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Web Contracts Can't Be Changed Without Notice

kdawson posted more than 6 years ago | from the late-binding dept.

The Courts 169

RZG writes "The U.S. Court of Appeals for the Ninth Circuit ruled on July 18th that contracts posted online cannot be updated without notifying users (PDF of ruling). 'Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side,' the court wrote. This ruling has consequences for many online businesses, which took for granted their right to do this (see for example item 19 in Google's Terms of Service)."

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169 comments

Time Limited Contracts (1, Insightful)

Anonymous Coward | more than 6 years ago | (#20033131)

So now sites will just say "good for the next three months", and then have you look at a new agreement when you login three months from now?

Re:Time Limited Contracts (2, Insightful)

ShieldW0lf (601553) | more than 6 years ago | (#20033679)

This isn't particularly relevant for companies offering a free service, except perhaps inasmuch as how they use the data they collect about you, because they have no contract with you.

It would appear the relevance of this is that you can insist that service providing companies be bound by the contract that you signed up with, rather than whatever their lawyers came up with in the meantime. In other words, that favorite phrase "we reserve the right to change the particulars of this contract" is non-enforceable.

Re:Time Limited Contracts (2, Insightful)

dk.r*nger (460754) | more than 6 years ago | (#20034159)

The point of a contract is that it's two-ways. If they say "good for the next three months", then after three months their right to do anything covered by the contract (including storing your information in their system) is void. So to comply to their own contract, they'd have to contact you every time the three months are up and get you to agree to the new contract. Which is a lot more trouble than just doing that when you actually need to change it.

Re:Time Limited Contracts (2, Insightful)

pvera (250260) | more than 6 years ago | (#20034889)

The bigger web-based companies usually try to be proactive about this. I am positive that I have received advance warning from at least Amazon, eBay and Pay Pal whenever a new user agreement would kick in.

Those agreements are redacted by lawyers and go through countless revision cycles before they are approved. It doesn't hurt them to use their next sales email to point out that effective whatever date, new terms kick in, a link to read the new terms, and instructions on what to do if you do NOT agree with these. For example, if you don't agree with the new terms, you are allowed to close your account without penalty.

Booh (4, Funny)

Anonymous Coward | more than 6 years ago | (#20033149)

What about the mega-corporation's rights to mercilessly screw their customers? This ruling ain't fair, you know.

Re:Booh (0)

Anonymous Coward | more than 6 years ago | (#20033433)

I'm happy so long as the people that are screwed are people I hate.

If Bill Gates punctured a tyre, do you think many Linux users would feel sympathy for him?

Re:Booh (1)

ScrewMaster (602015) | more than 6 years ago | (#20033535)

Do you think anyone would feel sympathy for him?

Re:Booh (5, Funny)

pokerdad (1124121) | more than 6 years ago | (#20033597)

If Bill Gates punctured a tyre, do you think many Linux users would feel sympathy for him?

Nope. They would just wonder who that guy is getting out of the limo and into the helicopter.

Re:Booh (0)

Anonymous Coward | more than 6 years ago | (#20034171)

Ah, yes, the corporations. Blast those autonomous units of inhumanity. Curse them for not taking into account "The People." If only there were some simple test to decide who was amongst "The People" and who was merely a person, we'd know who to shoot first.

Perhaps it should be determined by success. Anyone who achieves more than the average should be shot. That's a good first cut.

This is why you need to VOTE FOR RON PAUL! (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#20034561)

This is why you should vote Libertarian!

Ron Paul will respect the constitution and stand up for mega-corporation rights!

=========
DISCLAIMER: Per Poe's law, I am obligated to inform you that the above is satire and should not be taken seriously, ingested, or used with alcohol. If you vote Libertarian or are about to vote Libertarian, talk to your psychiatrist, because additional warnings may apply.

And of Course (3, Insightful)

OverlordQ (264228) | more than 6 years ago | (#20033157)

Isn't this only applicable in the 9th Circus^Hit's jurisdiction?

Re:And of Course (4, Informative)

Wuhao (471511) | more than 6 years ago | (#20033223)

No, the 9th Circuit is a federal court, and so this decision has consequences nation-wide.

Re:And of Course (0)

Anonymous Coward | more than 6 years ago | (#20033325)

Not entirely true, other circuits can choose to adopt the 9th circuit's ruling as precedent (which happens more often than not). They are not bound by this case unless they choose to be. It is still possible that other circuits may establish their own interpretation of the law.

Re:And of Course (2, Informative)

Anonymous Coward | more than 6 years ago | (#20033747)

The 9th circuit is overturned by the supreme court more often than cmdrtaco changes his underwear. However, any company based in california/west coast is affected by this ruling, so it does affect a lot of internet users.

Re:And of Course (2, Funny)

Anonymous Coward | more than 6 years ago | (#20033973)

Wow. This guy knows the law, and CmdrTaco, too.

Re:And of Course (4, Informative)

cpt kangarooski (3773) | more than 6 years ago | (#20034549)

No, that reputation is undeserved. The 9th Circuit is huge, and so it sends many more cases to the Supreme Court than any of the other circuits do. However, in percentage terms, it's actually pretty average IIRC. It really needs to be split, but unfortunately, there doesn't seem to be a good way of doing that.

Re:And of Course (4, Informative)

cpt kangarooski (3773) | more than 6 years ago | (#20033453)

Well, that's true, but it's not binding precedent except for the district courts under the 9th Circuit. For everyone else, it is merely influential.

Re:And of Course (0)

Anonymous Coward | more than 6 years ago | (#20033805)

'course, a lot of those web contracts specify California law as being the applicable law...

Re:And of Course--An Excellent Reason... (1)

Nom du Keyboard (633989) | more than 6 years ago | (#20034279)

Well, that's true, but it's not binding precedent except for the district courts under the 9th Circuit. For everyone else, it is merely influential.

