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Netflix Terms of Service Invalidates Your Right To Sue

timothy posted more than 2 years ago | from the but-you-agreed-didn't-you dept.

The Courts 206

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.'"

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Not legal. (5, Insightful)

Anonymous Coward | more than 2 years ago | (#39388285)

Next question.

yep (3, Insightful)

poetmatt (793785) | more than 2 years ago | (#39388293)

entirely non starter. Not enforceable either.

So why is this news?

Re:yep (5, Informative)

Anonymous Coward | more than 2 years ago | (#39388501)

Completely enforceable in the US.

US Supreme Court ruled that binding arbitration agreements are legal and enforceable.

Still, not news, as every company will soon have this clause.

Re:yep (1, Informative)

bmo (77928) | more than 2 years ago | (#39388545)

Nope. Not enforceable.

Verizon got spanked for such terms in its contracts.

You cannot sign away your rights.

--
BMO

Re:yep (0)

Anonymous Coward | more than 2 years ago | (#39388599)

It's absolutely enforceable. Sorry. I'm not sure why this is even in question. It's been less than a year since the AT&T decision.

Re:yep (5, Insightful)

Anonymous Coward | more than 2 years ago | (#39388711)

So... is anyone going to provide a citation instead of just shouting that the other person is wrong?

Re:yep (5, Informative)

Tsian (70839) | more than 2 years ago | (#39388761)

This blog discusses the case and its ramifications briefly

Significance: Under this Supreme Court ruling, consumer contracts that require binding arbitration and prohibit participation in classwide arbitration are allowable.
http://lawprofessors.typepad.com/banking/2011/05/us-supreme-court-okays-binding-arbitration-clauses-prohibiting-consumers-from-joining-class-actions.html [typepad.com]

Re:yep (5, Informative)

digitalaudiorock (1130835) | more than 2 years ago | (#39389651)

Yup...and I can't for the life of me figure out how that jives with the 7 th Amendment [wikipedia.org] : "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." Seems pretty clear to me.

Re:yep (0)

Anonymous Coward | more than 2 years ago | (#39388765)

Sure: http://www.usatoday.com/news/washington/judicial/2011-04-27-supreme-court-class-actions_n.htm. That covers the most recent ruling that you can contract out of class action suits. It's long been established though that you can contract out of using the courts for litigation and be forced to use arbitration.

Re:yep (0)

Anonymous Coward | more than 2 years ago | (#39388713)

...and AT&T was given US Supreme Court blessings in 2011. And CompuCredit was given the same blessing in 2012.

It's legal.

It's here.

Bend over.

Brokerage Industry in US has binding arb. (0)

Anonymous Coward | more than 2 years ago | (#39388739)

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.

Re:Brokerage Industry in US has binding arb. (1)

Anonymous Coward | more than 2 years ago | (#39388829)

As if the courts were any better, where it costs several hundred thousand dollars just to bring a suit to trial and where the good ol' boys club includes both the lawyers and the judges...

Re:yep (1)

Anonymous Coward | more than 2 years ago | (#39389621)

In case you hadn't noticed, Google has that very same clause in the new privacy policy, the one written by the David Drummond asshole.

--
mchurch

Re:yep (0)

Anonymous Coward | more than 2 years ago | (#39388549)

Regardless, you can still sue. You should just make sure you have followed any contractual obligations to attempt arbitration first.

Re:yep (5, Insightful)

russotto (537200) | more than 2 years ago | (#39388565)

Right, because the law explicitly makes arbitration legal. (See "Federal Arbitration Act"). The courts don't want to have to deal with actually providing justice (or even injustice) to pissants like us; better to fob us off on a "neutral" arbitrator hired by the other party who can deal out injustice without bothering the judges.

Re:yep (3, Insightful)

errandum (2014454) | more than 2 years ago | (#39388747)

Arbitration doesn't work like this (at least where I come from). There are 3 arbitrators, one yours, one from them and one neutral, as in, agreed by both parties. So the "neutral" should be neutral. And even if it is only one, it should still be agreed by both.

On the other hand, it is highly unlikely that you'll ever get a giant compensation via arbitration, and I believe that is what they are trying to avoid. It is also extremely more cost effective in terms of legal bills.

Unlike most people, I do believe that most claims should be decided like this. Decisions would be speedier, there would be no legal system to abuse because you have more money and power than the common joe...

