Eh... you can't really get charged with contempt for telling your opposing council to fuck off... unless perhaps you do it in court and directly to them...
But you're perfectly free to tell an opposing council in a meeting to fuck off and die... sure it's not going to solve anything, and just create an escalation of aggression in the lawsuit, but then we're all just trolls 'round these parts, right?
I've been to boot camp as well, and the instructors were generally fairly well respected, even if they were harsh and/or abusive. In fact, the only people I ever really saw, who ended up hating the instructors, were the ones always making trouble...
It can't be discrimination to require someone to be able to do a job. That would be like saying you couldn't have a literacy requirement for an editor. There are these things called qualifications. As long as the employer is trying to make things as accessible as possible, I don't see how it is discriminatory to require a minimum level of job performance and competency.
That's exactly the point, there is a minimum level of requirement. Once the person satisfies that minimum, it is discrimination to take any action against them for failing to be "perfect". Thus, despite Random Former-Mexican Citizen #42 being reasonably comprehensible to students, and consistently being rated well by the students as a good teacher, some manager somewhere might decide that because he speaks with an accent, that it is valid justification to fire him, and hire Random Mid-West American Citizen #39, who speaks with a considered-to-be-neutral accent.
RFMC#42 has met the minimum requirements, and is clearly performing his job adequately, if not exceedingly well. So, firing him because he has any form of accent at all is clear discrimination against him for being a former foreign national.
You stated that Newton and Einstein are both wrong. Newton was however more wrong than Einstein.
You seem to assert that Newton was accurate and wrong, but that Einstein will be shown to be wrong, but that he cannot be accurate.
Seems like a weird sort of argument to make to me... "A is totally possible, but A' is not." By analogy, the two are exactly the same assertion, just with different theorists proposing the theory...
They used GPS measurements at a time of war for the nation controlling the system. Perhaps that particular nation routinely blocks a precision medium range cruise missile capability for everyone else but them in these "warry" times.. Which is more probable, a malfunctioning satellite or distorted satellite signal, or a hundred years physics proven inaccurate?
Since they likely took numerous readings for position to check their work, the malfunctioning satellite is kind of unlikely. The distorted satellite signal is a strong possibility though, as it would introduce a greater error range than they were expecting. This explanation would fit nicely with my comment "miscalculated distance".
Also possibilities: errors in calculating the point of generation, and the exact time of generation. All this stuff was wrapped up in the "10 nanosecond" error range that they openly acknowledge. I suppose my point is, "they're only off the error margin by a factor of 6... that is not a particularly strong confidence level". If their error range were 1 nanosecond, then I might actually be more intrigued.
Einstein's theories are not measures but theories so they can't be inaccurate: they are either right or wrong.
"just the same as Newton before him was inaccurate."
Newton was not inaccurate, he was wrong. In fact, he was wrong in a very accurate way (unless you are talking about cosmic distances and masses or really fast speeds, the measures you'd experimentally get would be those predicted by Newton's formulae).
First, Einstein's theories also contain mathematical models. These mathematical models lend themselves to predicting the results of measurements. Depending on how much these measurements differ from those predicted by the model one can find out how accurate the model is.
Of course, I'm splitting hairs and we're both just playing semantic games, but I suppose my point is that there is not a single monolithic "wrong", but rather a gradient of wrongness, with models that more accurately predict reality being less wrong than others.
You don't need to include all the wonderful interesting new ideas that are unproven and untested. The neutrinos arrived 60 nanoseconds faster than expected, with an error margin of 10 nanoseconds. So, really, they just have to have miscalculated the distance between the generation point and the detector by 60 feet. (Distance done in feet, due to the extremely convenient "light speed is approximately one foot per nanosecond".) They've already admitted that they could have had measurement errors in the same order of magnitude, so it's not that unreasonable.
Everything you say is correct, but "primary language" has already been established in US law as being sufficiently linked to "national origin" so that if someone discriminates against you based on your primary language not being English, that it is equivalent to them discriminating against you for not being from the USA.
It's seem everyone so wrap up in the discrimination issue and not think of the children. Regardless of his accent, If you can't understand the teacher, what good is the teacher?