This sounds like an excellent reason why this ruling shouldn't be appealed to the SCOTUS. Limit the full damage of this ruling to the Ninth Circuit alone for now.

Re:And of Course (0)

Anonymous Coward | more than 6 years ago | (#20033513)

Wrong. No circuit courts have binding authority over courts in other circuits. The 9th circuit, specifically, has little persuasive authority elsewhere because it is one of the most extreme liberal circuits.

The only nation-wide consequences that result from this are those that arise because both Redmond and Silicon Valley are in the 9th Circuit.

Not a big issue (4, Insightful)

MysteriousPreacher (702266) | more than 6 years ago | (#20033163)

Well, it's not a big issue for sites that require a login. All they have to do is flash up the new terms for the users next time they log-in. World of Warcraft does this during patching if the licence has changed. WoW isn't a web site but the principle is the same.

Any site that would change its terms without some kind of notice to users has been operating in cowboy land anyway.

Re:Not a big issue (4, Interesting)

ushering05401 (1086795) | more than 6 years ago | (#20033293)

The main point, IMHO, is that the courts appear to be catching up with the tech world.

This is not an isolated incident, there have been numerous clarifications coming out that will help the internet become a more legally defined avenue through which to conduct business.

To see another example of courts starting to actually understand what they are ruling on you need look no further than today's /. front page... Check out the "Judge Permits eBay's "Buy It Now" Feature" story.

I have been following both court rulings and political decisions related to the internet for some time now, and I am finally starting to see some glimmer of hope that the most empowering utility of our time will not go down the crapper due to the ignorance of those empowered to regulate it.

Of course, there is still the net neutrality issue... but at least there is some movement toward understanding.

Regards.

Re:Not a big issue (3, Funny)

Esion Modnar (632431) | more than 6 years ago | (#20033699)

Any site that would change its terms without some kind of notice to users has been operating in cowboy land anyway.


Brokeback Mountain land, that is.

Re:Not a big issue (3, Informative)

freedom_india (780002) | more than 6 years ago | (#20033851)

Apple does it all the time with its various updates.
Without accepting the new license, itunes does NOT open.

Re:Not a big issue (1)

Dragonslicer (991472) | more than 6 years ago | (#20034641)

If iTunes won't open until you accept the updated license, how is the user not being notified of the change?

Kind of sad (5, Insightful)

CastrTroy (595695) | more than 6 years ago | (#20033167)

It's kind of sad that something like this has to be decided in court, and isn't actually just common sense. I can't have someone sign a paper contract, and then go and change everything around, and them make them bound to said contract. I don't know why anybody would think an online contract would be any different. The whole idea of changing a contract after someone has already agreed it is ludicrous.

Re:Kind of sad (0)

Anonymous Coward | more than 6 years ago | (#20033241)

You're ignoring the fact that the original contract contains the clause "we can change the terms of the contract at any time". Since you agreed to that clause, it's a bit more tricky to get out of it.

Re:Kind of sad (4, Informative)

Penguinisto (415985) | more than 6 years ago | (#20033361)

Actually, no. Any clause that has the potential or actuality of violating your rights as granted by law is automatically null and void. It's pretty obvious that "we can change the terms at any time" has a huge potential of doing just that.

The reason they still get written in is because most people haven't the clue or desire to assert that aspect of contract law.

/P

Re:Kind of sad (2, Insightful)

Compholio (770966) | more than 6 years ago | (#20033257)

The whole idea of changing a contract after someone has already agreed it is ludicrous.
No it's not, many contracts get changed after they have been agreed to. An example I've seen myself is lease agreements - when you renew your lease it can be a lot easier to revise the original contract (corrections are made and signed by both parties). I've also seen where the renewal is an "addendum" to the original contract (signed by both parties). Times change, contracts get renegotiated - you just need to be fair about the renegotiation and make sure both parties are aware of (and have agreed to) any changes.

Re:Kind of sad (2, Interesting)

Volante3192 (953645) | more than 6 years ago | (#20033387)

Ahh, but you made sure to state that the changes are "signed by both parties."

That's entirely different. But what if two parties signed a lease agreement, then the property owner goes and makes changes to it and then sues you for violating the new changes that you never signed to.

Re:Kind of sad (4, Insightful)

CastrTroy (595695) | more than 6 years ago | (#20033399)

The point is, is that these companies are not being fair about the renegotiations. There are actually no negotiations going on at all. They just change the contract, tell you if you don't like it, you can leave, and you may not even have any idea that we've changed the contract until it's too late. You're landlord can't just come to you 6 months after you've signed the lease, and take away your stove, fridge, and dishwashers, and say, sorry, we changed the terms of this contract, and you're not entitled to that stuff anymore. If you don't like it, you can leave. Oh, but you now have to give us 4 months warning before moving out, or you'll be held accountable for the extra rent.

Clickwrap/shrinkwrap usually binding contracts ... (1)

AHumbleOpinion (546848) | more than 6 years ago | (#20034401)

The point is, is that these companies are not being fair about the renegotiations. There are actually no negotiations going on at all. They just change the contract, tell you if you don't like it, you can leave ...

In the U.S. I believe it is called an adhesion contract and they are generally valid as long as the terms are reasonable, reasonable to a judge not slashdot readers. :-) To be unreasonable, or more accurately legally unconscionable, oppression or surprise is usually involved. Clickwrap and shrinkwrap are often upheld in court as long as they were not defectively implemented, for example when a download link appears at the top of a page and a license at the bottom, currently offscreen unless you scroll down.

