Slashdot Mirror
Web Contracts Can't Be Changed Without Notice
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)."
So now sites will just say "good for the next three months", and then have you look at a new agreement when you login three months from now?
What about the mega-corporation's rights to mercilessly screw their customers? This ruling ain't fair, you know.
Isn't this only applicable in the 9th Circus^Hit's jurisdiction?
Your hair look like poop, Bob! - Wanker.
Well, it's not a big issue for sites that require a login. All they have to do is flash up the new terms for the users next time they log-in. World of Warcraft does this during patching if the licence has changed. WoW isn't a web site but the principle is the same.
Any site that would change its terms without some kind of notice to users has been operating in cowboy land anyway.
-- Using the preview button since 2005
It's kind of sad that something like this has to be decided in court, and isn't actually just common sense. I can't have someone sign a paper contract, and then go and change everything around, and them make them bound to said contract. 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.
Anthropic principle: We see the universe the way it is because if it were different we would not be here to see it.
...so it doesn't really matter. Big companies like Google etc. only have ToS because their lawyers said they must have a ToS (well they would, wouldn't they), and little companies only have ToS to make themselves look like big companies.
Would this affect clause 4 of the ODP (DMoz) License (and similar copyright licenses)? Maybe that isn't considered a contract or only having to make "reasonable efforts" to check for changes is acceptable.
Joe Llywelyn Griffith Blakesley
[This post is in the public domain (copyright-free) unless otherwise stated]
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.
I prefer Flambe as apposed flamebait.
Almost all ISPs have posted Acceptable Use Policies that are subject to change at any time -- and they are considered to be part of the contract. I think that most ISPs are finished with fine tuning their AUPs, but for a while they had to be changed fairly frequently to close holes that spammers were exploiting to prevent their removal from the net.
Does this kill the "or later" part of GPLv2 or later programs? If one side can't just choose a different license without informing the other, would this apply in reverse?
This could be a very large blow to the GPLv3 if every time anyone wants to use a GPLv2 or later program they have to inform the original authors.
Is this still the case if the contractor states in the contract agreement that they reserve the rights to do exactly this?
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?
If sharing a song makes you a pirate, what do I have to share to be a ninja?
If the g'vt kept the data on you that google does you'd better believe you'd be calling it "doing evil"
Could this actually be bad news, in that it might be seen as strengthening/legitimizing clickwrap licenses as actual contracts?
Much Madness is divinest Sense --
To a discerning Eye --
Much Sense -- the starkest Madness
Any contract has essential elements. If there is no 'meeting of the minds'
which translates to a full understanding of the terms both sides have to
abide by , then there can be no contract. If , say I sign an agreement, and
the contractor wants to change the terms at a later date, the contract is voidable.
If the agreement is for a definate time, it is enforceable. BUT there has to be a
mutual meeting of the minds to make a contract or continue a contract.
Will this apply to cell phone companies and their secret charges, too?
I wish there were just a standard form contract, (or a handful of standard form contracts,) so that each website didn't have a unique contract.
Let's hope for a ruling against email boilerplate bullshit next!
--
This message is confidential and intended solely for the recipient.
If you have recieved this message in error, you must destroy your
computer at once; then we're going to sue your pants off. Kneel
before your corporate overlords you pathetic unintended recipient!
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?
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.
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
say an online site asked you to agree to their terms and conditions before you can proceed, but when you click on the link to view said terms, you get errors, and never can view the terms, but if you blindly agree, the system allows you to proceed...what does the end user have to fall back on in cases like this....
The 9th Court's own tool for retriving court decisions includes the same clause they say can't be used:
r m.pl
If these Policies and Procedures change in a significant way, information regarding the changes will be posted on the PACER Service Center web site (pacer.psc.uscourts.gov). It is the acocunt holder's responsibility to check these Policies and Procedures regularly for changes.
https://pacer.psc.uscourts.gov/psco/cgi-bin/regfo
The "or later" part is an optional part of the recommended text to include the gpl license.
If it isn't included by the author, you don't have that permission.
(So notifying the author wouldn't help)
If the part is there, he author has already signed away his rights regarding the license change to the FSF. He is trusting the FSF.
However, IANAL, if anything the FSF did to the license was not in the spirit of the old license, the new GPL would indeed be deemed unfair towards the author, but that wouldn't be a black/white decision but rather a grey area of consideration.
Hey don't blame me, IANAB
The GPL is not a contract, it's a copyright license and is unaffected by contract law.
Apart from this relatively minor point, you're absolutely correct.
Ain't it wonderful???
We have standard company terms (on website and documents), we don't discourage a court to decide and being reasonable we like to set out a procedure that can avoid court action.
We might use weasel words, but court is expensive.