Most people don't know what arbitration is... That's why they complain. It is actually a common clause in contracts between giant companies - and believe me, none of them want to lose money.

Re:yep (4, Interesting)

russotto (537200) | more than 2 years ago | (#39388791)

Arbitration doesn't work like this (at least where I come from). There are 3 arbitrators, one yours, one from them and one neutral, as in, agreed by both parties. So the "neutral" should be neutral. And even if it is only one, it should still be agreed by both.

You might go to an arbitrator once or twice in your lifetime. These companies deal with them all the time. That means every arbitrator has no incentive to keep you happy and every incentive to keep the other side -- their repeat customers -- happy.

Unlike most people, I do believe that most claims should be decided like this. Decisions would be speedier, there would be no legal system to abuse because you have more money and power than the common joe...

Yes, decisions would be speedier all right.

Most people don't know what arbitration is... That's why they complain. It is actually a common clause in contracts between giant companies - and believe me, none of them want to lose money.

Giant companies can use arbitration effectively because they're already similarly situated.

Re:yep (1, Interesting)

errandum (2014454) | more than 2 years ago | (#39388865)

You're forgetting that the decision on an arbitrator has to be agreed by both parties. If you feel you're getting the short end of the stick, simply don't agree to him and another one needs to be found.

Your assumption that every arbitrator in the country will be corrupt is the reason why there is no progress and the courts are jammed. The man is not always out to get you. You can get a fair judgment.

Re:yep (0)

Anonymous Coward | more than 2 years ago | (#39388981)

Where is this coming from? Outside of the US? You can include the specific arbitrator in the contract. That effectively removes the mutual decision.

Re:yep (5, Insightful)

russotto (537200) | more than 2 years ago | (#39389387)

You're forgetting that the decision on an arbitrator has to be agreed by both parties. If you feel you're getting the short end of the stick, simply don't agree to him and another one needs to be found.

How, as a consumer, am I to know anything about the arbitrator? I don't have a legal department to research these things. And in any case, all arbitrator are similarly situated -- they all hear a lot of cases where the plaintiff is J. Random Consumer who they'll never see again, and a few massive companies who they'll see again and again and again.

Your assumption that every arbitrator in the country will be corrupt is the reason why there is no progress and the courts are jammed.

It's not that every arbitrator in the country is corrupt. It's that the process is such that the arbitrator's interests naturally favor the corporation. If an arbitrator gets the reputation of being too consumer-friendly, the corporations (who can research these things) will stop agreeing to him and he's out of a job. If an arbitrator gets the reputation of always agreeing with the corporation, most consumers won't even know about it, and those few who do find out aren't significant enough to matter.

In any case, deciding disputes is the civil courts' JOB. If they can't do it, why the heck do we even have them?

Re:yep (1)

hazem (472289) | more than 2 years ago | (#39389421)

Doesn't "binding arbitration" mean that you agree to be bound by the decision of the arbitrator before he/she actually makes their actual decision? It's my understanding that you agree up-front to be bound whatever they decide. I don't think you get their decision then get to decide, "Nah, I don't like that, never mind.".

Re:yep (2)

poetmatt (793785) | more than 2 years ago | (#39388965)

Uh, no. They said certain parts of binding arbitration agreements are enforceable if it doesn't create an undue burden. They didn't say you could actually give up your right to litigation.

Re:yep (1)

Guppy06 (410832) | more than 2 years ago | (#39388753)

[citation needed]

Re:yep (0)

Anonymous Coward | more than 2 years ago | (#39389413)

The fact that more service providing Corporations are doing this should be a concern.

When your Medical Insurance company inserts this clause, after refusing treatment for a recently upgraded medical treatment due to lax internal processing updates, perhaps then you'll take appropriate notice.

Won't matter to you though, right? You have several million to fight over several years in court. Nope. You'll probably be dead by then. /though this scenario is a statistical outlier, it is entirely real and has happened before

Re:Not legal. (0, Interesting)

Anonymous Coward | more than 2 years ago | (#39388441)

Next question.

In the EU for sure.
In the US who the hell knows. And to find out it would cost you millions. So you bend 90 degrees and take it up like a man.

Re:Not legal. (1)

Anonymous Coward | more than 2 years ago | (#39388443)

It is perfectly legal. Business lobbies have purchased congress to affirm in law that these stipulations are allowable.