Re:Clickwrap/shrinkwrap usually binding contracts (3, Informative)

Courageous (228506) | more than 6 years ago | (#20034465)


In the U.S. I believe it is called an adhesion contract and they are generally valid as long as the terms are reasonable, reasonable to a judge not slashdot readers. :-) To be unreasonable, or more accurately legally unconscionable, oppression or surprise is usually involved.


Or something that wouldn't have been agreed to, had any reasonable person actually read the contract. Another way of looking at it is that if the offerror of the contract had reason to believe it wouldn't have been agreed to had the terms been known, the terms are definitionally "unconcionable."

C//

Re:Clickwrap/shrinkwrap usually binding contracts (1)

AHumbleOpinion (546848) | more than 6 years ago | (#20034637)

"In the U.S. I believe it is called an adhesion contract and they are generally valid as long as the terms are reasonable, reasonable to a judge not slashdot readers. :-) To be unreasonable, or more accurately legally unconscionable, oppression or surprise is usually involved."

Or something that wouldn't have been agreed to, had any reasonable person actually read the contract. Another way of looking at it is that if the offerror of the contract had reason to believe it wouldn't have been agreed to had the terms been known, the terms are definitionally "unconcionable."


Is this "surprise"?

Re:Kind of sad (1)

arkhan_jg (618674) | more than 6 years ago | (#20033409)

I think he was making the point that you can't just go changing a physical contract after its been signed without notifying and getting agreement of both sides, and expect it to be binding. Putting up the changed version online and saying 'well, it's up to you to check and see if the contract has changed - failure to complain or cancel your service means you accept the new terms' would be ludicrous in the real world, it's amazing that this even needed to go to court.

Re:Kind of sad (1)

Adult film producer (866485) | more than 6 years ago | (#20034243)

thats the nice things about paper contracts. always bring a fat black marker and redact the portions you're not interested in agreeing to. Force them into a position where they have to agree to your terms.

Re:Kind of sad (1)

Dragonslicer (991472) | more than 6 years ago | (#20034671)

...many contracts get changed after they have been agreed to... when you renew your lease...
Isn't a lease renewal considered a new contract though? The terms of the lease you first signed aren't being changed, you're agreeing to new terms for your new lease.

Re:Kind of sad (1)

PPH (736903) | more than 6 years ago | (#20033297)

IANAL, but in paper contract land, one must actually get all parties to a contract to agree to the changes before they take force.


Things like 'opt out' or continued service as a condition of accepting all subsequent contract changes has to be spelled out very carefully in the original terms to be enforceable.

Re:Kind of sad (1)

Kjella (173770) | more than 6 years ago | (#20033317)

Agreed. Unfortunately, you can make it almost as annoying and still make the customer "agree". Pretty much every time I shop any computer components online, there's a checkbox to agree to the current terms and conditions. There's usually the same wishy-washy stuff and mostly irrelevant due to consumer protection laws anyway, but there's no information of changes or a revision history. Maybe you read it the first time. Are you going to read it the 10th time? And if they change it on the 11th? You "agreed", just like with 50-page EULAs....

Re:Kind of sad (1)

sepluv (641107) | more than 6 years ago | (#20033521)

The thing I find really annoying is all those websites that get you to fill in loads of forms to buy something or sign up for something (e.g.: a bank account or online service) and only after doing all that will they let you see the contract, but if you spend more than a few minutes reading the ten-thousand word contract of complex legalese (with an insanely high word-to-sentence ratio and no punctuation), they make you start all over again (for "security reasons"). Especially annoying if they try to disable copying and pasting of the words of the contract (I know you can get round that) to stop you from reading it.

Re:Kind of sad (1)

HiThere (15173) | more than 6 years ago | (#20033735)

You're right. My instinct at that point is to stop agreeing. In fact that's why I ended up in Linux. One too many EULAs from MS. I am, however, well aware that my reaction isn't the most common one, and that most people will just stop reading them, if they ever read them in the first place.

For that matter, I'm just on the edge of getting my wife a second computer (Linux) so that I can disconnect her Mac from the internet. Every EULA that I've read has been "not too horrible...for the most part", but they keep coming...and it's not like they have a standardized form. If something says it's GPL2, then I don't need to read any further to know what it says and how I can use it.

Re:Kind of sad (0, Offtopic)

A beautiful mind (821714) | more than 6 years ago | (#20033425)

but but but....it's a wheel, connected to a computer! Why are you telling me this great new invention isn't patentable? :)

Re:Kind of sad (1)

RealGrouchy (943109) | more than 6 years ago | (#20033669)

I can't have someone sign a paper contract, and then go and change everything around, and them make them bound to said contract.
Obviously you're not my cellphone provider.

- RG>

Probably not a binding contract anyway... (1, Insightful)

Boss, Pointy Haired (537010) | more than 6 years ago | (#20033181)

...so it doesn't really matter. Big companies like Google etc. only have ToS because their lawyers said they must have a ToS (well they would, wouldn't they), and little companies only have ToS to make themselves look like big companies.

Re:Probably not a binding contract anyway... (2, Informative)

stubear (130454) | more than 6 years ago | (#20033837)

Why is this comment moderated insightful? Whoever moderated this insightful did so because they agreed with the comment but nowhere is it insightful. "Probably not" means the commenter has some deep desire to have this legal issue considered not legally binding but at no time have EULAs or ToS contracts been deemed NOT legally binding. Until such a time as they are tested in court, they most certainly ARE legally binding. Will a company enforce them? Well, you might get a "probably not" for that question but again, until research into the issue has been done, one should not try to answer the question at all, stating instead "no one knows for sure, however, I am...[fill in your position here]."

Moderators, please quit moderating comments insightful simply because you agree with the comment. Make sure the comment is actually insightful first.

