Court Rejects Online Terms Of Service That Reserve The Right To Change At Any Time
from the wow dept
If you look at many online terms of service, they reserve the right to change the terms at any time. Some force you to re-agree to the terms -- but others don't. In the past, courts have ruled that if someone didn't agree to the changed terms, the new terms could be found to be unenforceable, but a recent decision has gone much further, effectively saying that the entire terms of service are void if they claim they can be changed at any time. Sent in by Blake, the ruling said that Blockbuster's online terms of service were "illusory" and unenforceable because it included a clause saying it could change the terms at any time. So, even though the term it was trying to enforce was in the terms that the person agreed to, the court found the entire terms unenforceable. This is quite a ruling that could have a pretty major impact on any online service that has terms that insist they can change at any time. While it's just a district court ruling and may be reversed on appeal, it's something anyone running an online service should pay attention to.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Filed Under: changed terms, illusory, terms of service, unenforceable
Companies: blockbuster
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Thank you, thank you, thank you... even though an appellate court will certainly overturn it.
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Lori Drew case??
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patents
candy stripers in hospitals; free labor for newspaper reporters student posts, ottawa '09)
legal aid exploded from 30m to 250m since in BC. It's a real law abiding place right now, too. (NOT)
the patent bubble turf wars (notary publics, etc) will make the birth of the party quebec-quois (12 theiving conservative bagmen dead by car-bomb, appartently) look tame.
the broasdcast treaty (anything I can find can be patented as mine), takedown by request (the web);
realisticly, and putting a dandyloin in a labeled bottle can cost you your house right now.
the turf wars are gonna be LOTS of fun.
and free.
pat donovan may:09
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As it should be
I understand that most people never even read the TOS, but right is right.
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Re: As it should be
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Re: Lori Drew case??
Good job, Eric. Now run any hide before the "Kill Lori Drew" angry mob hunts you down and stones you.
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Re: Re: Lori Drew case??
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Re: Lori Drew case??
I am sure the feds will try to pull all the strings they can to make sure their precious grandstanding trial isn't ruined in any way for Lori Drew though.
We have seen how much they care about what the actual law says.
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I wonder...
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Abuse of the legal system
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Re: I wonder...
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Tune to MSNBC
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I feel compeled to say it: Lori Drew's actions while repugnant, and possibly (IMHO) rising to the level of harrassment (it shouldn't matter weather it is done on-line or off), were most likely not illegal. She should appeal her conviction. As for this ruling, GREAT news. A common sense decision? You mean terms of service that exist to provide a framework, shouldn't be able to be bent around the company's wishes? What an AMAZING concept.
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Great idea here
Credit Card law does not count here because there only allowed to change terms with in stated limits (provided by the state) and your allowed to reject those changes (by paying off said credit card).
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Re: Lori Drew case??
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The libertarian view on fine print
On the issue of the enforceability of "fine print" and related matters (that may have a bearing on the issue decided here), see my comments here:
Also here:
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So now I can't ...
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Re:
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re:
The fact that the terms you agree to are not necessarily the ones that end up later, is indeed something that will eventually reach supreme court.
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Re: Re: As it should be
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Re: Re: Lori Drew case??
IF (big if here) the case is still eligible for appeal, then a current case law decision might be brought to bear. It's not the same as though it were new legislation, which can seldom be applied retroactively.
Also, it fully depends upon whether the period for appeal has lapsed. If so, then ex post facto applies. If not, the ball may still be in play.
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Re: The libertarian view on fine print
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If one party to an agreement can change any aspect of the agreement at any time without prior notification or acceptance by the second party, there isn't really much of an agreement. It's really just the more powerful of the two parties telling the other party the way things are going to be...
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Re: patents
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Darth ISP
(breathe, breathe) I have altered the deal. Pray I do not alter it further. (breathe, breathe)
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Re: Darth ISP
This is made slightly more hilarious by my recent watchthrough of Chad Vader.
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Re: So now I can't ...
FAH You SOOOOOES!!!!
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while in the commision of a felony concept
To me the "make any changes" and arbitration clauses are quite unconscionable and illustrate plainly the intent to obstruct reasonable consideration.
It pretty discouraging that anyone needs to point this out, worst it had to be done so in the courts.
An agreement where one party can change the terms without the consent of the other, is NOT an AGREEMENT, scam perhaps maybe even a flim-flam.
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Re: Great idea here
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LOVE IT
I find it funny that as a Cit, we cant change a contract A NEEDED. but the CC can and the bank can and the LANDLORD CAN..
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TOS are not valid contracts in the first place
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Re: Re: Lori Drew case??
VRP
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Re: re:
But only on a Petition for Writ of Certiorari and not beyond. Response will always be "Petition Denied". Remember who owns and operates the Supreme Ct, and remember how that court is politically, not judicially, driven. Justice isn't ever even considered by members of the court. There's no place for such a concept in a court of law.
VRP
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Terms Change at Any Time - On Line or Off
If contract has no meaning and doesn't fulfill legal qualifications to be a contract, it creates the appearance of a contract but denies its own purpose for existence - to be bound.
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Its a Start
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Re: Re: I wonder...
As for cell phone contracts, I would not consider them valid. One aspect of a contract is the concept of damages. If you terminate early, I don't see what the real damage is to the phone company, so I don't see how they could collect an early termination fee.
I suspect that they would claim that the "damage" is that they gave you a phone at a significant discount and that they needed to recoup that "damage" if you quit their service. But if they did that, the early termination fee would then be on a sliding scale. Do the cell phone companies do that? (Sprint many years ago had an early termination fee even if you kept your old phone. Clearly no damage in that situation.) I would take the position that the phone was simply an enrollment gift, a loss-leader in a sense. So if the phone company made a bad business decision by giving you a gift, then they are NOT entitled to any early termination fee.
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Too much power to corps, too little to consumers
Any contract that's subject to change without notice isn't a contract. Anytime you see those terms, especially in a privacy notice, I read them as no contract exists.
Other courts need to follow this. Just because many companies like to do this doesn't make it right.
The other thing that needs to happen is that consumers should not be able to waive any of their rights, no matter what the contract says. Companies can waive whatever rights they want. Consumers aren't in a position to negotiate especially when companies present 'contracts' in a take it or leave it manner.
Between these two changes (no waiving of consumer rights, no unilateral contract changes) a majority of illicit business practices would be curtailed.
Of course should that happen, expect companies to crawl out of the wood work complaining about how this would be unfair and infringe upon their rights to squeeze money out of the unsuspecting public, er. make a profit.
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Meeting of the Mindless
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