Re:Not legal. (-1)

Anonymous Coward | more than 2 years ago | (#39388515)

Congress can pass any law it likes, but it is the court system that determines if it is legal or not.

Re:Not legal. (2, Informative)

macs4all (973270) | more than 2 years ago | (#39388523)

It is perfectly legal. Business lobbies have purchased congress to affirm in law that these stipulations are allowable.

Really? I must have missed the repeal of the Seventh Amendment to the U.S. Constitution (which guarantees not only a right to sue, but in fact guarantees a JURY TRIAL in any controversy in excess of TWENTY dollars), AND the vacating of 250 years of case law that stands for the proposition that the waiver of a constitutional right must be express, informed and knowing.

A "click contract" doesn't meet any of those criteria, regardless of what South Park would lead you to believe.

Re:Not legal. (3, Insightful)

kurt555gs (309278) | more than 2 years ago | (#39388555)

Verizon just won this in the Supreme court. You must be reading Constitution V 1.0 which is out dated. The 7th Amendment has been revised to allow big companies to do what ever they want as I just said along with reducing the 1st, 2nd, 4th, 5th, and 6th amendments to meaningless gibberish.

Re:Not legal. (4, Informative)

iamgnat (1015755) | more than 2 years ago | (#39388575)

Really? I must have missed the repeal of the Seventh Amendment to the U.S. Constitution

Not a repeal, but a sound gutting:

Re:Not legal. (1)

maroberts (15852) | more than 2 years ago | (#39389147)

Really? I must have missed the repeal of the Seventh Amendment to the U.S. Constitution (which guarantees not only a right to sue, but in fact guarantees a JURY TRIAL in any controversy in excess of TWENTY dollars)

Back then twenty dollars was real money and you could actually buy something more than a couple of months of Netflix with it.

who wrote this? (3, Insightful)

mapkinase (958129) | more than 2 years ago | (#39388307)

Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury

Kafka?

Re:who wrote this? (0)

Anonymous Coward | more than 2 years ago | (#39389631)

At least someone scuttling like a roach....

Irrelevant for the normal consumer (4, Insightful)

FaxeTheCat (1394763) | more than 2 years ago | (#39388313)

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.

Re:Irrelevant for the normal consumer (5, Informative)

jonsmirl (114798) | more than 2 years ago | (#39388345)

That's the real problem. The only winner in these class actions is the lawyers. They get $20M. The consumers get coupons and the service raises their price to collect the $20M and give it the lawyers.

I got a check for $0.02 in a mortgage case when the class action lawyer took home $65M. Funny how the account servicing fee went up $0.10 a month after that. Probably cost me over $20 to recover that $0.02 I had been "cheated" out of.

Re:Irrelevant for the normal consumer (0)

Anonymous Coward | more than 2 years ago | (#39388457)

So yes, the lawyers are the only winners but they're not the only losers and that is the point. While I think a much better system would be to cap the lawyers at some small percentage given that the lawsuits bring in massive judgements the way it stands now it still punishes the corporation which why it is a lever for changes in behavior rather than a method to make the end users wealthy. That has some value in trying to make corporations "act right". As a result when companies try this sort of crap the proper response probably ought to be some sort of class action lawsuit even if you only get $0.02.

Your point about them raising prices to cover the costs....absolutely they do, but that's the point, the market will punish that if it gets too excessive.

The real problem is the various systems in place that make true and open competition tough or impossible (e.g. patents) at which point companies without real competitors can do whatever they want and the legal remedies don't work at that point. Most class actions while outwardly claiming to right wrongs (which a few have historically) these days they really come down to changing corporate behavior for the next guy down the line rather than help you address a grievance. That doesn't make them useless however.

Re:Irrelevant for the normal consumer (1)

Shavano (2541114) | more than 2 years ago | (#39389263)

I think what's needed is a cap on the fraction of a class action settlement or judgment that can go to attorney costs.

Re:Irrelevant for the normal consumer (1)

Anonymous Coward | more than 2 years ago | (#39389605)

The consumers get coupons and the service raises their price to collect the $20M...

That's the real punishment for these companies. They now have an extra fixed cost that makes them less competitive. They lose business because of that.

Not irrelevant at all (4, Interesting)

drinkypoo (153816) | more than 2 years ago | (#39388393)

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.

Re:Not irrelevant at all (0)

Anonymous Coward | more than 2 years ago | (#39389317)

The company makes an extra 5 million per year for 5 years by ripping people off.