You're right. And this would be a case where accent is absolutely necessary to perform their job. However, if the teacher is teaching children just fine, but speaks with a hint of Spanish accent, and is sent to "accent neutralization" to remove that accent, then that is a discriminatory employment action.
This "think of the children" thing can get annoying, too. A lot of people used to be of the mind to object to their children being taught by a black person, and even today, it's likely that a parent might object that a teacher is atheist/muslim, or a foreigner. But at some point, we have to acknowledge that not all limitations or objections need be corrected. I'm sure Andrew Schlafly would complain if his children were being taught by a female, because he wants an intelligent teacher, and he is of the belief that women are less intelligent than men. (Or "differently" intelligent.)
In any case, there is an absolute minimum requirement that is acceptable or necessary to do a job, and rejecting someone who exceeds that minimum because they are not "optimal" is unethical, and depending upon the reasons, in the USA, it could be illegal.
But how is it discrimination if it doesn't impact them getting the job?
Because at some point, if someone fails to learn a "good enough" accent, then they might be terminated, or not promoted, or any of a number of negative employment actions that the employer might take. None of which would be legal under US law.
Given the current level of pedophile-paranoia, I'm surprised no fringe politician has yet suggested manditory castration for all male teachers just as a precaution. We're already at the point where teachers are afraid to talk to the pupils about anything other than the lesson for fear of the contact being seen as inappropriate.
This comment is clearly sexist. There are female teachers who rape students as well. Mandatory castration for all male teachers would be an unreasonable discrimination and prima facie illegal discrimination.
I don't think this is about what is absolutely necessary, but what is the most efficacious. There can really be no argument that teaching in a neutral "accent" is the most efficacious for the most number of people. Other issues not withstanding.
The law does not allow one to discriminate upon certain grounds even if it is the most efficacious choice. As I noted elsewhere, the most efficacious choice would be to only hire men, or women who have been sterilized, as then your employees would never need to use maternity leave. This choice however is blocked because it's the unethical choice (as it unfairly excludes perfectly reasonable candidates).
As a (very poor) analogy, the most efficacious way to figure out how syphilis progresses would be to infect a bunch of people and leave it untreated to see the disease progression, while continuing close monitoring of conditions to ensure that good data is collected. Now, regardless of how efficacious that process would be, it would be outright unethical to do it. (And it was outright unethical when it actually was done.)
It's important to remember that civil rights and human rights trump efficacious choices when they come into conflict. Thus, just because it would produce better learning in students is not a sufficient reason to retaliate against employees who speak with a foreign accent. (I do not know if a regional accent that is not foreign to the US would have the same protections, so this comment was intentionally limited only to foreign accents.)
You present evidence that learning proper pronunciation in high school is important.
I didn't do any such thing. I said that of the three German teachers I had in High School only one of them was a native German speaker. If you think about it, I'm kind of saying that high schools don't typically seem to care that a foreign language teacher is a native speaker of the language.
If you're talking about the comment "unless you're in high school at a particularly young age", then I would point out that most people get to High School at about age 14, which is still over the 12-13 age rage of puberty onset for boys (girls even earlier.)
Looking at the statement syntactically, I could say "unless pigs fly, you won't see one flying", but that doesn't mean that I am asserting that pigs actually do fly.
TL;DR: if you read "proper accent learning is important in High School", then you misunderstood me.
"never have to worry about them getting pregnant, getting anyone else pregnant"
If anything I listed the females first in the list.
I could quote mine you too, and demand that you apologize for something you didn't say as well. There will be no "my bad", because the gender that I had in mind when I was writing the text was explicitly female... I included the "getting anyone else pregnant" in order to be inclusive of men.
The text also did not assume at first that these pregnancies were between teachers and students... they apply to ALL pregnancies, and if your women can't get pregnant no matter whom her partner is, then you never have to deal with maternity leave. Which was the entire point of why removing the gonads would prove to be more optimal.
I would be surprised if accent and diction training for call center workers (especially if time and expenses are paid by the employer) were illegal, immoral, or otherwise unacceptable in either the U.S. or India. I think the two arguments got a bit tangled. Thanks for the clarification.