Open Directory License (2, Interesting)

sepluv (641107) | more than 6 years ago | (#20033183)

Would this affect clause 4 of the ODP (DMoz) License [dmoz.org] (and similar copyright licenses)? Maybe that isn't considered a contract or only having to make "reasonable efforts" to check for changes is acceptable.

Good! (4, Informative)

iknownuttin (1099999) | more than 6 years ago | (#20033209)

It always pisses me off that some web services say in their very long agreement that they have the right to change the terms at any time. I refuse to do business with those people.

Talk America....their telemarketers used to always bother me everyday (before the Do Not Call List) and they always gave me the creeps.

The appeals court also said the district court was wrong to grant Talk America's request for arbitration.
Arbitration panels are usually loaded with industry folks and you, the consumer, will rarely get a fair shake.

...as well as how they use their personal information after mergers or acquisitions is one that privacy experts and others have been grappling with since the emergence of e-commerce in the 1990s.
When I took a class on buying businesses, one of the ways to finance the deal was to sell off the customer list of the company you're acquiring - regardless of any privacy statement they may have stated to their customers. It's not just eCommerce sites. It's also the Mom and Pop bakery.

I'm all for capitalism and business and everything, but, sometimes, some of the things that are done makes my stomach churn. It does give me some empathy and understanding for the anti-corp folks here, though.

Re:Good! (1)

Lumpy (12016) | more than 6 years ago | (#20033231)

how about that AT&T/Cingular states that RIGHT IN THEIR CONTRACT you agree to? Almost ALL contracts have the "this contract subject ot change without notice" clause in it. the only ones that do not are the ones that got smacked down because of it, banks for example, they got nailed decades ago for deceptive practices like this

Re:Good! (1)

amber_of_luxor (770360) | more than 6 years ago | (#20034203)

When I took a class on buying businesses, one of the ways to finance the deal was to sell off the customer list of the company you're acquiring - regardless of any privacy statement they may have stated to their customers. It's not just eCommerce sites. It's also the Mom and Pop bakery.

Years ago I was offered a business for what looked like an extremely good price. The kicker was that the customer list was not part of the assets being sold. The owner was not going to include the customer list under any circumstances. The company had a privacy policy that the owner was determined to adhere to.

Amber

Changing on-line agreements in not uncommon (1)

Secrity (742221) | more than 6 years ago | (#20033225)

Almost all ISPs have posted Acceptable Use Policies that are subject to change at any time -- and they are considered to be part of the contract. I think that most ISPs are finished with fine tuning their AUPs, but for a while they had to be changed fairly frequently to close holes that spammers were exploiting to prevent their removal from the net.

Re:Changing on-line agreements in not uncommon (0)

Anonymous Coward | more than 6 years ago | (#20033373)

Yes, My ISP has a fair use policy, my BT UNLIMITED BROADBAND- That's the name under which it is sold, states that if I were to use more bandwith than they think I should, they will cut me off, so what exactly is that? Would that be a limit? It sure sounds like one.

Re:Changing on-line agreements in not uncommon (1)

vux984 (928602) | more than 6 years ago | (#20034029)

"UNLIMITED" with respect to internet access generally refers to your connect time, not your bandwidth usage.

The fact that the service is called 'unlimited' doesn't mean all aspects of the service need to be unlimited.

Suppose you had subscribed to an unlimited service contract - allowing you an unlimited number of support incidents per year for your server. And then in the fine print you read that the service contract only applies to 1 server. Would you jump up and down because they won't provide you the 'unlimited support incidents' for any machine you want -- after all clearly that's a limit!

Do you get mad when you order the 'unlimited buffet' for 9.95 and they won't let you make 20 trips bringing back a plate for everyone in your extended family? That they won't let you bring a cooler and fill it up with marshmallow salad? That you can't come back tomorrow and keep eating?

Of course not!

Moreover, in the case of bandwidth. The reason they don't specify a cap is because if they did it would be much lower than it would need to be. Suppose based on their revenue/expenses/etc they can *afford* to give *everyone* 1GB of bandwidth per month. Now the reality that most people don't come anywhere near needing that so they leave it as a soft cap -- if some people use 5 or 6GB per month, its really no big deal.

Then some guy comes along and uses 20GB per month, and starts straining part of the system so they advise him to throttle back because his usage is 'too high'. Now that guy screams bloody murder - "why didn't you tell me what the cap was in the contract" and the simple answer is that its in the customers best interest for that NOT to happen. If the ISP HAD to specify a cap they'd specify 1GB because that is all they can gaurantee. So if you wanted even 5GB you'd have to be paying extra for that.

Re:Changing on-line agreements in not uncommon (2, Insightful)

madcow_bg (969477) | more than 6 years ago | (#20034503)

"UNLIMITED" with respect to internet access generally refers to your connect time, not your bandwidth usage.

The fact that the service is called 'unlimited' doesn't mean all aspects of the service need to be unlimited.
Sorry, but this is deceptive practice. Actually, it is a plain lie. If the ad is written in a way that all normal people will think that sounds as unlimited bandwidth, then doing otherwise would be lying.

Suppose you had subscribed to an unlimited service contract - allowing you an unlimited number of support incidents per year for your server. And . then in the fine print you read that the service contract only applies to 1 server. Would you jump up and down because they won't provide you the 'unlimited support incidents' for any machine you want -- after all clearly that's a limit!
The wording of the ads and contracts matter. If they disagree, the advertisement is lying.

Do you get mad when you order the 'unlimited buffet' for 9.95 and they won't let you make 20 trips bringing back a plate for everyone in your extended family? That they won't let you bring a cooler and fill it up with marshmallow salad? That you can't come back tomorrow and keep eating?
The wording of the ads and contracts matter. If they disagree, the advertisement is lying.

Of course not!
Of course?! The wording of the ads and contracts does matter. If they disagree, the advertisement is lying.

