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Court Rules Website Terms of Service Agreement Completely Invalid 148

Posted by Soulskill
from the by-reading-this-you-agree-buy-me-lunch dept.
another random user sends this excerpt from Business Insider: "In January, hackers got hold of 24 million Zappos customers' email addresses and other personal information. Some of those customers have been suing Zappos, an online shoes and clothing retailer that's owned by Amazon.com. Zappos wants the matter to go into arbitration, citing its terms of service. The problem: A federal court just ruled that agreement completely invalid. So Zappos will have to go to court—or more likely settle to avoid those legal costs. Here's how Zappos screwed up, according to Eric Goldman, a law professor and director of Santa Clara University's High Tech Law Institute: It put a link to its terms of service on its website, but didn't force customers to click through to it."
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Court Rules Website Terms of Service Agreement Completely Invalid

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  • Changes incoming (Score:5, Interesting)

    by Twintop (579924) <david@twintop-tahoe.com> on Wednesday October 31, 2012 @05:18PM (#41835351) Homepage Journal

    You can bet the farm that because of this all major online retailers have already started work to change their registration and ordering systems to implement a clickthrough rather than ticking a checkbox that says 'I agree'.

    • by tambo (310170) on Wednesday October 31, 2012 @05:41PM (#41835619)
      > You can bet the farm that because of this all major online retailers have already started work to change their registration and ordering systems to implement a clickthrough rather than ticking a checkbox that says 'I agree'.

      Ah, but many of those ToS'es include terms that are supposed to apply to activities that don't require registration or ordering - e.g., ToS restrictions on copying content to another site, linking to the site without permission, or suing the company due to information presented on the website.

      So, coming next: Visitng ANY major site, even anonymously, will present you with a click-through ToS before you get ANYTHING from them. And to ensure that it remains legal and binding (especially as ToS frequently change), the selection will not be persisted in a cookie; you'll have to complete the ToS click-through at the start of every new session with the website.

      Ugh. The web is about to become uglier.

    • Re:Changes incoming (Score:5, Interesting)

      by Tough Love (215404) on Wednesday October 31, 2012 @05:44PM (#41835673)

      You can bet the farm that because of this all major online retailers have already started work to change their registration and ordering systems to implement a clickthrough rather than ticking a checkbox that says 'I agree'.

      Yes, piling idiocy on top of idiocy and making the Web a yet more unpleasant place to go about your business. The real problem is the idiodic culture of forcing web users to sign away their firstborn or whatever other terms suit the fancy of the online operator, in order to use their service. Do I have to sign a terms of service to buy groceries at a grocery store? No? Then what is this idiocy about needing to sign agreements in order to transact simple business on the web? Are the courts too lazy to start ruling on what is and is not fair, as has been the tradition for several hundred years of common law? (Rhetorical question of course.) Instead, the courts seem determined to make life as unpleasant as possible for average citizens, and they seize on this new internet thing as a marvelous new tool for achieving that. I say it's time to start replacing judges.

      • Re:Changes incoming (Score:5, Interesting)

        by Jafafa Hots (580169) on Wednesday October 31, 2012 @08:50PM (#41837263) Homepage Journal

        I dunno... when I let my hair grow long as I do at times, suddenly every store I go into has a "long-standing policy" that I never seemed to notice before that allows them to demand that I leave my $150 backpack with them (with no insurance against theft, etc.) if I want the privilege of buying their stuff.

        If I dress differently or have short hair, the stores don't seem to have that policy so much.

        It's getting to the point where even brick and mortar stores consider it a privilege for you to be able to shop there.

        You only get the advertised sale price if you use their "club card" which has your personal identifying information plus now your spending habits, etc.

        Let's not even get started on places like Costco that charge you admission to get in to buy a tray of muffins.

        It's not that the balance has shifted - the balance has been dismantled, removed and sold for scrap.