If the time and expense are paid by the employer, then yeah, highly unlikely. However, if someone could be fired under sufficiently arbitrary criteria for failing to have a "good enough" accent, some of the firings could run afoul of US law.
I missed a step in your argument. You are claiming that English skill is not absolutely necessary to perform the job of answering English-language telephone calls? If working in a call center doesn't qualify as a job that requires English skill, then what does?
My argument is that a perfectly neutral American accent is not absolutely necessary to teach children.
Requiring a teacher to teach a without an accent is appropriate where the students are learning the language. That is why schools ask for native Spanish speakers to teach Spanish.
Of the three German teachers I had in High School, only one was native German.
One picks up accents that they are exposed to. Do you want students learning "proper" language? Of course when teaching post secondary, it is not important as the language skills are solidified.
Actually, phoneme "solidification" occurs at about puberty. So, unless you're in high school at a particularly young age, then it should matter equally as much in High School, as it does in post-secondary.
And even if young children are exposed to an unusual accent, they will not pick it up unless it is prevalent throughout the community that they're raised in. Growing up in New Mexico, I've met people who were raised in Spanish-only homes and speak fluent English with a neutral English accent. (NM is actually known for being "accentless" for TV anchors, etc.)
For instance it definitely would be optimal for all the teachers to have their gonads removed... then you would never have to worry about them getting pregnant, getting anyone else pregnant, and actually, it would remove nearly all of their sex drive, so the rates of inappropriate teacher/student relationships would certainly go down.
There was no implication of what gender the teacher was at all in any of this...
...it would be optimal to have all of the teachers in the school at least speaking something close to the same accent.
It would also be optimal to have all the teachers have identical religious beliefs, and heck, even identical appearances. (Yeah, it's convoluted.) The point is that we can't ever achieve "optimal", and forcing things to "optimal" just because its the "best choice" is actually almost automatically a violation of human rights. For instance it definitely would be optimal for all the teachers to have their gonads removed... then you would never have to worry about them getting pregnant, getting anyone else pregnant, and actually, it would remove nearly all of their sex drive, so the rates of inappropriate teacher/student relationships would certainly go down.
It's interesting as well, because there is a difference in the application of the accent neutralization. The phone support providers are private employers, while the schools are public employers. As such public employers are restricted to certain conditions that private employers are not, because the public employers are both government and an employer.
The Supreme Court has held that discrimination even by private employers based on not speaking English is only permissible when English skill is absolutely necessary to perform their job, because otherwise it is discrimination based on national origin (which is illegal).
Therefore forced "accent neutralization" is clearly a discrimination based on national origin. So the immediate requirement is a necessity to show that it is absolutely necessary for job performance.
Of course, Indian call centers aren't beholden to US law anyways, so even if it is a violation, it doesn't matter because in their country, it is not a violation. Of course, the Indian call center workers are also paid less than the US federal minimum wage, but it's not a "violation" because it's in another country. So, why can't it be both? Or context/country sensitive?
Oh, you're one of THOSE people... yeah, ok... you go ahead and wage a war against the US... lord knows that should be cheaper than lobbying for a law to change. You know, because you're only squaring off with a military that spends $600 billion a year... shouldn't cost much more than $3.50, I suppose...
In this case, I the user am not clicking "No". Instead, I am replying with, "Yes, but with amendments." If the software quits out, fine.
The problem is that you are not saying, "Yes, but with amendments". You're saying, "No, unless amendments."
But if the software proceeds to let me use it, that sounds an awful lot like the company accepting the amended EULA.
As noted, this is at best an implied accepted of the agreement. However, you on the other hand would need to click the "I disagree" button when you are presented with the EULA/ToS if you wanted to propose a counter offer contract. If you clicked on the "I accept", you're stating that you accept the terms of the unmodified EULA/ToS.
Your comments about the machine not being capable of processing and understanding the amendments is curious --- most of us users aren't capable of processing and understanding the original EULA, even with time taken to read through it.
Computers cannot enter into any contracts, while humans can. That is what he was trying to make clear.
the party that drafted the contract has to accept any strike outs as well.
