this post was submitted on 03 Mar 2024
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IANAL, and not that it really makes this bullshit any better but...
It's unlikely that agreeing to terms of service that claim you waive rights to any class action lawsuit would actually hold up as legally binding in court. Many of these agreements aren't reply binding are already legally gray... Plus, universally vaguely signing your legal rights away in any contract doesn't hold any water either.
I highly doubt you'd actually lose any rights to a check box that's bound to "you can't ever sue us".
IANAL either, but I'm pretty sure you are correct. I put it in another comment somewhere, but I'm more upset about not being given a choice to refuse the change rather than the actual change itself. I don't mind signing the waiver at amusement parks, or to buy a car with no warranty. I just want to know what I'm agreeing to, and I don't like folks pulling the rug out from under me or changing the deal.
The situation feels like if I were to drop out of college, I would be given electroshocks until I'd forgotten anything learned in class.
IANAL either, but from my understanding of contract law, not only are terms waiving your rights not legal, a contract necessarily entails mutual agreement followed by an exchange of a thing of value. In this case, they are holding a thing that you own (which they made and designed to work in this manner no less) hostage until you agree.
I don't think that counts as an "exchange of a thing of value". There's no exchange there, so it doesn't even qualify as a contract. Even if they're supposedly adding features along with the update, if you didn't agree to the features being added then that can't be considered forming a contract either. Also it's not free agreement on your part, so it fails on a number of levels.
In fact this behaviour sounds like it's arguably illegal to me. It could even be the subject of a class action lawsuit. I imagine the courts would be especially unfavourable to the idea that they were doing this specifically to ask you to waive your right to do so.
IANAL either, but my understanding ends at the first letter in IANAL and all it means to me is that you do anal
From the start of your comment it sounds like it's mutual ¯\_(ツ)_/¯
However I appreciate your feedback and from now on I will make it clearer that I ANAL.
The legal term is "consideration". To form a contract you must have three elements: Offer, consideration, and acceptance.
Unfortunately, I'm not sure it would help here. They would argue their consideration is whatever online services are tied to the product, but even without that, the contract isn't being formed at this point (unless someone is going through first setup, at which point they can still return it). The contract was already formed and this is an amendment to those terms that the original wording likely has weasel words to permit.
That's not to say the consumer has no recourse, consumer rights are probably the best bet. If the previous terms don't expressly grant them the right to take away access to all features in circumstances like this, it may be possible to find them in breach, but unfortunately EULAs are usually pretty toothless when it comes to penalising the vendor.
I would like to know how much of this has been tested in court, and how much has just been insinuated by the sheer volume of corporate lawyers insisting that they're allowed to pull this crap. Because you can just write any old junk down, but lawyers don't make the law.
Like, on the basic level of what a contract is, how can one party reserve the right to unilaterally change the terms? How can an EULA be binding when the exchange has already happened and no agreement was made except the delivery of a product? How can consideration be forced on one party while their property is held ransom? And esepcially how can a fundamental legal right be waived in such a manner?
If this happened in any other sphere it would be understood as some kind of vandalism, theft extortion, or something. Like your builder just shows up one day, "Hey, I installed a new sink in your kitchen! You can't use your house until you agree I'm not liable for anything that happens to your house from this point forward. No, you can't read it, just sign it. This is a real contract because I gave you something of value." I suspect this isn't happening because it's perfectly legal, but because the internet of things hasn't matured enough to have strong legal precedents established and there hasn't yet been a big public backlash against it.
I think the more they try to pull this garbage the more people will start to realise that this is bullshit and do something about it.
"How can one party reserve the right to unilaterally change the terms?"
When it comes to business to consumer contracts, often they can't, due to "unfair terms" clauses in a lot of consumer protection laws.
In this specific case, the fact you can opt-out retrospectively (and inconveniently of course) is certainly due to those laws.
But like you say, it needs to be tested.
Yeah, I totally agree with you, don't get me wrong. I think it's bullshit to switch terms. And also bullshit to write terms that just say "if we fuck you over, you can't do anything about it".
I just wanted to point out that the legality of it probably wouldn't hold any actual water so don't be totally paranoid about it and take it with a grain of salt. For anyone who's a little more torn.
But yeah, Idk that I'd keep the device at that point either.
Oh, I am definitely getting more paranoid as I get older, but that's a different issue altogether. :D
Could the agreement not force OP to use arbitration if they wanted to sue, making it economically infeasible to do so themselves?
Pretty much all arbitration clauses require the manufacturer to pay for the arbitration. That's the consideration offered by the manufacturer to get the customer to waive their rights to sue.
It's actuaoworked out well for me I the past, because once you start going down the arbitration path, they're more likely to just give you what you want since that'll be cheaper than the arbiter in the end win or lose.
And as Elon found out, mandatory arbitration clauses can come back to bite you, like when a large number of claims have to be paid for separately all at once and can't be consolidated to save costs.
It's like the waivers at skihills etc. Lots of stuff not legal, but it gives then deleting to waste your time and money on and the can afford the lawyers better than you can