Moreover, in the case of bandwidth. The reason they don't specify a cap is because if they did it would be much lower than it would need to be. Suppose based on their revenue/expenses/etc they can *afford* to give *everyone* 1GB of bandwidth per month. Now the reality that most people don't come anywhere near needing that so they leave it as a soft cap -- if some people use 5 or 6GB per month, its really no big deal.
Bull-fucking-shit. If they calculate that people will use 2 GB per month on average, they can still put 100GB on the ad and come out fine. The problem is they don't want to clutter the ads with useful information, they just want to lie, take your money and serve what they wish.

Then some guy comes along and uses 20GB per month, and starts straining part of the system so they advise him to throttle back because his usage is 'too high'. Now that guy screams bloody murder - "why didn't you tell me what the cap was in the contract" and the simple answer is that its in the customers best interest for that NOT to happen. If the ISP HAD to specify a cap they'd specify 1GB because that is all they can gaurantee. So if you wanted even 5GB you'd have to be paying extra for that.
No, they don't want to tell you 5GB, because then you'd actually have a reason to switch to another provider, who's giving you more for less.
Please, tell me I did not read that correctly: they have ads that say one thing (or every sane person will think they say it, which as a matter of fact is the same when advertisement is involved in court), but the contracts say another thing, and people should just swallow their 1 year contracts?! And of course it is best when users don't know the actual limits, you want to keep people happy, and it is easier to achieve this if they don't know they're ripped off.

Re:Changing on-line agreements in not uncommon (1)

r3m0t (626466) | more than 6 years ago | (#20034595)

How about this:

1) The advertisement never says "unlimited time", just "unlimited".

2) Other companies with several price plans have "5GB (basic), 10GB (premium), unlimited (super premium)"

3) Only in the advertising does it say "unlimited", not in the contract

4) It doesn't say in the Fair Usage Policy "limits may be applied at our discretion over 20GB of usage in any billing month" - just that they can do whatever they like

Well, that's the situation now.

Does this kill GPLv2 "or later"? (0)

Anonymous Coward | more than 6 years ago | (#20033245)

Does this kill the "or later" part of GPLv2 or later programs? If one side can't just choose a different license without informing the other, would this apply in reverse?

This could be a very large blow to the GPLv3 if every time anyone wants to use a GPLv2 or later program they have to inform the original authors.

Re:Does this kill GPLv2 "or later"? (1)

Jeffrey Baker (6191) | more than 6 years ago | (#20033323)

The "or later" clause is liberating, not restricting. It means that anyone may distribute the work under v2 or v3 or any later revision, at their own choosing.

Remember, the GPL is not something that the author imposes upon the user. It is a contract that the distributor freely enters with the author.

Re:Does this kill GPLv2 "or later"? (1)

outZider (165286) | more than 6 years ago | (#20033529)

Depending on your view of the GPL in general. Each iteration of the GPL seems to further limit the use of the source and binaries that it covers, so in many ways, it is 'restricting'.

Re:Does this kill GPLv2 "or later"? (1)

Mprx (82435) | more than 6 years ago | (#20033599)

The GPL is a distribution license, not a usage license. The limitations are imposed by copyright law, not by the GPL. The GPL only serves to relax those restrictions.

Re:Does this kill GPLv2 "or later"? (3, Insightful)

Jeffrey Baker (6191) | more than 6 years ago | (#20033775)

That doesn't make any fucking sense at all. How can it be restrictive to say you can have these terms, or any future terms, whichever you find more advantageous? The worst case is that all future GPLs are disadvantageous, so you stick with the current one. I fail to see how that could be considered restrictive.

Re:Does this kill GPLv2 "or later"? No (1)

roguegramma (982660) | more than 6 years ago | (#20033467)

The "or later" part is an optional part of the recommended text to include the gpl license.
If it isn't included by the author, you don't have that permission.
(So notifying the author wouldn't help)

If the part is there, he author has already signed away his rights regarding the license change to the FSF. He is trusting the FSF.

However, IANAL, if anything the FSF did to the license was not in the spirit of the old license, the new GPL would indeed be deemed unfair towards the author, but that wouldn't be a black/white decision but rather a grey area of consideration.

Re:Does this kill GPLv2 "or later"? No (1)

BlueParrot (965239) | more than 6 years ago | (#20033665)

If the part is there, he author has already signed away his rights regarding the license change to the FSF. He is trusting the FSF.
No. The "or any latter" language is an extra permission so even if the FSF released some evil draconian version of teh GPL that only means that users of software under "GPLv2 or latter" now CAN use the draconian license. They still have the option to use the good old "GPLv2". In other words, the very worst thing the FSF can do is to release a GPL version that is not copyleft, as that would effectively allow derivative works to be put under any license whatsoever ( including a draconian one ). So basically, you only need to trust the FSF if you would horribly mind your program ending up under the BSD, or a similar non-copyleft license.

Also, advocates of the BSD license should note that this permission is implicit in the BSD license as it allows relicensing under ANY license, which includes any version of the GPL. So weather you trust the FSF or not, the fact that they may change their licensing policy is certainly no reason to pick BSD over "GPL + Any latter version".

Re:Does this kill GPLv2 "or later"? No (1)

matfud (464184) | more than 6 years ago | (#20033859)

BSD allows relicensing under pretty much any other license so long as it is also licensed under BSD. You are not allowed to remove the copyright from the files.

Why "No"? (1)

roguegramma (982660) | more than 6 years ago | (#20033967)

Why "No"? Where is the contradiction to what what I've been saying?

Saying "or under later versions" means I trust the FSF that later GPL versions will still follow the idea of copyleft and will not deviate from it for example by releasing it under a license with no provisions or by a draconian license(you could consider the GPL3 to be one such if you wanted) that is actually used by newer projects and new contributions.