Likewise, the party that did not draft the contract has to accept it too. Which in this case, it did not (because it made a counter offer). So, we're basically back to a situation where no specific contract exists between the parties, so any relationship between them is governed by the general laws, rather than any clauses in a "contract" to which one party did not agree.
If the person made a counter offer, and the EULA/ToS offering party has not made an acceptance of that counter offer then it is actually a mistake to believe that simply by making the counter offer you have dodged agreement to the EULA/ToS. If you carry on to use their product that is governed by the terms of the EULA/ToS after having made a counter offer, but without any specific acknowledgement of the acceptance of that counter offer, then you're implicitly assuming consent to your counter offer on their side, while they have the fact that you actually clicked "Accept" to their contract.
You cannot use something governed by a EULA/ToS under the terms of a counter offer contract unless they accept your counter offer. In most cases not accepting their EULA/ToS will result in them denying their service to you, which means under the "general laws" that you note now govern the relationship, you still have no right to use whatever they are offering under the terms of the EULA/ToS.
There is no way to "cheat" around the EULA/ToS and continue to use their service without accepting the terms of the EULA/ToS. The use of their services is conditioned upon acceptance of their EULA/ToS. As such, if you make a counter offer, then you have to wait until they accept your counter offer, before you can use their services.
This is obviously not enforceable in court.
Quite true. This is the point.
My point was that the COUNTER OFFER will not be enforceable in court. If you used their services despite presenting a counter offer EULA/ToS, then unless you have a specific acceptance of that counter offer contract, then you will be judged to be bound to the terms of the EULA/ToS as drafted by the opposing party.
This really doesn't make any better state for the person offered the EULA/ToS than just clicking the "Disagree" button when presented with the EULA/ToS. Even after making your counter offer, you are still not afforded access to the service until either they accept your counter offer, or you accept their original offer.... and if you went on to use their services, guess which way the court is going to rule... (hint: against you).
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Eh... you can't really get charged with contempt for telling your opposing council to fuck off... unless perhaps you do it in court and directly to them...
But you're perfectly free to tell an opposing council in a meeting to fuck off and die... sure it's not going to solve anything, and just create an escalation of aggression in the lawsuit, but then we're all just trolls 'round these parts, right?
I've been to boot camp as well, and the instructors were generally fairly well respected, even if they were harsh and/or abusive. In fact, the only people I ever really saw, who ended up hating the instructors, were the ones always making trouble...
It can't be discrimination to require someone to be able to do a job. That would be like saying you couldn't have a literacy requirement for an editor. There are these things called qualifications. As long as the employer is trying to make things as accessible as possible, I don't see how it is discriminatory to require a minimum level of job performance and competency.
That's exactly the point, there is a minimum level of requirement. Once the person satisfies that minimum, it is discrimination to take any action against them for failing to be "perfect". Thus, despite Random Former-Mexican Citizen #42 being reasonably comprehensible to students, and consistently being rated well by the students as a good teacher, some manager somewhere might decide that because he speaks with an accent, that it is valid justification to fire him, and hire Random Mid-West American Citizen #39, who speaks with a considered-to-be-neutral accent.
RFMC#42 has met the minimum requirements, and is clearly performing his job adequately, if not exceedingly well. So, firing him because he has any form of accent at all is clear discrimination against him for being a former foreign national.
You stated that Newton and Einstein are both wrong. Newton was however more wrong than Einstein.
You seem to assert that Newton was accurate and wrong, but that Einstein will be shown to be wrong, but that he cannot be accurate.
Seems like a weird sort of argument to make to me... "A is totally possible, but A' is not." By analogy, the two are exactly the same assertion, just with different theorists proposing the theory...
They used GPS measurements at a time of war for the nation controlling the system. Perhaps that particular nation routinely blocks a precision medium range cruise missile capability for everyone else but them in these "warry" times.. Which is more probable, a malfunctioning satellite or distorted satellite signal, or a hundred years physics proven inaccurate?
Since they likely took numerous readings for position to check their work, the malfunctioning satellite is kind of unlikely. The distorted satellite signal is a strong possibility though, as it would introduce a greater error range than they were expecting. This explanation would fit nicely with my comment "miscalculated distance".