        • by smellotron (1039250) on Wednesday October 31, 2012 @10:16PM (#41837785)

          You only get the advertised sale price if you use their "club card" which has your personal identifying information plus now your spending habits, etc.

          Whenever I signed up for a club card, it was pretty clear to me that I was receiving a discount in payment for my spending profile. With Costco or other "membership-only" stores, this is built in; and the membership fee is a straightforward economic decision (do your marginal savings relative to a non-membership big box store outweigh the membership cost?) In either case, I am being compensated for the harvesting of my information, and there is no personal risk involved. What's being presented in the article—forced binding arbitration in lieu of actual legal recourse—is an entirely different situation, because it amounts to a risk transfer (company reduces legal costs, customers who are "wronged" lose the recourse to recover losses). It's very one-sided, and I find it unbelievable that the judicial system would go along with this idea.

          • Re:Changes incoming (Score:4, Informative)

            by danomac (1032160) on Wednesday October 31, 2012 @11:23PM (#41838345)

            In the case of Costco, buying with the membership card has other benefits. Twice I received a call from them because something was being recalled. I would not have known if I had bought those items elsewhere...

            • Out of curiosity: what did they recall?

              Just trying to estimate how much would I care about a recall of that.

              • by danomac (1032160)

                One was a package of meat - they'd found metal shavings in it and were suspecting a machine problem, so they were recalling all meat bought within a 3 day window of the pack date, I can't remember exactly what the other was, but I do remember it involved a safety mechanism failing (the device would not turn off.) I think it was a tool, but I can't remember what...

          • The problem is that stores introduce these cards as substitutes for their weekly ads and paper coupons. They also tend to vastly inflate prices for items bought without the card from what they had been before.

            So actually you aren't gaining anything. The store now still has the same prices as before the card (or even typically HIGHER ob average) but you have to give up your personal information to get the price you USED to be able to get with a paper coupon.

            You haven't gained in this change, you've lost.

        • suddenly every store I go into has a "long-standing policy" that I never seemed to notice before that allows them to demand that I leave my $150 backpack with them (with no insurance against theft, etc.) if I want the privilege of buying their stuff

          I've only seen this behaviour in one shop, and it was in the USA. My reaction was to politely tell them that if they are going to behave in an offensive manner (i.e. accusing me of shoplifting as soon as I walk in the door) then I have no intention of doing business with them and leave. If you go into such a shop and buy things, then you're just encouraging this kind of behaviour.

          • That actually is what I do.

            Problem is that now I have a lot of stores I can't shop in because of how they treated me.

            Just look at the comments, people saying "it's a private business, they can do what they want, stop crying" etc. THAT is the prevailing attitude here in the US.

            We aren't smart here, and we have only ad-supprted TV and radio here, so corporations have successfully convinced a majority of the population into stridently, adamantly supporting corporate attacks on their own personal rights and fre

        • Get a nice fedora and stuff your long hair under it. Then tip your hat as you make your way to the checkout. Or coordinate with a friend who has a backpack too, so when you leave he's coming in and getting stopped, and you tip your hat and drop your hair.
      • Re: (Score:2, Interesting)

        Are the courts too lazy to start ruling on what is and is not fair

        Who said life was fair? Who said the law is supposed to be fair? Show me SOMETHING to back it up
        • Who said life was fair? Who said the law is supposed to be fair?

          Life, without human artifice, is not fair. Law is a form of artifice we apply to life in to, in part, make it less unfair. In a democracy, the people say that law is supposed to be fair; in non-democratic systems, the more unfair the laws, the greater the possibility of violent revolution, so indirectly the people say that law is supposed to be fair.

          • What is fair to the majority is still unfair to the minority. The spread isn't always 99%/1%. It could easily be 51%/49%. Fairness is subjective, which is why life isn't fair, UNLESS you are the one who makes the rules.
      • by mcgrew (92797) *

        Do I have to sign a terms of service to buy groceries at a grocery store?