They get fined 20 million.

Company: Yeah that's a good idea. Lets do it. And then do it again.

Re:Not irrelevant at all (1)

Ihmhi (1206036) | more than 2 years ago | (#39389623)

Moreover, a lot of the time you can't sue them on your own. If a company or service is big enough, a judge will say you don't have the "standing" to sue, which is a pile of horseshit.

Re:Irrelevant for the normal consumer (2)

sarysa (1089739) | more than 2 years ago | (#39388397)

I have to agree. The real potential damage by Netflix is so small, suing them makes little sense to begin with. That said, I find it amusing that they mention in the TOS that you can sue in small claims. A torrent of those could do a lot of damage, and would be difficult to defend. (Insufficient legal resources) Probably what the AT&T guy was going for.

Re:Irrelevant for the normal consumer (1)

khallow (566160) | more than 2 years ago | (#39388433)

The real potential damage by Netflix is so small, suing them makes little sense to begin with.

There's still spite, the real or perceived ability to inflict harm on someone you don't like.

Re:Irrelevant for the normal consumer (1)

iamhassi (659463) | more than 2 years ago | (#39388717)

I have to agree. The real potential damage by Netflix is so small, suing them makes little sense to begin with. That said, I find it amusing that they mention in the TOS that you can sue in small claims. A torrent of those could do a lot of damage, and would be difficult to defend. (Insufficient legal resources) Probably what the AT&T guy was going for.

I saw that. Small claims goes to 3 or 5 grand depending on the state. Netflix is what, about $10 a month? What could possible happen that I would need to sue for more than $3,000? "OH NOES TOy SToRy Z GON iz sue 4 10000000000!!!"

Re:Irrelevant for the normal consumer (0)

Anonymous Coward | more than 2 years ago | (#39389275)

They overcharge you by $3,001 and refuse to refund your money?

Re:Irrelevant for the normal consumer (5, Interesting)

Sponge Bath (413667) | more than 2 years ago | (#39388517)

The values i a Netflix subscription is just too small for a normal person to engage in a lawsuit.

What if Netflix leaked your private information, including credit card, and decided to hide the fact for months until you are the victim of identity theft that takes years of aggravation to clean up? Is that enough value to seek a legal remedy?

Re:Irrelevant for the normal consumer (1)

tgibbs (83782) | more than 2 years ago | (#39388673)

What if Netflix leaked your private information, including credit card, and decided to hide the fact for months until you are the victim of identity theft that takes years of aggravation to clean up? Is that enough value to seek a legal remedy?

You'd probably still do better in individual binding arbitration. In a class action suit, there is a strong incentive for the lawyer to settle, even if the benefit to the individual members of the class is very small, because the lawyer avoids the cost, time commitment, and uncertainty of a trial, and even if the individual settlements are puny, the lawyer gets a slice of all of them, so his payoff can be quite substantial.

Re:Irrelevant for the normal consumer (1)

zippthorne (748122) | more than 2 years ago | (#39388725)

They shouldn't have your credit card number in the first place. You should be using a virtual account number [wikipedia.org] for online credit uses.

But I still think you have a good point about the private information. Especially your watched or rating history. In the wrong hands that could be fodder for some good character assassination no matter what's on the list. Even moreso if you had "Birth of a Nation" out for a month and a half for a college course...

Re:Irrelevant for the normal consumer (1)

Attila Dimedici (1036002) | more than 2 years ago | (#39388839)

I really do not think that in a case like that, that this clause would hold up. The type of lawsuit that a "binding arbitration" clause stops is one about interpretation of the contract. However, a lawsuit over the company doing something/allowing something to happen that everyone would agree was a violation of the contract (or not protected under the contract) and the only real questions in the suit is whether the company is actually liable for the events in question and how much that liability is, will usually stand up in the face of such arbitration clauses (as long as you have gone through the arbitration process first).

Re:Irrelevant for the normal consumer (1)

shentino (1139071) | more than 2 years ago | (#39389303)

I don't think a contract can eliminate liability for tortious actions.

And getting immunity from a criminal case? Dream on.

Re:Irrelevant for the normal consumer (0)

Anonymous Coward | more than 2 years ago | (#39389629)

That sounds potentially criminal. You can't contractually release them from criminal liability or SEC hammering.

