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Netflix Terms of Service Invalidates Your Right To Sue
New submitter ebombme writes "Netflix has decided to go the route of AT&T and others by trying to take away the rights of their users to form class action lawsuits against them. A copy of the new terms of use states 'These Terms of Use provide that all disputes between you and Netflix will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Arbitration Agreement below for the details regarding your agreement to arbitrate any disputes with Netflix.'"
Next question.
entirely non starter. Not enforceable either.
So why is this news?
Kafka?
I do not believe in karma. "Funny"=-6. Do good and forbid evil. Yours, Oft-Offtopic Flamebaiting Troll.
The values i a Netflix subscription is just too small for a normal person to engage in a lawsuit. Even a class action suit would be off little value (look at history - only lawyers get any real money out of it). The real power for the subscribers is to stop the subscription. And you do not need to sue or go to arbitration over that.
And of course, if they give bad service it is far more efficient to slashdot them over it than to sue anyway.
If netflix decides one day to suddenly to perform some kind of shady spying on it's customers, I don't see how this "forced EULA" could have a snowball's chance in hell in court. SUE ANYWAY
I'd like to test this sometime and see if I can take someone's life, liberty, or pursuit of happiness from them.
I'm willing to bet that every company that has an EULA or terms you have to accept will start doing this. The question is whether it will hold up as legal. I would say that since customers have no choice but to click agree or not use the service at all that there will be questions about the legality and actual power of an EULA. I know there have been a few court cases in the past, but these EULA forcing users to give up their rights won't hold up as being constitutional.
I can't sell someone a piece of shiat car and make them sign a contract that they wont sue. What if the brakes go out on the car the next day and they kill a kid on the sidewalk? They signed a contract but it's not going to hold up in court. You can't just take away peoples rights because you feel like it.
Where does it end? The police forcing everyone to give fingerprint and DNA samples if they use public transportation. Using the EULA logic all they need to do is put a sign on the door saying if you use this bus you consent to fingerprinting and giving a DNA sample to law enforcement. Just because someone says something is the rule does not make it the rule.
I'll be glad when we get tired of these greedy companies bullshiat and we shut them down.
In the US it's common to take someones life and/or liberty because of their pursuit of happiness.
Give me Classic Slashdot or give me death!
There is more motivation than getting paid back in a lawsuit; there is also the goal of causing a company to change its behavior. And the threat of a lawsuit tends to mitigate their bad behavior preemptively; it's obviously not guaranteed to work, but it probably does help.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
There is another matter here.
The inclusion of such a clause would render the contract void in a number of jurisdictional, thereby voiding the whole EULA. Just another case of careful work by a contract lawyer being completely undone by their employer. See shrink-wrap EULA's contained inside of an opaque product package that you become bound to only after you open it, these are automatically void.
The company should be fined and their head of legal sent off to federal "pound you in the ass" prison for even attempting to put this in an EULA. How can an EULA supersede law?
you're a joke to the world.
Just another company planning to screw the customer over.
It's utterly disgusting that they would even put something like that in it.
I put my books on Amazon, Smashwords, Demonoid, ISOHunt and Pirate Bay. Search for 'Michael Cargill'
Well, fine print doormat. By entering these premises you give up all legal standing and agree to the following: list details. To what degree these are enforceable, I don't know. However, there are two styles of precedent for using it at your home.
1) EULAs. This isn't any different than a EULA. Actually, if you have the doormat outside in a way it is even more open/free than an EULA. To be completely like the EULA you need to have it in a closed off foyer inside your house. Just change "by entering" to "proceed beyond this single room".
2) Things like this are already being used by media organizations. One cooking show... I forget who, Rachel Ray? American Eats? I think American Eats, filmed at a local location. They put up a sign outside the main entrance stating "by entering this building you agree to be filmed, to have your likeness used, etc." contractual lawyerese.