        That's one reason I won't buy ANYTHING online unless I have little or no other choice. When I order computer parts from California, I'll first look at the web site, then call them over the phone to prder the parts, and pay with a paper check when the goods are delivered.

    • by benfrog (883020)

      You can bet the farm that because of this all major online retailers have already started work to change their registration and ordering systems to implement a clickthrough rather than ticking a checkbox that says 'I agree'.

      From reading the article linked to [ericgoldman.org] in tfa, a checkbox would work. Zappos's problem is that they just buried a link to the tos at the bottom left-hand corner of the page where no sane user would click.

    • by jklovanc (1603149)

      I looked at the registration page for Zappos [zappos.com]. It doesn't even have a "I have read and agreed to the terms of service" check box. It would seem to me that any personal info would only be related to the people registered so the registration page should have had this box.

    • by Tenareth (17013)

      This was proven years ago, which is why games force you to select the new TOS whenever they change them by explicitly accepting them. It was common knowledge it was unenforceable unless you forced them to read it but they decided to ignore this fact. I ran a large website 12 years ago and we had to change it so they were forced to accept the ToS, and it couldn't be the default (if they could just hit enter, still invalid).

      Yes, they will change it, but this isn't new and this ruling just supports the same re

    • Looking forward to clicking on "I don't agree" on a whole bunch of crappy sites I occasionally use.
  • by Derek Pomery (2028) on Wednesday October 31, 2012 @05:20PM (#41835379)

    That the judge found improper.

    So. Not only a contract they wanted to make binding without any user agreement, but also a contract where the language could be rewritten after you agreed to it, without having to sign off on the new language.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      This is overdue. We've got to make it criminal fraud to make anything that sounds like a contract, but claims the 'contract' can be altered afterwards without your agreement.

      Sounds like a big flyswatter, but making it criminal unleashes the shark lawyers to go after it while dragging the cops in their wake. It's the only way to get balance against the power of corporations to keep pulling this bullshit on individuals. And the crap will vanish overnight, so it's not like it'll plug up our court system.

      • by dgatwood (11270)

        Except that in most cases, the contract is not being altered. It is being terminated, and a new contract is being added in its place, which you must agree to if you want to continue using the service. As long as the original contract did not imply that your right to use the service was permanent, there's really no difference between an Internet service changing their terms of service and a skating rink adding additional rules that people have to follow while skating. If the rules don't apply retroactive

  • Stupid. (Score:5, Insightful)

    by multiben (1916126) on Wednesday October 31, 2012 @05:22PM (#41835399)
    The whole TOS crap needs to change. If Zappos had forced people through the TOS page not one single extra person would have read it. It's just an arse covering law with no benefit to customers or vendors.
    • Re: (Score:2, Informative)

      by Anonymous Coward

      Mod parent up please, this is what it is really about.

      Where I live, one cannot lose legal rights by a contract (such as losing the right to go to court) and a contract which contains illegal things is automatically void. I am surprised that in the US a contract/ToS/EULA can take away such rights.

      • Re: (Score:3, Informative)

        by SomePgmr (2021234)

        You'd be confusing right to trial by jury in a criminal case with civil suits.

        People do often agree in contracts ahead-of-time to settle any future disputes by way of binding arbitration.

        • by hairyfeet (841228)

          And...WHY is this bad exactly? I've had friends and relatives go through arbitration and frankly the corps ended up settling for MORE than they asked for and was QUICKER than going to court. The kinds of things we see end up in arbitration are things that would be small claims court stuff and in those penny ante cases frankly the corps are a hell of a lot more likely to just give you the money and tell you to go away, you really aren't worth the effort or their law team's time.

          So I don't see why arbitrati

          • And...WHY is this bad exactly? I've had friends and relatives go through arbitration and frankly the corps ended up settling for MORE than they asked for and was QUICKER than going to court.

            Arbitration can be great in many cases, as you point out.