Re:Irrelevant for the normal consumer (1)

tgibbs (83782) | more than 2 years ago | (#39388635)

I agree. Class action suits over services like this just drive up costs for all customers, and are basically a scam to enrich lawyers. The members of the class receive a pittance, not even worth the effort to fill out the paperwork. Congratulations to Netflix for implementing arbitration.

Re:Irrelevant for the normal consumer (0)

Anonymous Coward | more than 2 years ago | (#39388995)

Good point. I had a similar situation a while ago. After canceling my phone contract with the Deutsche Telekom, they failed to reimburse me for the 10.60 Euros they charged too much in their last bill.

Did I sue them over 10 Euros? No.

But do I put them on my personal boycott list and tell everyone what kind of crooks they are? You betcha.

Re:Irrelevant for the normal consumer (0)

Anonymous Coward | more than 2 years ago | (#39389171)

See, I agree with this completely...netfix costs what 300 bucks a YEAR for one of their bigger packages? My cell phone bill is almost 300 a month (5 smart phones). Plus If I get annoyed with Netfilx, I just call up and tell them to go pound sand, with my cell phone company, I would have to pay almost $1400 in early termination fee's to do that, so walking away is a painful experience, and this is what makes it beneficial to take them to court. If Verizon throttled my data plans (which are still unlimited) I would take them to small claims plain and simple, and they probably wouldn't even show up to dispute it, resulting in a summary judgement for a decent ammount of money.

If I were to sue netflix, what could I possibly hope to recover?

Re:Irrelevant for the normal consumer (1)

TaliesinWI (454205) | more than 2 years ago | (#39389551)

Yeah, I don't get this at all. If Netflix starts pulling shenanigans I cancel my account and I'm out the $20 for the month, that's it. Why would I even think about bothering to sue them? This isn't like a cell phone situation where you're locked into a contract for two years and if they don't provide the service you think they promised you can't just cancel, so you have to sue them for redress.

if they break the law... (1, Insightful)

Bananatree3 (872975) | more than 2 years ago | (#39388315)

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

Re:if they break the law... (1)

iamgnat (1015755) | more than 2 years ago | (#39388605)

Look up the SCOTUS ruling from 2011 about AT&T and their contracts requiring binding arbitration. It's already been done, tested, and upheld.

Re:if they break the law... (4, Informative)

History's Coming To (1059484) | more than 2 years ago | (#39388659)

In the UK you can't sign away your statutory rights. If I sign a contract saying I won't sue for negligence and the company are negligent, then I can sue and the judge will probably see the contract as a minus point for the defendant/s.

Example - my landlord can put a clause in the rent contract saying he is not responsible for the safety of animals (reasonable, as I live on a farm), but he can't get out of a statutory obligation such as ensuring electrical safety in the premises, no matter what I sign.

Re:if they break the law... (1)

iamgnat (1015755) | more than 2 years ago | (#39388775)

We used to have such rights too. But wether it's enforceable or not in another country doesn't matter to the majority of their subscriber base.

Re:if they break the law... (1)

houghi (78078) | more than 2 years ago | (#39389359)

In most (all?) civilized countries there will be laws that will be more important then any other contract I might sign. Even if BOTH parties are willing to uphold the contract, the contract can be seen void and thus illegal.
The excuse "But you signed it." does not mean anything in those cases.

And I am talking about contracts, not even terms of agreement. Those mean even less. That does not mean that you can not have specific agreements, but they must follow the law in the first place.

Class action lawsuits are rare in the UK (1)

Anonymous Coward | more than 2 years ago | (#39389397)

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)

Re:if they break the law... (1)

zAPPzAPP (1207370) | more than 2 years ago | (#39388889)

A contract goes both ways.

If they indulge in shady actions contrary to what they promise to do in the EULA, then they would have broken the contract.

Wouldn't that relieve you of any bindings within it?

Re:if they break the law... (1)

IndustrialComplex (975015) | more than 2 years ago | (#39389373)

A contract goes both ways.

If they indulge in shady actions contrary to what they promise to do in the EULA, then they would have broken the contract.

Wouldn't that relieve you of any bindings within it?

What they 'promise to do' in an EULA? They promise to do nothing most of the time. An EULA is basically just a big statement of "We very marginally grant you the right not to be murdered for looking at our software. For everything else, YOU GET NOTHING, GOOD DAY!"