Also, advocates of the BSD license should note that this permission is implicit in the BSD license as it allows relicensing under ANY license, which includes any version of the GPL. So weather you trust the FSF or not, the fact that they may change their licensing policy is certainly no reason to pick BSD over "GPL + Any latter version".
BSD allows relicensing under pretty much any other license so long as it is also licensed under BSD. You are not allowed to remove the copyright from the files.
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 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. 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.
Why "No"? Where is the contradiction to what what I've been saying?
Saying "or under later versions" means I trust the FSF that later GPL versions will still follow the idea of copyleft and will not deviate from it for example by releasing it under a license with no provisions or by a draconian license(you could consider the GPL3 to be one such if you wanted) that is actually used by newer projects and new contributions.
Hey don't blame me, IANAB
Wow! The Ninth Circuit finally got something right! And right there in technology's backyard, too!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
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.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
The point is, is that these companies are not being fair about the renegotiations. There are actually no negotiations going on at all. They just change the contract, tell you if you don't like it, you can leave ...
:-) To be unreasonable, or more accurately legally unconscionable, oppression or surprise is usually involved. Clickwrap and shrinkwrap are often upheld in court as long as they were not defectively implemented, for example when a download link appears at the top of a page and a license at the bottom, currently offscreen unless you scroll down.
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.
Actually clickwrap contracts have often been ruled valid. See http://slashdot.org/comments.pl?sid=257287&cid=200 34401 to avoid a redundant thread.
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//
It should be illegal to impose unilateral changes to a contract without clearly highlighting and specifying the specific changes.
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.
If I remember correctly (and my memory may be failing here), but MS has used online license agreements for quite awhile with their OEM system builder program for Windows sales, which has enabled them to unilaterally redefine terms such as "oem hardware requirements" from something as small as a stick of RAM to requiring an entire computer, as well as requiring the software be install on the system at time of distribution.
While I understand, partially, this particular move was made mainly to combat sale of pirated copies and the like, it does raise the question of how far they could push it.
Oh, Adobe angered the MS deities today? Maybe MS is trying to make headway with it's PDF replacement. Fine, suddenly the License changes to say windows cannot be included on a computer system that includes Acrobat reader.
Granted, a change like this would probably never hold up, it was just an outlandish example. But it does make one wonder just where the line is.
Hopefully this case will set a better precedent for the future.
"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. :-) To be unreasonable, or more accurately legally unconscionable, oppression or surprise is usually involved."
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."
Is this "surprise"?
It isn't that contracts can't be changed, but that contracts shouldn't be changed without clearly highlighting and specifying the specific changes. Make all the changes you like, but make sure that all parties have at least a fighting chance to know what is different.
If the g'vt kept the data on you that google does you'd better believe you'd be calling it "doing evil"
...Which will probably sooner or later avalanche into another big lawsuit.
Say, I signed up with Google (or any other email provider, using Google as a reference for rest of reply) under an existing TOS contract. Everyone is fine and happy, Google serves me ads, I use my mail.
Then, one day, Google changes the contract. By implications of the former decision, Google would be required to get my consent for the new contract before continuing service.
The question is, what if I say NO?
Does that give Google the right to immediately terminate my mail service, sending all my messages to a black hole?
Or would Google be required to provide some accomodation for me to recover my mail before terminating the account?
The point of law would likely depend on whether Google "owns" my mail or not. This is likely not be an issue in case of MMORPGs (they explicitly say in the TOS that they only provide the temporal service, and they "own" your character, items, and whatever, so they can terminate it for any reason they want). But with Google holding my actual emails, it probably will not be successful in arguing that it "owns" my emails, and only provides the service; likely, by a point of law Google would be the storage provider, maybe bailer, but not "owner", and thus cannot confiscate my emails without any option of recovering them.
Any lawyers out there that have a clue on how these things work?
What full damage? This sounds like a very reasonable opinion. All it says is that if one party decides to change the terms of a contract, it has to tell the other party (and I would assume without RTFO -- if the other party doesn't like the new terms, the other party can say no). Without this, you could "sign" a contract in July that says "we will keep your info private" and then in October, without notice to you, it could be changed to "you owe us one million dollars". I guess you think that would be fair? Give me your address, I have a harmless little contract I want to send you.
What changed under Obama? Nothing Good
This reminds me of the beginning of The Hitchhikers Guide to the Galaxy where Arthur Dent's house is about to be demolished. The notice of demolition was posted in a basement but he was "at fault" for failing to check that basement office. Shortly thereafter the Vogon fleet arrives to demolish Earth and blames humanity for failing to check the local office at Alpha Centauri. The logic/lack thereof is similar.
Sure. It's a surprise. But not all surprises are exempted. Only those that would be unconcionable ones. :)
And can someone tell me how updating the TOS page on a website isn't considered 'letting them know' if it was enough to let them know in the first place what the terms where?