Jeff Dunham did the same thing when I went to see his one show. Paid for the ticket, drove the hour and a half with the person treating me, sat down for about a half-hour, and then this barely readable (due to being in the nose bleed section) EULA like agreement begins scrolling down on the jumbo-tron stating I agree to a whole bunch of stuff just by sitting there. I was tempted to see if I could get a refund just to see what would happen, but I was there with others, and maybe they "read" the agreement before they were allowed purchasing the tickets.
by Anonymous Coward: I, for one, welcome the shift from car analogies to pizza analogies. um.. overlords?
whether or not their terms are upholdable in the court of law is another question, u cant just write, if u check this box, u sign over ur life savings and we get ur kidneys and u cant sue us if u find this small print out. a court of law can throw all that out and let u sue the crap out of them.
Sue them for changing the terms.
When the foot seeks the place of the head, the line is crossed. Know your place. Keep your place. Be a shoe.
then I as a customer have the right not to choose their service, simple as that. I really don't see how this can be legal, but I am unable (and unwilling) to be a person who brings this to court to test the waters.
--- b2b.mallaidh.org | www.mallaidh.org | www.kidsalive.org/article/kahlil-pfaff/
Nope. Not enforceable.
Verizon got spanked for such terms in its contracts.
You cannot sign away your rights.
--
BMO
When it comes to arbitration, yes you can.
A perfect example: Stock Borkers in the US. You have to sign an arbitration agreement and the arbitration panels are loaded with industry insiders. If you want to buy stocks, mutual funds, or any other security, you have to sign it or they tell you to hit the road.
And you have no recourse after they make their decision.
Just one more way Wall Street fucks the little guy.
Things like this are not enforceable here.
Most contracts can be reduced to four single-syllable words that a six year old would understand:
"You have no rights."
Lawyers could also reduce all legal correspondence to:
"You are screwed."
Please make these changes. It would save everyone a considerable amount of time and make everyone significantly happier.
Every couple of months, Netflix puts up a notice on the website that I should click to agree to their TOS. At least once, I noticed that eventually the notice started to sound more urgent. But it always disappears in the end. :-)
I wonder if their requesting that one click on "Agree" is an implicit admission that they cannot unilaterally change the TOS on us? Or is it that maybe that back when we signed up for Netflix (about 11 years ago), they forgot to put in a clause allowing them to change the terms unilaterally?
The AT&T case was unique in that the SCOTUS overrode a CA statute that was OVERLY generous to consumers (and completely unfair to businesses) and said the arbitration clause was valid. MA on the other hand will toss out such a clause (as they did in the Dell case) as it simply stripped a consumer's right to the court. So I repeat, the AT&T does NOT validate all arbitration clauses, all it did was invalidate enforcement of a CA statute that was superceded by the Fed Arbitration Action.
"Where is my mind?"
In the UK class action suits are opt-in. All the claimants must be identified. All claimants in the class are liable for costs if the suit fails. In the US class action suits are opt-out. Only those claimants who do not want to be part of the class action have to identify themselves.
There is talk of changing UK class action suits to be opt-out, which could mean a version of the "Federal Arbitration Act" in the UK to prevent class action suits swamping the court systems.
(IANAL)
Such jargon may or may not carry weight depending upon what state is involved and what judge hears the motions. Mostly it is a bluff that will cause an expense for a potential court opponent. Many people quickly learn that even when they are totally in the right it costs money to use the legal system and it may be big money. In essence real civil suits are now only for the wealthy.
Seems like most Netflix viewers might not even really understand what that contract means. I've read there have been some hiccups in actual courts about pushing "I agree" buttons...one judge said something like "Who is going to read and understand 3 pages of legal jargon before doing .... ". Netflix probably worries (rightly) that they have some legal exposure are trying to mitigate any way they can. It's easy and cheap to tack on an I agree button and people are accustomed to clicking them.
In my State, such agreements are unlawful, and a corporation may not separate a customer from their right to sue in any court of competent jurisdiction within the State.