Also possibilities: errors in calculating the point of generation, and the exact time of generation. All this stuff was wrapped up in the "10 nanosecond" error range that they openly acknowledge. I suppose my point is, "they're only off the error margin by a factor of 6... that is not a particularly strong confidence level". If their error range were 1 nanosecond, then I might actually be more intrigued.
Einstein's theories are not measures but theories so they can't be inaccurate: they are either right or wrong.
"just the same as Newton before him was inaccurate."
Newton was not inaccurate, he was wrong. In fact, he was wrong in a very accurate way (unless you are talking about cosmic distances and masses or really fast speeds, the measures you'd experimentally get would be those predicted by Newton's formulae).
You are being wronger than wrong.
First, Einstein's theories also contain mathematical models. These mathematical models lend themselves to predicting the results of measurements. Depending on how much these measurements differ from those predicted by the model one can find out how accurate the model is.
Of course, I'm splitting hairs and we're both just playing semantic games, but I suppose my point is that there is not a single monolithic "wrong", but rather a gradient of wrongness, with models that more accurately predict reality being less wrong than others.
You don't need to include all the wonderful interesting new ideas that are unproven and untested. The neutrinos arrived 60 nanoseconds faster than expected, with an error margin of 10 nanoseconds. So, really, they just have to have miscalculated the distance between the generation point and the detector by 60 feet. (Distance done in feet, due to the extremely convenient "light speed is approximately one foot per nanosecond".) They've already admitted that they could have had measurement errors in the same order of magnitude, so it's not that unreasonable.
Everything you say is correct, but "primary language" has already been established in US law as being sufficiently linked to "national origin" so that if someone discriminates against you based on your primary language not being English, that it is equivalent to them discriminating against you for not being from the USA.
It's seem everyone so wrap up in the discrimination issue and not think of the children. Regardless of his accent, If you can't understand the teacher, what good is the teacher?
You're right. And this would be a case where accent is absolutely necessary to perform their job. However, if the teacher is teaching children just fine, but speaks with a hint of Spanish accent, and is sent to "accent neutralization" to remove that accent, then that is a discriminatory employment action.
This "think of the children" thing can get annoying, too. A lot of people used to be of the mind to object to their children being taught by a black person, and even today, it's likely that a parent might object that a teacher is atheist/muslim, or a foreigner. But at some point, we have to acknowledge that not all limitations or objections need be corrected. I'm sure Andrew Schlafly would complain if his children were being taught by a female, because he wants an intelligent teacher, and he is of the belief that women are less intelligent than men. (Or "differently" intelligent.)
In any case, there is an absolute minimum requirement that is acceptable or necessary to do a job, and rejecting someone who exceeds that minimum because they are not "optimal" is unethical, and depending upon the reasons, in the USA, it could be illegal.
But how is it discrimination if it doesn't impact them getting the job?
Because at some point, if someone fails to learn a "good enough" accent, then they might be terminated, or not promoted, or any of a number of negative employment actions that the employer might take. None of which would be legal under US law.
The paranoia though focuses almost entirely on males. The discriminatory result merely reflects a discriminatory cause.
I will grant you that. Garbage in, garbage out. :(
Given the current level of pedophile-paranoia, I'm surprised no fringe politician has yet suggested manditory castration for all male teachers just as a precaution. We're already at the point where teachers are afraid to talk to the pupils about anything other than the lesson for fear of the contact being seen as inappropriate.
This comment is clearly sexist. There are female teachers who rape students as well. Mandatory castration for all male teachers would be an unreasonable discrimination and prima facie illegal discrimination.
I don't think this is about what is absolutely necessary, but what is the most efficacious. There can really be no argument that teaching in a neutral "accent" is the most efficacious for the most number of people. Other issues not withstanding.
The law does not allow one to discriminate upon certain grounds even if it is the most efficacious choice. As I noted elsewhere, the most efficacious choice would be to only hire men, or women who have been sterilized, as then your employees would never need to use maternity leave. This choice however is blocked because it's the unethical choice (as it unfairly excludes perfectly reasonable candidates).