            The most important thing that is bad about arbitration is when things get hidden in private arbitration proceedings that should have been brought in a public class-action lawsuit.

            Extreme example: someone gets severely injured or even killed because of the action of some corporation (bad product design, improper service, whatever). There doesn't seem to be any criminal intent or liability, so the matter doesn't make headlines and there's no public

            • by hairyfeet (841228)
              Except they'll either settle and seal or in some cases even managed to appeal and seal, thus you get no more info from a public trial anymore than from arbitration and of course with local papers not wanting to bite the hand that buys ads they sure as shit isn't gonna be writing stories about it...lets face it, if a corrupt corp wants to cover shit up in THIS country? they'll have the courts not only helping them, but bending over backwards to do so.
          • by Mitreya (579078)

            And...WHY is this bad exactly? I've had friends and relatives go through arbitration and frankly the corps ended up settling for MORE than they asked for

            One reason -- arbitration is not a service provided by magical fairies. Arbitrators are both chosen by and paid for by the corporation. If that's not a problem, then I don't know what is. How can a glaring conflict of interest NOT be a problem?

            Your single data point notwithstanding, arbitrators that rule in favor of the plaintiff too often get replaced by other arbitrators. Maybe your friends/relatives that got "more then they asked for" were the last business that their particular arbitrator ever got.

      • Re:Stupid. (Score:4, Informative)

        by niado (1650369) on Wednesday October 31, 2012 @05:53PM (#41835785)

        Where I live, one cannot lose legal rights by a contract (such as losing the right to go to court) and a contract which contains illegal things is automatically void. I am surprised that in the US a contract/ToS/EULA can take away such rights.

        In the US, this varies by state. Some states have pretty strong specifics as to what can be agreed upon in contracts. US contract law [wikipedia.org] is pretty complex.

        We do have the doctrine of unconscionability [wikipedia.org], used in cases of inequal bargaining power [wikipedia.org]. Ref. this commonly studied case [wikipedia.org].

    • Re: (Score:3, Informative)

      by ShanghaiBill (739463)

      It's just an arse covering law with no benefit to customers or vendors.

      But it does benefit lawyers. Lawyers hate arbitration because you don't need a lawyer to arbitrate. You also cannot do "class action" arbitration. Lawyers love class action suits because pretty much all the damages go directly to them, with the customers just getting a coupon for half off their next purchase from the company the screwed them.

      • Re:Stupid. (Score:5, Informative)

        by debrain (29228) on Wednesday October 31, 2012 @08:43PM (#41837217) Journal

        But it does benefit lawyers. Lawyers hate arbitration because you don't need a lawyer to arbitrate. Lawyers love class action suits because pretty much all the damages go directly to them, with the customers just getting a coupon for half off their next purchase from the company the screwed them.

        This is nonsense. I've been a lawyer, arbitrator and class action litigator for nearly a decade now.

        Let's break down your post.

        First, lawyers do fine with or without arbitration clauses; I honestly don't care what the process is. Arbitration clauses do tend to increase the cost of litigation to individual litigants for several reasons, including:

        1. Arbitrations are private; a finding of liability has no impact on subsequent cases, unlike a finding in Court;

        2. Arbitration is generally more expensive than litigation, for several reasons including the obligation of the complainant to pay the arbitrator fees, contrary judges who are paid by taxpayers;

        3. Arbitrations, except for the rare multi-party arbitrations, do not permit the resolution of common issues for all similarly situated litigants, unlike class actions.

        All of the above discourage litigation against big, bad clients because the big bad clients increase the cost and risk of seeking compensation for wrongs. I have noted a trend across jurisdictions that those where the perceived costs of seeking compensation for wrongs is subject to high procedural barriers correlates with the pervasiveness of apathy and helplessness.

        Class proceedings reduce (and often eliminate) risk to individual litigants.

