sign "mickey mouse" at every signature box, form or document you are asked to sign. It will make no difference at all.
https://www.independent.co.uk/news/world/europe/read-the-sma...
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?
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".
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.
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.
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.
<div style="width:1px; height:1px; overflow:hidden; font-size:1px; line-height:1px;">
New Terms and Conditions
</div>
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.
And target some user with some money to lose and sue them for it.
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.
I have never read a ToS. I wonder how many of the services I use I would continue using if I did read them (probably most if not all).
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.
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.
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.
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.
Basically the case met two of three factors and so they said yeah probably but its not establishing precedent because each case is special.
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.
> 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 looks like a filing of appeal.
Call me when the only court that matters makes a move.
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.
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.
Never sign or use anything.
Seriously, WTF? We know the leverage we all have but we refuse to use it because "convenience".
> 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?
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.
For all the hate EU gets, it has done more for consumer protection that any other government entity.
Material changes require mutual assent. This case was about whether mutual assent existed. The court said "yes".
So no contracts were changed by one side without the other one signing off - the court found the other side signed off.
email is notorious for arbitrarily not being delivered due to "spam/scam" filters misclassifying things
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.