As a (very poor) analogy, the most efficacious way to figure out how syphilis progresses would be to infect a bunch of people and leave it untreated to see the disease progression, while continuing close monitoring of conditions to ensure that good data is collected. Now, regardless of how efficacious that process would be, it would be outright unethical to do it. (And it was outright unethical when it actually was done.)
It's important to remember that civil rights and human rights trump efficacious choices when they come into conflict. Thus, just because it would produce better learning in students is not a sufficient reason to retaliate against employees who speak with a foreign accent. (I do not know if a regional accent that is not foreign to the US would have the same protections, so this comment was intentionally limited only to foreign accents.)
If you didn't see this coming, then you don't understand science...
You present evidence that learning proper pronunciation in high school is important.
I didn't do any such thing. I said that of the three German teachers I had in High School only one of them was a native German speaker. If you think about it, I'm kind of saying that high schools don't typically seem to care that a foreign language teacher is a native speaker of the language.
If you're talking about the comment "unless you're in high school at a particularly young age", then I would point out that most people get to High School at about age 14, which is still over the 12-13 age rage of puberty onset for boys (girls even earlier.)
Looking at the statement syntactically, I could say "unless pigs fly, you won't see one flying", but that doesn't mean that I am asserting that pigs actually do fly.
TL;DR: if you read "proper accent learning is important in High School", then you misunderstood me.
"never have to worry about them getting pregnant, getting anyone else pregnant"
If anything I listed the females first in the list.
I could quote mine you too, and demand that you apologize for something you didn't say as well. There will be no "my bad", because the gender that I had in mind when I was writing the text was explicitly female... I included the "getting anyone else pregnant" in order to be inclusive of men.
The text also did not assume at first that these pregnancies were between teachers and students... they apply to ALL pregnancies, and if your women can't get pregnant no matter whom her partner is, then you never have to deal with maternity leave. Which was the entire point of why removing the gonads would prove to be more optimal.
I would be surprised if accent and diction training for call center workers (especially if time and expenses are paid by the employer) were illegal, immoral, or otherwise unacceptable in either the U.S. or India. I think the two arguments got a bit tangled. Thanks for the clarification.
If the time and expense are paid by the employer, then yeah, highly unlikely. However, if someone could be fired under sufficiently arbitrary criteria for failing to have a "good enough" accent, some of the firings could run afoul of US law.
I missed a step in your argument. You are claiming that English skill is not absolutely necessary to perform the job of answering English-language telephone calls? If working in a call center doesn't qualify as a job that requires English skill, then what does?
My argument is that a perfectly neutral American accent is not absolutely necessary to teach children.
Requiring a teacher to teach a without an accent is appropriate where the students are learning the language. That is why schools ask for native Spanish speakers to teach Spanish.
Of the three German teachers I had in High School, only one was native German.
One picks up accents that they are exposed to. Do you want students learning "proper" language? Of course when teaching post secondary, it is not important as the language skills are solidified.
Actually, phoneme "solidification" occurs at about puberty. So, unless you're in high school at a particularly young age, then it should matter equally as much in High School, as it does in post-secondary.
And even if young children are exposed to an unusual accent, they will not pick it up unless it is prevalent throughout the community that they're raised in. Growing up in New Mexico, I've met people who were raised in Spanish-only homes and speak fluent English with a neutral English accent. (NM is actually known for being "accentless" for TV anchors, etc.)
Um...
For instance it definitely would be optimal for all the teachers to have their gonads removed... then you would never have to worry about them getting pregnant, getting anyone else pregnant, and actually, it would remove nearly all of their sex drive, so the rates of inappropriate teacher/student relationships would certainly go down.
There was no implication of what gender the teacher was at all in any of this...
...it would be optimal to have all of the teachers in the school at least speaking something close to the same accent.
It would also be optimal to have all the teachers have identical religious beliefs, and heck, even identical appearances. (Yeah, it's convoluted.) The point is that we can't ever achieve "optimal", and forcing things to "optimal" just because its the "best choice" is actually almost automatically a violation of human rights. For instance it definitely would be optimal for all the teachers to have their gonads removed... then you would never have to worry about them getting pregnant, getting anyone else pregnant, and actually, it would remove nearly all of their sex drive, so the rates of inappropriate teacher/student relationships would certainly go down.