AT&T has already been fined and barred from any attempt to enforce their unlawful contract terms.
So, dear Netflix, goodluckwiththat.
I don't understand how any click-through contract is legal. When you buy a house, you make the offer in writing and anything you scribble in the margins takes precedent over what's typed. Handwriting ON BEHALF OF [COMPANY NAME] above my signature saved my butt more than once.
There's no place to make margin notes in a click-through agreement, no negotiation and no consideration from the vendor. Click-throughs are not an agreement, they're hostage taking. It's not right making them enforceable.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
Is there any reliable source of data that rates company policies against some objective criterion? Something that's not just an unsorted collection of complaints or anecdotes? There's EULAlyzer, which tries to do this by recognizing stock phrases. Anything else?
Incidentally, Netflix won't even let you read their EULA unless you let them plant a cookie. That's tacky,
If I could find something like that, I'd put it in SiteTruth, and have it appear when you mouse over a link or search result. Currently we report the location of the business and, when available, the annual revenue and number of employees, with links to SEC and BBB reports. The goal is to provide consumers with data that allows them to tell how legitimate the company is. Data that doesn't come from the company. (Or from their social spammers. Most favorable crowd-sourced "reviews" are now solicited, if not outright fake.)
You can still sue Netflix, and Netflix would have to petition the court for a dismissal based upon your alleged agreement not to sue, and the judge will decide if the case is dismissed or not.
Having been through this process a number of times, suing companies with these infamous click-through "no right to sue" terms, it takes about 4.3 seconds for a judge to toss that part of the contract and allow a case to move forward, especially if there is a preponderance of evidence that Netflix either broke the law or violated any term of the same contract they are trying to use to toss your case.
Basically, they're just doing this to try to scare you into agreeing to binding arbitration. If you have a disagreement with Netflix, sue them anyway. Start in small claims court where lawyers are not allowed. Seek the maximum relief you can legally justify.
Seems to me the ONLY "NEUTRAL ARBITRATOR" that could exist is the one created by the constitution to be neutral....
Besides, the only people that benefit from Class Action lawsuits are the lawyers and companies who end up sweeping misgivings under the rug after a settlement. The ONLY way consumers have to enforce their rights with companies like netflicks AT&T and others is the ability to walk. Drop them, their partners, their products like a rock and ensure you, your friends and everyone you know never use them again. Hurting their long term bottom line is the only way to institute change in anti-consumer policies.
Given the cost and slowness of the government-run arbitration system, it is no wonder that companies and individuals are considering other arbitration providers.
Of course, government will try and maintain it's position, claiming a monopoly. But competition, freedom to enter markets, and contractual agreements offer a far better solution, and arbitration services are no exception.
If you don't like Netflix's features (cost, movies, supported devices, user experience, and rules), the get entertainment from somewhere else.
What do they want to do if they are afraid they'll get sued by their customers?
You have it exactly right. You cannot enter into a legal agreement where you sign away one of your rights. For instance, I couldn't sign a binding contract that said "you may not vote". Courts would throw it out.
The reason why they add these clauses is because they are trying to trick people. Ever see the sign on the back of a large truck? "This Vehicle Not Responsible for Objects Coming from Road"? Or in parking lots at grocery stores. "Not Responsible for Damage Caused by Shopping Carts." Know why they have those signs? Because they hope you believe them. They're not true. It's up to the courts to make that determination after you bring suit. Of course the defendant is going to say "not guilty".
It's a bluff, that's all. They are just hoping you believe it.
Weaselmancer
rediculous.
Why would this shit hold up in court? Oh, you can't read this message without agreeing to pay me five dollars; now I'm taking you to court? This is ridiculous. WAKE UP!
IANAL, but I'm fairly certain that you can not enter into a contract where you give up the right to go to court.
My question would be, since that clause is not legal, does that invalidate just that part of the agreement, or does that invalidate the entire contract?
We need a test case.
Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.