        As for class arbitration, the rules of arbitration generally do not permit class proceedings. However, there is nothing stopping individuals from agreeing to individual arbitrations heard and determined concurrently by way of contract. A properly crafted agreement would likely be as binding as an award from individual arbitration, and have many of the economies of scale inherent to class proceedings. This is rare because it would require the consent of a defendant, who has every financial (and public relations) incentive to increase the cost of and risk to every claimant.

        As for lawyers receiving most of the damages, that is an entire topic to itself. Class proceedings exist for three purposes: (1) decrease the cost of individual litigation; (2) increase efficiency of the court system by determining common issues together; and (3) correct bad behaviour. On point one, it is almost always true, in my experience, that class proceedings are more cost effective than individual litigation --- you are almost certainly going to get more at the end of the day by being a member of a class proceeding than by hiring a lawyer to proceed on your behalf directly. All class proceedings in the world, as far as I know, give you the opportunity to opt out of the class and pursue your litigation on your own, in any case, so if you are quite so against the class proceeding benefitting the lawyers, you can bring pursue the litigation by yourself. It bears mentioning that many class proceedings are also highly speculative, and higher risk merits higher rewards - otherwise the competent lawyers would find something else to do with their time and many valid complaints would pass under the radar.

        On the second point, arbitrations are typically significantly more expensive than litigation in court. You have to pay the arbitrator and due to the faster timelines it often proceeds to an actual determination more often, in my experience, than litigation (as litigation is often painfully slow and settlement is encouraged by way of process designed to be challenging and expensive - to encourage settlement).

        Finally, correction of bad behaviour is a worthwhile goal in and of itself, and even if the lawyers achieved no financial compensation for the members of the class, it is worthwhile to reward those pursuing and advancing corrective behaviour through the adversarial process.

        Which is all to say: Your post is not very well informed, and I would encourage you to bear the above in mind before posting similar nonsense in the future.

    • by SomePgmr (2021234)

      I would absolutely agree, on both counts, but change how?

    • I agree. TOS are stupid.

      But what are those customers hoping to get anyway? Zappos received lots of bad PR because of the breach. How much more do they really want Zappos to suffer because of its incompetence?

      • by multiben (1916126)
        A lot of people are just greedy. If they see a chance to make a buck they don't really stop to question if they really do deserve it. Lawyers (yes, I'm generalising) use this tendency to flood the courts with frivolous cases which often have merit under a strict definition of the law but have nothing to do with the original intention of the law.
    • by hairyfeet (841228)

      Exactly, and why should they? I remember some site figuring up on a new PC install how many damned EULAs and TOS they would have to go through just to get a PC with all the basic websites set up and from actually LOOKING at the EULAs and TOS they determined that anybody not a lawyer well versed in contract law would have to spend something like $32,000 to have a contract lawyer sit down and actually explain these pages of legalese and if one were to go over it with enough detail by yourself to actually unde

  • Bad news (Score:4, Funny)

    by mseeger (40923) on Wednesday October 31, 2012 @05:23PM (#41835401)

    In the future we will have to read those 36 pages of legalese and complete a test on it....

    • by evilviper (135110)

      Hell, that's GOOD NEWS! People will be frustrated when signing up with companies that impose restrictive terms, while having a super-smooth experience with those who do NOT make any attempt to take away your rights. End result: Those who repect their customers get MUCH more business.

  • by Quick Reply (688867) on Wednesday October 31, 2012 @05:37PM (#41835569) Journal

    So their T&Cs is invalid because of a technicality, not because it limits consumer rights.

    There needs to be baseline laws that guarantee a minimum amount of consumer protection, that can't be trumped by T&Cs, as Law > T&Cs.

    Basically, as it stands now, a website could put in T&Cs that gives them the right to kill you and your pets for non-payment of services. Or more realistically, terms for $1,000,000 per day penalty for late payment on an account worth $10,000 in it's total life.

