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Court says "no" to changing terms of service without notification

arstechnica.com — Are you a company that is thinking of changing your terms of service agreement without notifying your users? The US Court of Appeals in the ninth circuit says that's a big no-no, even if the user originally agreed that they don't need to be informed.

Who dugg this? Made popular Jul 30, 2007

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  • MasterThief117, on 10/10/2007, -4/+38EDIT: I just realized I am not funny.
  • millworx, on 10/10/2007, -0/+9What good are contracts now a day anyways when the person creating the contract can change it whenever they feel like.
  • Error601, on 10/10/2007, -0/+6The bits they added:

    (1) additional service charges
    (2) a class action waiver
    (3) an arbitration clause
    (4) a choice-of-law provision pointing to New York law
  • Cyber_Akuma, on 10/10/2007, -0/+6Dosen't every EULA ever basically state exactly this, that they can change it's terms and conditions at anytime without having to notify you? This could get interesting if a company ever tries to use this part of an EULA in court now.
  • Novagenesis, on 10/10/2007, -1/+7Better now than after commencing a career as a stand-up comic.
  • adml_shake, on 10/10/2007, -0/+6As time goes on it seems like were starting to see that more and more EULA's can't really stand up when they are taken to court.
  • fernB, on 10/10/2007, -0/+6wait there is actually important info on that screen, not just an accept button?
  • Abbeygargoyle, on 10/10/2007, -1/+6Finally, the 9th Circuit Court writes a decision that makes sense.
  • Novagenesis, on 10/10/2007, -0/+5Important? yes.
    Readable? Never!
  • s1mph0ny, on 10/10/2007, -0/+4you could have unsubscribed. Suncom terminated the contract by changing the price.
  • DefaultGen, on 10/10/2007, -0/+4I never read EULAs and I wouldn't notice if someone changed one without notifying me.
  • Snakedal337, on 10/10/2007, -0/+4clause 6 in relation to article 78 strictly states that in the event of an acceptance by an impaired literature failure (from here forth "unreadable") or by those those that deem the End User License Agreement (EULA) as defined by section 9 of text 8, too difficult to read, you are ***** (from here forth "Owned").
  • cawpin, on 10/10/2007, -0/+3Yes, it does.
  • ThndrShk2k, on 10/10/2007, -0/+2However manslaughter is deemed a jailable offence, accidental, and mostly neat.
  • vastrightwing, on 10/10/2007, -0/+2Yep. No changing TOS without prior notification. Ever.
  • weebit, on 10/10/2007, -0/+2For a few years now the public has raised cain over the EULAs. And for good reason. The software industry has put enough crap in their EULAs to make a person think they are reading a large novel. A lot of the stuff is BS. Not long ago I read a article that said that most EULAs would not stand a chance in Court. Looks like they were right. All EULAs that I read had the part in them about being bound to the new version of the EULA regardless if you read it or not. Not even cars, stereos, radios, etc had this clause in them.

    All along I had a certain hatred for the software industry that wrote EULAs that took consumers rights away from them. They had no respect for the consumer, or any type of decency for the very people who were supporting them. I am glad for the ninth circuit US Court of Appeals. I believe consumers earned this victory. Now we have the task to get rid of the rest of their BS in those EULAs. I believe we have a chance to win over this after all. But I am not sure if regulation is the way to make it right, or just let the ninth circuit US Court of Appeals do their thing.
  • KarbonKopy, on 10/10/2007, -2/+4There goes AT&T's whole game plan.......
  • weebit, on 10/10/2007, -0/+2Here is a webpage on bad EULAs: http://windowssecrets.com/comp/070607/#story1
  • Error601, on 10/10/2007, -0/+1I pretty much figured that was already the case. How slack ass does Talk America have to be to not even include a notice on the bill?
  • cyberoidx, on 10/10/2007, -0/+1EULA? Whats that? Are you sure its not a typo?
  • atbnet, on 10/10/2007, -0/+1So, you wouldn't care if they decided to double the price for the service they are providing you with? Well, in that case I've got a few services to sell you!
  • Harrison88, on 10/10/2007, -1/+2In other news, Spam emails doubled this week as every website on the Internet had to inform clients to changes of their TOS.
  • cyberoidx, on 10/10/2007, -0/+1EULA:

    Point No. 234 : You produce this License to a Court
  • markgl, on 10/10/2007, -0/+1i think most of the ninth courts decisions are reversed.
  • Midtowner, on 10/10/2007, -0/+1It's the 9th Circuit. If this is appealed, I think the odds are in favor of the SCOTUS granting certiorari and reversing.
  • Midtowner, on 10/10/2007, -0/+1On the one hand, I think this is a blow to the concept of "freedom to contract." On the other, from a purely legislative standpoint, I wish more were done to protect end-user consumers who have far less bargaining power and much less of an understanding of complex legal terms such as "binding arbitration" and "choice of venue."