No it doesn't (0)

Anonymous Coward | more than 6 years ago | (#20033531)

The GPL is not a contract, it's a copyright license and is unaffected by contract law.

Apart from this relatively minor point, you're absolutely correct.

Is this still true if... (1, Insightful)

Aranykai (1053846) | more than 6 years ago | (#20033259)

Is this still the case if the contractor states in the contract agreement that they reserve the rights to do exactly this?

I remember in many TOS or EULA type documents that they often state something of the following:
"We reserve the right to change these terms at any time without notice."

Does this negate all those agreements?

Re:Is this still true if... (1)

sepluv (641107) | more than 6 years ago | (#20033533)

Yes. If you bother to RTFS or RTFA, you'd realise that it does.

Re:Is this still true if... (0)

Anonymous Coward | more than 6 years ago | (#20033969)

Yes. If you bother to RTFS or RTFA, you'd realise that it does.

So much arrogance and certainty! If this change is that earth-shattering (or USA-shatterring), we should be seeing millions of lawsuits given that such "We can change the terms of this contract/license/agreement at any time without prior notice" are rampant in all walks of life (renting/leasing apartments, subscribing tv/phone/internet/ anything-you-name-it). But I guess we are not because in the end corps/landlords/businesses don't give a damn whether some court rules against them. In the end, the vast majority of customers will never know this fancy judgement and will still lose their basic rights (if any).

Furthermore... (3, Insightful)

keraneuology (760918) | more than 6 years ago | (#20033265)

It should be illegal to impose unilateral changes to a contract without clearly highlighting and specifying the specific changes. In other words, simply providing a new copy of the contract should be considered to be a clear and unquestionable violation of basic contract law.

  • Consumers aren't lawyers. They can not be expected to read and understand all terms. Furthermore, the odds of a customer spotting a minor change (yet one that significantly alters the relationship) are slim to none. With no awareness (and full knowledge of that lack of awareness) there is no meaningful offer and therefore no meaningful acceptance. In other words there is no meeting of the minds.

  • Most of these unilateral changes are of the exclusive benefit to the provider - nothing of value is offered to the user of the service. In other words, the alteration of the contract (which brings about a new contract) is utterly and completely devoid of consideration, which should likewise be enough to render the contract null and void. The contracts are entirely too one-sided.

  • Many (if not most) of these changes fall well within the realm of being unconscionable. Again, enough to declare the contracts null and void. (If they would only revoke the license of any lawyer who signs off on any contract that violates these simple tenets it would take only a few days before fairness would reign).

Re:Furthermore... (1)

mgh02114 (655185) | more than 6 years ago | (#20033367)

It should be illegal to impose unilateral changes to a contract without clearly highlighting and specifying the specific changes...
I would have shortened your message quite a bit:

It should be illegal to impose unilateral changes to a contract.
Period. Full Stop.

Re:Furthermore... (1)

sepluv (641107) | more than 6 years ago | (#20033477)

Exactly. I've thought this should be unlawful for ages. If they just change the terms and attempt to enforce the new one, doesn't that count as fraud (if they are gaining something from the new contract anyway) given that the terms saying that they may change it at any time are invalid.

Also, maybe asking someone to agree to a contract you know to be invalid (e.g.: because of lack of consideration) should be a crime, as such things are often used divisively.

As you say there are also issues with a lack of consideration [wikipedia.org] in some of these contracts, although I think you'll find their lawyers are usually clever enough to put something in there, however small.

If second contract is reasonable, no problem ... (1)

AHumbleOpinion (546848) | more than 6 years ago | (#20034543)

It should be illegal to impose unilateral changes to a contract without clearly highlighting and specifying the specific changes.

No, replacing one reasonable adhesion contract with a second reasonable adhesion contract should remain legal. The law prohibits unconscionable contracts and protects the consumer in this regard in both the first and the second contract.

Re:If second contract is reasonable, no problem .. (1)

keraneuology (760918) | more than 6 years ago | (#20034879)

It isn't that contracts can't be changed, but that contracts shouldn't be changed without clearly highlighting and specifying the specific changes. Make all the changes you like, but make sure that all parties have at least a fighting chance to know what is different.

Bad news (1)

loimprevisto (910035) | more than 6 years ago | (#20033273)

Could this actually be bad news, in that it might be seen as strengthening/legitimizing clickwrap licenses as actual contracts?

Re:Bad news (2, Insightful)

PPH (736903) | more than 6 years ago | (#20033385)

IANAL, but from what I understand, the weakness of most of these shrinkwrap or click to activate contracts is that the product has already been purchased prior to the imposition of these terms. That's not the way contracts are supposed to work. All parties must come to an understanding prior to the exchange of consideration.

Re:Bad news (1)

Sique (173459) | more than 6 years ago | (#20034759)

That's one of the reasons shrinkwrap licenses are not valid contracts in Germany for instance. Because of the First Sale doctrin, your contract is with the shop you buy the product from, and not with the company that manufactured the product. So the manufacturing company has only the rights it gets by law, not by contract.

Simple 'Meeting of the minds' (1)

zoomshorts (137587) | more than 6 years ago | (#20033275)

Any contract has essential elements. If there is no 'meeting of the minds'
which translates to a full understanding of the terms both sides have to
abide by , then there can be no contract. If , say I sign an agreement, and
the contractor wants to change the terms at a later date, the contract is voidable.
If the agreement is for a definate time, it is enforceable. BUT there has to be a
mutual meeting of the minds to make a contract or continue a contract.

Re:Simple 'Meeting of the minds' (0)

Anonymous Coward | more than 6 years ago | (#20033331)

Given the intelligence level of joe-average, that'd void 90% of all contracts.