The Bill of Rights were never intended to apply to the states. On the contrary, they were a follow-up to a promise by James Madison to the states rights guys (aka, Anti-Federalists) that if they ratified the Constitution, there would be some amendments that would limit on federal power (there were 12, ten were ratified).
While several of the Amendments (or parts thereof) in the Bill of Rights were later incorporated by SCOTUS pursuant to the 14th Amendment, the 7th Amendment right to jury trial in civil cases was never incorporated (the Re-Examination Clause was).
Slashdot "libertarians": Small government for me, big government for those I disagree with. -1, I disagree with you
"loser pays" clauses. While arbitration cannot take away rights of parties, it can add "rights." Loser paying for costs is a big disincentive to lawsuits.
/. ignorance of the law. Almost every consumer electronics contract has an arbitration clause. Every ISP, every cable contract, every car sale contract. They are everywhere. You guys remind me of Louis in Casablanca, shocked, shocked to find arbitration clauses!
Of course, the reason federal law and courts like arbitration is there is no way the already crowded courts can possibly handle all the cases. Whine about consumer rights all you want, but 90% of civil cases in America use alternative dispute resolution (e.g., settlement, arbitration, etc) to reach agreement on cases instead of court trials. If they did not, raise your hand if you are willing to pay the taxes (not someone else pay, you pay) to build 900% more courthouses and pay for the staff to accommodate the increased caseload.
Why this is news escapes me, other than typical
Slashdot "libertarians": Small government for me, big government for those I disagree with. -1, I disagree with you
'These Terms of Use provide that all disputes between you and Netflix will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court).
http://www.pcworld.com/article/252026/atandt_wont_appeal_decision_in_throttling_suit.html
IANAL, but you don't need one in small claims court. If you have a dispute, consider small claims court. Where I am from the max is $3000. Other venues set a limit of $10,000. Now imagine millions of customers individually persuing a common dispute, such as breach of personal data, in small claims court. Netflix would deeply regret their move.
...the Devil ever pulled wasn't in making the world think he didn't exist. It was getting regular shmoes to willingly declare war on their own best interests. Like hating on government oversight of industry, hating on unions, and...hating on class action lawsuits.
The only people taking the risk are the lawyers. They don't win, not only do they not get paid, but they have to compensate their staff out of pocket. If you don't agree with their level of compensation, then hire your own damn lawyer to file your own damn case.
But of course, that would likely cost you thousands of dollars if real money is involved, and you might have little chance of success. See: how the cigarette industry won every individual lawsuit brought against them, for decades. Compared to the possibility of you getting a check in the mail for putting in no effort on your part besides sending a letter in the mail.
You could try small claims court over a smaller sum, but would you even bother for the low amounts of money frequently featured in class action lawsuits? Say your find out your cellular carrier went on charging you $2/month in "regulatory recovery fees" six months after they were legally allowed to. Are you really going to spend $50 to file a small claim over a matter of $24? And even if you did, your carrier would simply shrug it's shoulders and pay up - while keeping their mattress of cash collected from all the other people they ripped off who aren't filing their own claims. That's why we have these class action lawsuits in the first place - because companies rip off thousands to millions of customers who can not or will not press the issue on their own.
Your only other alternative is a level of government oversight with real inspection and enforcement powers. But of course, the same people that hate class action lawsuits tend to be the same sort of people that hate government oversight.
I don't want these minor problems litigated in the first place. The mortgage case was over the rounding method used when the amount came to exactly 1/2 a cent. Do you always round up, or do you use the even/odd rule and round 22.5 up and 21.5 down. This really wasn't worth sending $65M to a lawyer to argue about. The costs passed onto me to pay for this unwanted lawyer far exceed the nickel or so I might have gained.
I wonder if the courts would be quite so gung-ho to support a EULA I clearly print on the back of a check with a line for agreement/endorsement below?
Then you're in favor of companies making millions (or even billions) by ripping people off, so long as each individual amount is small.