    The excuse that we should settle with "you should have read the T&Cs" is unacceptable, not eveyone does, maybe it is because some people in our community find them too hard to understand or can not afford a lawyer to check it, is too trusting, or whatever the case may be, and it doesnt mean that these people deserve to be taken advantage of.

    We need to look at Australia's consumer laws as a model for the world. These laws are just common sense for what a consumer would expect from a retailer, but put out in law that can't be trumped or rights taken away except in very specific circumstances where there is a fair reason to (not just trying to limit their liability for their own fuck ups) and this waiver has been made crystal clear to them by a requirement to explain this to the consumer until they understand, and sign a standardised form that says in big letters across the top "YOU ARE WAIVING SOME OF YOUR RIGHTS IN THIS TRANSACTION, PLEASE READ CAREFULLY" or to that effect.

    • by tlhIngan (30335)

      So their T&Cs is invalid because of a technicality, not because it limits consumer rights.

      There needs to be baseline laws that guarantee a minimum amount of consumer protection, that can't be trumped by T&Cs, as Law > T&Cs.

      Well, the political climate in the US is far too polarized for that stuff to happen. Introduce new regulations and you have the libertarians and those who advocate laissez-faire capitalism foaming. And the republicans will point to it as a way to destroy small business and

      • by Kalriath (849904)

        Or you could do what the EU does and mandate say, 2 year minimum warranties on durable goods, and at the same time they complain that they are being gouged for their stuff (which really ends up looking normal after import duties, VAT (added to base price), and the cost of an extended warranty - how often do you answer no to "Would you like an extended warranty?").

        I see this mentioned a lot, and it's still completely disingenuous and patently false. Extended warranties go far above and beyond the mandatory protections enforced by law in ... well, pretty much every country that isn't the US actually. With an extended warranty, any failure is covered, and even some accidental damage. However, every implementation of minimum warrantability law I've ever seen requires only that a manufacturer (or retailer or distributor) make right any faults which occur as a result o

    • T&C's exist because bad laws exist, so we give websites the opportunity to get around them.

      Maybe we could just let people learn to be responsible with their information and let the market work like it always does. If a website leaks your information, then don't use it. Why should we have the right to sue them?

      ...and regardless of the size, color, or style of the font, people will still ignore it.

      • by Stiletto (12066)

        Maybe we could just let people learn to be responsible with their information and let the market work like it always does. If a website leaks your information, then don't use it. Why should we have the right to sue them?

        We should have the right to sue them because they were negligent with our personal information.

        If a brick and mortar store writes down my debit card number, and then throws the paper in the trash, where anyone can find and abuse it, shouldn't I be able to sue that store? Why should it be dif

    • by niado (1650369)

      Basically, as it stands now, a website could put in T&Cs that gives them the right to kill you and your pets for non-payment of services. Or more realistically, terms for $1,000,000 per day penalty for late payment on an account worth $10,000 in it's total life.

      No [wikipedia.org], they can't [wikipedia.org] really [wikipedia.org] do that [wikipedia.org].

    • by Anonymous Coward

      "So their T&Cs is invalid because of a technicality, not because it limits consumer rights."

      The fact that there was no meeting of the minds and no manifestation of assent is far from a "technicality". Those two concepts are part of the very foundation that makes up contract law. You can't have a contract unless parties agree to that contract. It's so basic that it's part of the very definition of the word "contract".

      Also, the court explained very clearly how it would violate consumer rights to enforce t

    • by SomePgmr (2021234)

      I think terms like the latter (the former cannot be enforced by contract in the US) might well be considered evidence that there was no consideration and consent. At least, if they're just stuffed in a hidden TOS somewhere and not explicitly spelled out, presented to the user, understood and agreed to by the second party.

      You'll note this particular /. article is about deficiencies exactly like that... where there's reason to believe the user didn't consider and consent to the ToS. So the judge invalidated i

      • by SomePgmr (2021234)

        I should point out that while I've had the usual contract law courses you have to take in college, I am not a lawyer.