Re:if they break the law... (0)

Anonymous Coward | more than 2 years ago | (#39389037)

Binding arbitration only pertains to issues related to the contract. If Netflix engages in criminal conduct or conduct outside the scope of the contract's terms, then there is no binding arbitration.

The more interesting aspect of it is that the binding arbitration agreement is part of the contract. If either party breaks the contract, should it apply? Can you break the contact by suing?

What other legal rights can they get you to waive? (2)

mykos (1627575) | more than 2 years ago | (#39388329)

I'd like to test this sometime and see if I can take someone's life, liberty, or pursuit of happiness from them.

Re:What other legal rights can they get you to wai (4, Insightful)

Hatta (162192) | more than 2 years ago | (#39388351)

In the US it's common to take someones life and/or liberty because of their pursuit of happiness.

Re:What other legal rights can they get you to wai (1)

Gideon Wells (1412675) | more than 2 years ago | (#39388461)

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.

Everyone join in (0)

Anonymous Coward | more than 2 years ago | (#39388347)

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.

Re:Everyone join in (1)

Toad-san (64810) | more than 2 years ago | (#39388391)

Netflix, and anyone else trying to sneak or extort a forced arbitration out of me can kiss my shiny metal butt. (I lost it over Macho Grande, but never mind that for now.) If the company has a compelling reason (fair and good for both of us) to suggest arbitration, fine, let's hear it then and there. But I plan to keep my options open.

Re:Everyone join in (0)

Anonymous Coward | more than 2 years ago | (#39388477)

I'll never get over Macho Grande

Re:Everyone join in (0)

Anonymous Coward | more than 2 years ago | (#39388429)

"Just because someone says something is the rule does not make it the rule."br
It sure does if IT'S THE LAW!

EULA = broken (2, Insightful)

Anonymous Coward | more than 2 years ago | (#39388401)

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.

Re:EULA = broken (1)

Dunbal (464142) | more than 2 years ago | (#39388431)

Just another case of careful work by a contract lawyer

Or in many cases, copy-pasting someone else's EULA.

Netflix has authority beyond the law? (2, Insightful)

dicobalt (1536225) | more than 2 years ago | (#39388405)

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?

Re:Netflix has authority beyond the law? (1)

Nyder (754090) | more than 2 years ago | (#39388481)

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?

Because Corporations are more important then people in the governments eyes?

Re:Netflix has authority beyond the law? (1)

Sponge Bath (413667) | more than 2 years ago | (#39388701)

Because Corporations are the most important people in the governments eyes?

Updated for the current "corporations are people" insanity.

Re:Netflix has authority beyond the law? (1)

Anonymous Coward | more than 2 years ago | (#39388529)

Because a contract IS enforceable law, unless the contract is for clearly legal behavior.

There are two classes of behavior: illegal (those explicitly listed by the laws of your country, state/province, city/town/township government), and legal (everything else). "Rights" are neither legal nor illegal - they are things that the GOVERNMENT cannot take from you. If you give up your Rights in a contract (or EULA), that is totally legal and enforceable.

We have a much larger problem, in that private contracts are now as powerful as the government (and sometimes more powerful). This means that large corporations (and their legions of lawyers) can now revoke your rights by contract, and there's nothing the government will do to stop it.

Re:Netflix has authority beyond the law? (1)

dicobalt (1536225) | more than 2 years ago | (#39388733)

This comes down to procedure for handling situations where one law contradicts another law. Netflix has insufficient jurisdiction and insufficient reason to contradict existing law. Netflix merely wants to save money on legal fees. It's not good enough.

Re:Netflix has authority beyond the law? (0)

Anonymous Coward | more than 2 years ago | (#39389009)

I think that's wrong. Not all contracts are legally enforceable. I don't believe they can, for instance, make you into a slave.

Re:Netflix has authority beyond the law? (0)

Anonymous Coward | more than 2 years ago | (#39389189)

I think that's wrong. Not all contracts are legally enforceable. I don't believe they can, for instance, make you into a slave.

That's only because slavery is illegal. If it wasn't, then the contract would be enforceable and legal. As I said:

unless the contract is for clearly legal behavior

Of course this all assumes that you will be using or interacting with the government court system and its laws. If you never bring them into the picture (or invent a way to keep them out of the picture like Arbitration) then all those pesky laws and restrictions no longer apply (from a practical standpoint) and you can do whatever you want. Kneecapping anyone?