Yep (1)

zoomshorts (137587) | more than 6 years ago | (#20033581)

Ain't it wonderful???

Great... (1)

sykopomp (1133507) | more than 6 years ago | (#20033287)

Will this apply to cell phone companies and their secret charges, too?

Standard Form Site Contract(s) (1)

LionKimbro (200000) | more than 6 years ago | (#20033291)

I wish there were just a standard form contract, (or a handful of standard form contracts,) so that each website didn't have a unique contract.

Re:Standard Form Site Contract(s) (1)

sepluv (641107) | more than 6 years ago | (#20033381)

I'm sure the lawyers would strike—or more likely find a reason by why such an idea would be unlawful. Imagine the lost revenue?

Seriously someone should do this, a bit like the Creative Commons licenses (maybe they should do it). A problem I see is that most of the terms in these things are really unnecessary (even from the providers point of view) or adequately covered (or overridden) by legislation and full of waffling redundancy, so to do this you'd actually have to find out what they terms they contain that actually help either party (as opposed to the bank balance of the provider's lawyers).

Good (0)

Anonymous Coward | more than 6 years ago | (#20033303)

Let's hope for a ruling against email boilerplate bullshit next!

--
This message is confidential and intended solely for the recipient.
If you have recieved this message in error, you must destroy your
computer at once; then we're going to sue your pants off. Kneel
before your corporate overlords you pathetic unintended recipient!

Uninteresting (2, Interesting)

Cadallin (863437) | more than 6 years ago | (#20033333)

These "contracts" are mostly invalid in the first place. Conditions like "waving the right to sue" make them so. At least in the USA, you always have a right to sue, always. You may not win, but that's an entirely separate issue. A judge and/or jury is completely free to choose whether or not to take any such agreement into account or not. These are largely included as a psychological weapon, if you're dumb enough to think you can't sue, then you're less likely to.

The conditions cited in this article are, however, particularly asinine. What if a car dealership could change the terms of the sale any time they wanted after the sale, without your approval? How well do you think that would hold up?

'Reasonableness' test (1)

sjwest (948274) | more than 6 years ago | (#20033613)

We have standard company terms (on website and documents), we don't discourage a court to decide and being reasonable we like to set out a procedure that can avoid court action.

We might use weasel words, but court is expensive.

Re:Uninteresting (1)

AHumbleOpinion (546848) | more than 6 years ago | (#20034609)

These "contracts" are mostly invalid in the first place.

You are mistaken. Terms that require arbitration may be perfectly binding. Terms that are considered unconscionable and void would be those that are one sided. I believe one of the classic rulings on this matter was a situation where a company required arbitration but then retained the right to appeal. The right to appeal was what the judge considered one sided, not requiring arbitration in the first place.

Re:Uninteresting (1)

AusIV (950840) | more than 6 years ago | (#20034831)

These "contracts" are mostly invalid in the first place. Conditions like "waving the right to sue" make them so.

Correct me if I'm wrong, but I've been under the impression that having a contract with invalid conditions does not invalidate the entire contract.

Big corporations heaving a big sigh of relief. (3, Insightful)

140Mandak262Jamuna (970587) | more than 6 years ago | (#20033353)

The ruling affects only the contracts posted on line. The right of credit card companies, banks, brokerages, phone, electric and water utilities etc to include a piece of paper printed in unreadable font using ununderstandable language with their monthly bills and claim that their customers have been notified about the change in contracts will continue without any change.

The online companies just have to include "Contract terms have changed Click here to read, click here to ignore it and go to the site" flash screen to comply with the new ruling.

So it is all fine and wonderful and dandy in the corporate world, and peace and serenity will continue to reign in Ye Olde Country Club.

Re:Big corporations heaving a big sigh of relief. (0)

Anonymous Coward | more than 6 years ago | (#20033511)


"The right of credit card companies, banks, brokerages, phone, electric and water utilities etc to include a piece of paper printed in unreadable font using ununderstandable language with their monthly bills and claim that their customers have been notified about the change in contracts will continue without any change. "

The only alternatives I can imagine would be either;

1. The terms and conditions are provided by mail and using language that is understandable, which by definition also has to be covering and describing only how the average person is likely to use the service. In the situations where you get a special case, e.g. someone connecting their mains line to the garden pool, the company will have to take whatever the consequences are because no limitations were given.

2. The terms and conditions are provided by mail and using language that is understandable, which by definition also has to be covering and describing only how the average person is likely to use the service. In the situations where you get a special case, e.g. someone connecting their mains line to the garden pool, the company can force them to stop in retrospect regardless of that not being covered in the contract.

3. The terms and conditions are provided by mail and using language that is understandable, which by definition also has to be covering and describing only how the average person is likely to use the service. In the situations where you get a special case, e.g. someone connecting their mains line to the garden pool, arbitration is mandatory and paid by the company.

4. The terms and conditions must be explained in person, and the company must prove that the recipient has become aware of them (i.e. that a 'meeting of the minds' had taken place) before they apply.

I would take Ye Olde Country Club above The Asylum any day, thanks.

Re:Big corporations heaving a big sigh of relief. (0)

Anonymous Coward | more than 6 years ago | (#20034147)

1. The terms and conditions are provided by mail and using language that is understandable, which by definition also has to be covering and describing only how the average person is likely to use the service. In the situations where you get a special case, e.g. someone connecting their mains line to the garden pool, the company will have to take whatever the consequences are because no limitations were given.

What if the website is a pure on-line website? You can't force their customers to pay for all the processing involved in mailing a million paper mails in a short period of time, can you? The only alternative is email, which lots of customers don;t read because they know them to be junk, most of the time. Even subjects like "attention: your contract has changed" are equally bogus and would promptly be classified as typical spam trying to fool the receiver.