If i had one dollar for every brain you dont have, i would have $1.
Mod parent -1 Wrong...
The GPL is not a contract at all. It is a one-sided, unilateral grant of rights from the copyright holder to the recipient of the software (also known as a license).
It gives *permission* to recipients to do things they would otherwise be forbidden to do, as long as they agree to its terms. Unlike most proprietary software EULAs, the GPL is not a contract because it does not restrict what users OR distributors can do, in any way. Only copyright law restricts what you can do with the software (without first securing additional permissions, specifically a license such as the GPL).
Finally some signs of sanity from our legal system.
expandfairuse.org
It seems here that the issue is that the plaintiff was paying for a service and had the terms of a contract between him and a phone company changed without his notice. In Google's case, users of Google's services are not entering into a contract as much as they are accepting a license. Particularly, users of the search tool, who don't need to log in to use the tool, are essentially re-accepting the terms each and every time they use the service. Sure Google could e-mail all of its customers with accounts if they decided to change the TOS for those services, but Google can't tell the difference between a returning user from an older TOS and a new user accepting the new TOS with regard to the search tool. It would be interesting to see if the court ruled that Google and similar companies had to put a revision date next to their TOS link, but I don't think that this decision goes quite that far.
IANAL and all that jazz.
The Supreme Court of the United States is now just as bought and paid for as the Congress has been.
They'll overturn this faster than they can lick the assholes of their Christian/Elitist/Wealthy likemindeds.
It isn't that contracts can't be changed, but that contracts shouldn't be changed without clearly highlighting and specifying the specific changes. Make all the changes you like, but make sure that all parties have at least a fighting chance to know what is different.
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 general principle that people should read the new contract in its entirety, highlights and other shortcuts should not be employed to avoid such a reading. I understand your sentiment but like many well meaning politicians I think your proposed solution will have many unintended negative consequences.
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"?
Hypothesize one.
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 and interpret laws for other lawyers. What possible chance does your average person off the street have to understand even a significant portion?
If the g'vt kept the data on you that google does you'd better believe you'd be calling it "doing evil"
What possible objection could anybody have to be told "by the way, this is what we changed"?
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 and interpret laws for other lawyers. What possible chance does your average person off the street have to understand even a significant portion?
You do realize that when judges are deciding whether to enforce a contract or not they take such things into consideration? Different "rules" apply when the contract involves major corp vs major corp or merchant or indivual consumer; the power imbalance you describe is considered. Obfuscating language does get contracts invalidated.
how are any of these contracts or eulas actually binding when you are shown a copy but are not provided with a physical copy of the terms- applications should generate a pdf file for review and you should have a "save" option required on web contracts- honestly if someone said- hey application X that you have installed has this in the contract- how can I confirm this? Once you have clicked OK it goes away and the only way to see it again is to re-install. I can say for certain that if I bought a car or house or applied for a loan or even got a cellphone that if the seller said- sign this contract and then took it away and refused a copy they would be sued in a big way (especially if they said- you can see it again when you buy another one), you have to provide a physical copy of the contract to both parties for it to be legal or it is not binding.
From the BBC iPlayer T&C's:
"The BBC may change these terms at any time by posting changes online. Please review these terms regularly to ensure you are aware of any changes made by the BBC. Your continued use of BBC iPlayer after changes are posted means you agree to be legally bound by these terms as updated and/or amended."
All this will do is put in some additional language requiring you to enter an email address you will check on a regular basis where they can mail contract changes. They inform you of the changes as per their legal obligations and if you don't check the email then it's contractually your problem. Makes changes a tad more publically visable, but otherwise basically the status quo.
Clickwrap and shrinkwrap are often upheld in court
Examples please of cases upheld in court (where the terms were not already covered by law)?
I think that users should start having their own "user" contracts - just stick it up on the webpage, and tell the company it's up to them to check it, and the terms can change at any time.
If it's a contract, it should be also fine for me to negotiate a different contract. So I tell my computer what terms I'd actually like - if their program accepts that, tough luck to them.
The point being - if these were really upheld as being contracts, and the law was applied to users just as much as companies, users could easily take advantage of this.
that explains a lot.
Still, the SCOTUS will fix^h^h^h overturn this soon.
Welcome to the Panopticon. Used to be a prison, now it's your home.
Going forward, all a business would need to do is include a phrase like 'please check our website for changes in the terms of service' with the invoice, and that would cover the company. That would be formal written notice. I would think that most smart companies would have been able to break down the simple part of 'they can't be held to rules they don't know about, and certainly won't obey ones they don't know about'.
:)
Nothing in here is outside the bounds of contract 101 (maybe even 099 really).