Re:Netflix has authority beyond the law? (0)

DerekLyons (302214) | more than 2 years ago | (#39388553)

How can an EULA supersede law?

Trivially.
 
Or are you serious? You're actually so ignorant that you don't know that you can sign away your rights under the law?

Re:Netflix has authority beyond the law? (1)

Anne_Nonymous (313852) | more than 2 years ago | (#39388585)

>> How can an EULA supersede law?

It can't. It's just there to discourage you from trying to sue.

Re:Netflix has authority beyond the law? (1)

Kjella (173770) | more than 2 years ago | (#39388993)

How can an EULA supersede law?

Because the law says you can [cornell.edu] :

9 USC 2 - VALIDITY, IRREVOCABILITY, AND ENFORCEMENT OF AGREEMENTS TO ARBITRATE

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

In short: "A written provision in (...) a contract (...) to settle by arbitration (...) shall be valid, irrevocable, and enforceable, (...)", the last part might save you if you claim the whole contract is unconscionable but not for your average dispute.

USA, (0)

Anonymous Coward | more than 2 years ago | (#39388435)

you're a joke to the world.

Re:USA, (4, Interesting)

Spiked_Three (626260) | more than 2 years ago | (#39388783)

Mod him up. I live here (the US) and I agree. The US is becoming a joke to me too.

Another fine example, DirecTV has over 30,000 consumer complaints AND had an injunction filed against them in 2009 for deceptive business practices. And they have changed absolutely nothing in their business model. They still lie, bait and switch, refuse to allow you to cancel, then claim on TV they have the highest customer satisfaction rating.

Life in the US is about dodging ripoffs from large corporations, co-sponsored by the government that encourages it. There used to be a certain amount of good faith expected in business, that is gone completely. Investors demand more profit, and don't care who gets ripped off to get it. That is the entire problem. The founders of capitalism warned if the rich got too powerful the system would fail - and it is, but the rich will not let you know that.

Look at it another way (if it is not obvious); You are being required to give up the Constitution in order to watch a movie in a way that is convenient to you. Are you living in the United States of america or some warlord run African tribe? Sure we have choice in America, paper or plastic? George Carlin said it in the 90s. Other than our grocery bags, little else is left up to us (In Seattle, plastic grocery bags become illegal starting in June :| )

Redy set screw'em (0)

Anonymous Coward | more than 2 years ago | (#39388437)

Just another company planning to screw the customer over.

Disgusting (1)

Mike Mentalist (544984) | more than 2 years ago | (#39388453)

It's utterly disgusting that they would even put something like that in it.

Not upholdable (0)

Anonymous Coward | more than 2 years ago | (#39388479)

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.

loophole (1)

alphatel (1450715) | more than 2 years ago | (#39388539)

Sue them for changing the terms.

If Netflix has this "right"... (3, Insightful)

mallydobb (1785726) | more than 2 years ago | (#39388589)

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.

In Brazil (0)

Anonymous Coward | more than 2 years ago | (#39388853)

Things like this are not enforceable here.

They really should simplify the contract ... (1)

MacTO (1161105) | more than 2 years ago | (#39388915)

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.

I don't click "agree" (1)

pruss (246395) | more than 2 years ago | (#39388997)

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?

Re:I don't click "agree" (0)

Anonymous Coward | more than 2 years ago | (#39389119)

Often by continuing to pay you are considered to be accepting the terms of the contract under which you are paying. You continued subscription is probably being taken as acceptance of the terms.

Re:I don't click "agree" (0)

Anonymous Coward | more than 2 years ago | (#39389355)

IANAL, but the onus is probably on them to prove that you were at least made aware of the changes in the contract. If you're like me and queue up a hundred movies at the beginning of the year and then rarely log in to your account, then you probably aren't aware of the changes. This is the first I've heard of the change of the TOS.

IAAL and it IS unenforceable (5, Informative)

PDG (100516) | more than 2 years ago | (#39389243)

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.

Half A Bluff (1)

glorybe (946151) | more than 2 years ago | (#39389405)

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.

Their viewers (1)

doston (2372830) | more than 2 years ago | (#39389495)

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.

My State forbids it (0)

Anonymous Coward | more than 2 years ago | (#39389579)

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.

The corporate 5 on the Supreme Court aside (2)

HangingChad (677530) | more than 2 years ago | (#39389643)

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.

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