2. The terms and conditions are provided by mail and using language that is understandable, which by definition also has to be covering and describing only how the average person is likely to use the service. In the situations where you get a special case, e.g. someone connecting their mains line to the garden pool, the company can force them to stop in retrospect regardless of that not being covered in the contract.

How to decide what is "understandable" and to whom it is understandable?

3. In the situations where you get a special case, e.g. someone connecting their mains line to the garden pool, arbitration is mandatory and paid by the company.

Paid by the company and the cost of that passed off to all customers which means you want to rob your fellow customers. Nice try!

4. The terms and conditions must be explained in person, and the company must prove that the recipient has become aware of them (i.e. that a 'meeting of the minds' had taken place) before they apply.

For a low one-time fee of $500 + $299.95/hour. After all, a lawyer in a suit will have to spend hours trying to make ignorant people understand the basics of contract law. And on top of that psychologists/specialists will have be brought in to "prove" that recipient has become aware.

I would take Ye Olde Country Club above The Asylum any day, thanks.

Actually, you belong in an asylum.

Re:Big corporations heaving a big sigh of relief. (0)

Anonymous Coward | more than 6 years ago | (#20033587)

printed in unreadable font using ununderstandable language

Useful words:

Incomprehensible

Impenetrable

Glad to help.

Flesh light (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#20033355)

Flesh light is a masturbation aid for slashdotters, that allows you to jack it whilst thinking up witty comments to post.

"Since i've been using Flesh light my karma has been though the roof" - Anonymous coward

"Flesh light has really enhanced my slashdot experience. Post, add more lube, pump, refresh page, I could do this all day!" - Anonymous coward

http://en.wikipedia.org/wiki/Flesh_light [wikipedia.org]

What about this (0)

Anonymous Coward | more than 6 years ago | (#20033375)

say an online site asked you to agree to their terms and conditions before you can proceed, but when you click on the link to view said terms, you get errors, and never can view the terms, but if you blindly agree, the system allows you to proceed...what does the end user have to fall back on in cases like this....

9th Court has same policy (1, Funny)

Anonymous Coward | more than 6 years ago | (#20033413)

The 9th Court's own tool for retriving court decisions includes the same clause they say can't be used:

If these Policies and Procedures change in a significant way, information regarding the changes will be posted on the PACER Service Center web site (pacer.psc.uscourts.gov). It is the acocunt holder's responsibility to check these Policies and Procedures regularly for changes.

https://pacer.psc.uscourts.gov/psco/cgi-bin/regfor m.pl [uscourts.gov]

Update To My Credit Card Policies (4, Funny)

nick_davison (217681) | more than 6 years ago | (#20033429)

Imagine if consumers could pull the same crap with changing contracts, updating terms and expecting the businesses to check online for any updates that businesses pull on consumers.

Henceforth, the customer [Me] doesn't have to make any payments and will face no consequences for doing so. Further, the lender [You] agrees to assume existing and future debts whilst continuing an open line of credit. This was posted somewhere on the net so it's the lender's [your] obligation to check for it.

An agreement to agree is not an agreement (4, Insightful)

Animats (122034) | more than 6 years ago | (#20033873)

This is a sound decision. There's a classic principle of English common law that says "an agreement to agree is not an agreement at all". A contract to agree to terms not yet defined is not an enforceable contract. This is standard contract law.

The actual decision [uscourts.gov] says:

Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side. Indeed, a party can't unilaterally change the terms of a contract; it must obtain the other party's consent before doing so. Union Pac. R.R. v. Chi., Milwaukee, St. Paul & Pac. R.R., 549 F.2d 114, 118 (9th Cir. 1976). This is because a revised contract is merely an offer and does not bind the parties until it is accepted. Matanuska Valley Farmers Cooperating Ass'n v. Monaghan, 188 F.2d 906, 909 (9th Cir. 1951). And generally "an offeree cannot actually assent to an offer unless he knows of its existence." Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts 4:13, at 365 (4th ed. 1990); see also Trimble v. N.Y. Life Ins. Co., 255 N.Y.S. 292, 297 (App. Div. 1932) ("An offer may not be accepted until it is made and brought to the attention of the one accepting."). Even if Douglas's continued use of Talk America's service could be considered assent, such assent can only be inferred after he received proper notice of the proposed changes.

Companies have been trying to get away with something that has no basis in law. Finally, someone sued on that issue, and won.

The Register points out that this is consistent with UK law [theregister.co.uk] . That's not surprising. This goes back to ancient common-law traditions. The Register also points out that the issue of whether terms can be changed when the consumer has an ongoing obligation to the seller (like a cell phone service agreement) has been argued in Britain and decided in favor of consumers.

Beware of Flying Pigs (1)

Nom du Keyboard (633989) | more than 6 years ago | (#20034215)

Wow! The Ninth Circuit finally got something right! And right there in technology's backyard, too!

Microsoft System Builder agreement (1)

Rhalin (791665) | more than 6 years ago | (#20034617)

If I remember correctly (and my memory may be failing here), but MS has used online license agreements for quite awhile with their OEM system builder program for Windows sales, which has enabled them to unilaterally redefine terms such as "oem hardware requirements" from something as small as a stick of RAM to requiring an entire computer, as well as requiring the software be install on the system at time of distribution.

While I understand, partially, this particular move was made mainly to combat sale of pirated copies and the like, it does raise the question of how far they could push it.

Oh, Adobe angered the MS deities today? Maybe MS is trying to make headway with it's PDF replacement. Fine, suddenly the License changes to say windows cannot be included on a computer system that includes Acrobat reader.

Granted, a change like this would probably never hold up, it was just an outlandish example. But it does make one wonder just where the line is.

Hopefully this case will set a better precedent for the future.
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