Thanks for reminding me to address the other Gaping Fallacy in your first post, as I had forgotten it. This notion that accountability is a waste of time is nonsense in two different ways. First, if you don't force a change in behavior, what do you think companies will do? They'll go right on ripping you off, of course.
Secondly, the bit about how they'll just raise prices to make up for it is a complete myth because all prices are already set to maximize revenue. It doesn't matter if the market is captive or competitive. If BP is hit with the true cost of their clusterfuck in the Gulf of Mexico, they can't simply raise the price of oil by $5 a barrel to pay for it because Exxon and Shell would eat them for lunch. If the market is held captive by a monopoly, the product is already priced at the point the market will bear.
Both are pretty equally evil though -- easily confused.
PocketPermissions Android Permission Guide
They give you an out, but seriously how many people other than myself and a hand full of others actually take the time
to read a EULA http://i43.tinypic.com/15o854w.jpg
I think I've found a way to void the PS3 EULA, through a reseting the system (not that it's going to do me any good)
Search Youtube for "Bypassing Sonys PS3 4.1 License agreement"
Are a constant surprise.
That is the surprise is that the peasants haven't rebelled a long time ago.
If Google really cared they would fix Android Chrome to reflow text, instead of discriminating
Can we instead choose to sue the CEO and all management in a class action suit instead addressing the complaint to "Netflix".
Yes, we should punish Citibank severely for not specifying which rounding method it was going to use in those hundred pages or so of legal fine print I got with my mortgage. Certainly this justifies harsh prison sentences for the CEO and board of directors. I bet they wished they'd added yet another page to that hundred page document - then they would have been safe from this idiotic lawsuit.
It says my mortgage payment are due by the close of business. But it doesn't seem to specify a time zone. Could be grounds for another class action!
If there is no space to sign WITHOUT PREJUDICE, don't bother entering into the contract.
So what happens if somebody DDOS's Netflix, hacks them, or whatever. If that person himself/herself has a Netflix account... then it would be interesting to see what might happen when this clause is brought up.
There are no surprises here. Netflix doesn't do much for you anyway. Try to complain about anything you haven't rented and you won't even find a contact form. lol They say you can watch stuff on line but only with propriatry Silverlight, guess that leaves me out. I canceled their subscription.
Every time I log in I get nagged to agree to their new terms of service but I never do it. My service has not been affected at all.
Can anyone think of any cyberpunk dystopia where corporations had this much power? In every one I can think of they largely skirted the law, but when they were caught they either went to court or waged physical war. This level of government support of corporate power was unforeseen. I guess real life turned out less libertarian and more fascist.
"When information is power, privacy is freedom" - Jah-Wren Ryel
I am a lawyer too (although not in MA), and I believe this clause is enforceable. I do not believe you are giving either the Federal Arbitration Act or the SCOTUS case its appropriate weight.
I am not really sure on what basis you are concluding that this arbitration clause is enforceable. It appears to following the American Arbitration Association's rules, which is standard, so there doesn't appear to be a basis to say the clause is unconscionable for lack of balance.
Just one more reason I will not be renewing my membership with these money grabbing assholes
All companies in all forms have been trying to take away people's right to take them court since probably the day after the US Constitution went into effect. It hasn't worked nor will it ever.
The Neutral Arbitrator will be chosen by Netflix. If that arbitrator does not regularly decide in Netflix's favor, they will be replaced by a different "neutral" arbitrator.
You do realize you've been contradicting yourself, whether it be in rant-mode or sarcasm-mode, right? Either this 'rounding error' is such a trifling trivial matter of insignificance that no one should waste any time on it, or redress is onerous burden placed on the bank that will be passed on to you.
Which one is it?
And, what again is your alternative to class action lawsuits...is it:
1. You contribute towards legal fees (expensive)
2. You hire your own lawyer (more expensive)
3. Roll over and take it when a company rips you off
4. Invest government agencies with serious investigation and enforcement powers