    I do think the 9th Circuit will be overturned. While many courts have recently been striking down provisions compelling arbitration or other provisions such as these in these types of contracts (often called contracts of adhesion since they are take it or leave it, zero-bargaining sorts of propositions), I think these courts are overstepping their roles in interpreting existing law. These sorts of interpretations as declaring things the court finds "unfair" to be unenforceable essentially amount to legislating from the bench. This is not what the courts are supposed to be doing.

    Write your congressman, tell him/her that you want to see new law which would render these despicable sorts of provisions to be unenforceable without some sort of separate consideration as part of a separate agreement, or only in contracts where bargaining is possible. This is Congress' job, not the courts.

    While I agree in principle with this ruling that this stuff is bad, I sincerely hope that the Supreme Court again reigns in the the rogue 9th Circuit once again. FYI, the 9th Circuit has almost always been the most-overturned U.S. Court of Appeals... I don't expect that to change anytime soon.
  • Cyber_Akuma, on 10/10/2007, -0/+1So you read the entire EULA every time you use the product/service?
  • Midtowner, on 10/10/2007, -0/+1There are different types of manslaughter. Some actually involve intent to kill but are excused by things such as provocation (i.e., you walk in on your wife and another man having sexy time).
  • Midtowner, on 10/10/2007, -0/+1This is only binding withing hte 9th Circuit's jurisdiction. Further, I think there's a 9/10 chance that it gets overturned.
  • Qoogirl, on 10/10/2007, -0/+1Does this apply to what Blockbuster recently did then, I wonder?
    I had no idea that my plan was completely taken out of existence with its 2 at-a-time, unlimited in-store exchange at $14.99. I was going to downgrade to 1 out, unlimited in-store exchanges, but now that'll cost me even more than what I pay now with tax. I had no idea and no notification by mail...:( Now I'll just stay on this plan I guess...
  • FKnight, on 10/10/2007, -0/+1Yes.
  • jt18, on 10/10/2007, -0/+0I have always questioned the legality of those kinds of clauses. I hope they finally get banned.
  • pt4117, on 10/10/2007, -2/+2What does this do for revised versions of the GPL?
  • atreyuVsFalcor, on 10/10/2007, -0/+0It's about time. Suncom screwed me over by upping my $50 unplan, to $60. I and everyone else who had the unplan were royally pissed and there was nothing we could do about it.
  • inactive, on 10/10/2007, -0/+0Best news I've read in awhile.
  • SlimFastForYou, on 10/10/2007, -1/+1Yeah, but who wants to bet this gets appealed to the Supreme Court and they reverse the decision? Seriously though, that along with waivers of right to court hearings or class action suits are BS. Contracts with clauses such as "you can't sue us but we can sue you", or "it's your responsibility read this contract over and over all the time because we might change it at any time without notifying you and we have your consent" should be required to have an "Attorney General's Warning" in big bold letters at the begining.. kind of like cigarettes have the "Surgeon General's Warning".
  • weebit, on 10/10/2007, -2/+1Here is a webpage on bad EULAs: http://windowssecrets.com/comp/070607/#story1
  • PATSCRU, on 10/10/2007, -5/+4court denies evil incarnate? how comforting!
  • jroyale, on 10/10/2007, -2/+0I doubt our corporate overlords are going to take this sitting down. Expect them to re-bribe enough Congress people to over turn this decision with new law... unless their henchmen on the Supreme Court get to it first.
  • Error601, on 10/10/2007, -4/+2Price change != terms of contract change.
  • FizixMan, on 10/10/2007, -5/+3Excellent! Now that'll give all the end-users one more thing to click "Accept" to without reading the legalese -- not that I blame them.
  • thecompkid, on 10/10/2007, -11/+6In other news, Court deems murder illegal, immoral, sometimes messy.

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