Innovation or violation?
It's interesting as well, because there is a difference in the application of the accent neutralization. The phone support providers are private employers, while the schools are public employers. As such public employers are restricted to certain conditions that private employers are not, because the public employers are both government and an employer.
The Supreme Court has held that discrimination even by private employers based on not speaking English is only permissible when English skill is absolutely necessary to perform their job, because otherwise it is discrimination based on national origin (which is illegal).
Therefore forced "accent neutralization" is clearly a discrimination based on national origin. So the immediate requirement is a necessity to show that it is absolutely necessary for job performance.
Of course, Indian call centers aren't beholden to US law anyways, so even if it is a violation, it doesn't matter because in their country, it is not a violation. Of course, the Indian call center workers are also paid less than the US federal minimum wage, but it's not a "violation" because it's in another country. So, why can't it be both? Or context/country sensitive?
Oh, you're one of THOSE people... yeah, ok... you go ahead and wage a war against the US... lord knows that should be cheaper than lobbying for a law to change. You know, because you're only squaring off with a military that spends $600 billion a year... shouldn't cost much more than $3.50, I suppose...
In this case, I the user am not clicking "No". Instead, I am replying with, "Yes, but with amendments." If the software quits out, fine.
The problem is that you are not saying, "Yes, but with amendments". You're saying, "No, unless amendments."
But if the software proceeds to let me use it, that sounds an awful lot like the company accepting the amended EULA.
As noted, this is at best an implied accepted of the agreement. However, you on the other hand would need to click the "I disagree" button when you are presented with the EULA/ToS if you wanted to propose a counter offer contract. If you clicked on the "I accept", you're stating that you accept the terms of the unmodified EULA/ToS.
Your comments about the machine not being capable of processing and understanding the amendments is curious --- most of us users aren't capable of processing and understanding the original EULA, even with time taken to read through it.
Computers cannot enter into any contracts, while humans can. That is what he was trying to make clear.
the party that drafted the contract has to accept any strike outs as well.
Likewise, the party that did not draft the contract has to accept it too. Which in this case, it did not (because it made a counter offer). So, we're basically back to a situation where no specific contract exists between the parties, so any relationship between them is governed by the general laws, rather than any clauses in a "contract" to which one party did not agree.
If the person made a counter offer, and the EULA/ToS offering party has not made an acceptance of that counter offer then it is actually a mistake to believe that simply by making the counter offer you have dodged agreement to the EULA/ToS. If you carry on to use their product that is governed by the terms of the EULA/ToS after having made a counter offer, but without any specific acknowledgement of the acceptance of that counter offer, then you're implicitly assuming consent to your counter offer on their side, while they have the fact that you actually clicked "Accept" to their contract.
You cannot use something governed by a EULA/ToS under the terms of a counter offer contract unless they accept your counter offer. In most cases not accepting their EULA/ToS will result in them denying their service to you, which means under the "general laws" that you note now govern the relationship, you still have no right to use whatever they are offering under the terms of the EULA/ToS.
There is no way to "cheat" around the EULA/ToS and continue to use their service without accepting the terms of the EULA/ToS. The use of their services is conditioned upon acceptance of their EULA/ToS. As such, if you make a counter offer, then you have to wait until they accept your counter offer, before you can use their services.
This is obviously not enforceable in court.
Quite true. This is the point.
My point was that the COUNTER OFFER will not be enforceable in court. If you used their services despite presenting a counter offer EULA/ToS, then unless you have a specific acceptance of that counter offer contract, then you will be judged to be bound to the terms of the EULA/ToS as drafted by the opposing party.
This really doesn't make any better state for the person offered the EULA/ToS than just clicking the "Disagree" button when presented with the EULA/ToS. Even after making your counter offer, you are still not afforded access to the service until either they accept your counter offer, or you accept their original offer. ... and if you went on to use their services, guess which way the court is going to rule... (hint: against you).
How could that be possible?
How can a contract with an arbitration clause even be enforceable until the contract is agreed to?
What stops you from balking and simply refusing to sign?
Yeah, it didn't make much sense to me either, but it's what the court ruled.