        A lot of what we're talking about here reminds me of those stupid, unsolicited, unilateral contracts at the bottom of emails. I usually have to agree to enter into a contract with you... I can't believe those obnoxious things are actually valid. :p

    • by david_thornley (598059) on Wednesday October 31, 2012 @06:16PM (#41835981)

      I don't have the court decision here, but courts like to rule on the technical aspects, if they can, rather than to dig into more subjective issues. Maybe a click-through TOS would have saved them here, maybe not. Maybe the click-through will discourage enough customers so that it's not worthwhile anyway.

      At least in the US, there's a special status for a take-it-or-leave-it contract of this sort, and it isn't as favorable as a written and negotiated contract. The court will look for odious provisions (this is subjective) and throw them out. Either of the penalties you suggest would normally be thrown out. It's not something to count on in all cases, but it will remove particularly bad penalties like those. I'm not fond of US consumer protection laws, such as they are, but they're not really that bad.

    • by hankwang (413283)

      a website could put in T&Cs ... terms for $1,000,000 per day penalty for late payment on an account worth $10,000 in it's total life.

      In 2008, I got an email inviting me to participate in an affiliate network. I was curious, but the T&C indeed had a statement along the lines of "if you generate invalid clicks, as judged solely by us, you will be obliged to pay EUR 50,000 fine". I wonder what would have happened if I had done business with them. As a business-to-business deal, consumer protection law

      • by hankwang (413283)
        Self-reply: the Dutch version actually has a link to the T&C, at http://www.cleafs.nl/publisher-registratie.html [cleafs.nl] :

        Rough translation of section VIII: The publisher is not allowed to [generate artificial traffic]. In case of a violation, the publisher is instantaneously and without warning subject to a fine of EUR 50,000 plus EUR 500 for every additional day of violation.

    • by jklovanc (1603149)

      You have one inalienable right with any merchant, online or brick and mortar; Don't shop there. If the terms of service are not to your liking just walk away. Enough people do that and the terms will change. It is not a defense to say "I didn't read the TOS" just as it is not a defense to say "I didn't know it was illegal".

      They needed a check box on their signup page to deal with TOS acceptance but it is not up to the site to attempt to force people to read. If consumers do not read the TOSit is their choic

  • by leighklotz (192300) on Wednesday October 31, 2012 @05:39PM (#41835597) Homepage

    Email lists are regularly stolen from ecommerce and info sites, as anybody who owns their own domain for email and can give out single-use email addresses knows. I report it every time it happens, and I've only gotten a positive response once, from Walgreen's Photo. Everybody else either fails to answer or points me to their privacy policy (as if that somehow prevented them from having data stolen). My suspicion is that there is a back-door or two in popular mailing-list software that ecommerce sites use; it can't be *that* many corrupt insiders stealing and selling email addresses to have actual human inside involvement.

    • Your faith in humanity is heart-warming, but misplaced. As any business owner will tell you, employees steal anything and everything that's not bolted down. I worked at a place that glued the mice shut to keep the employees from stealing their balls (back in the days when mice had balls).
  • I don't get it.

    Consumers throw their personal information like water balloons at as many websites as they can and then we feel it's somehow the website's fault when they drop one. If you don't want your privacy balloon to pop, hold onto it.

  • by Animats (122034) on Wednesday October 31, 2012 @05:55PM (#41835797) Homepage

    First, three blogs down, here's the actual court order. [scu.edu] It's worth reading. A key point in this decision is what it has to say about agreements which allow one party to change the terms of the agreement. Such agreements were held to be "illusory" and non-binding:

    Here, the Terms of Use gives Zappos the right to change the Terms of Use, including the Arbitration Clause, at any time without notice to the consumer. On one side, the Terms of Use purportedly binds any user of the Zappos.com website to mandatory arbitration. However, if a consumer sought to invoke arbitration pursuant to the Terms of Use, nothing would prevent Zappos from unilaterally changing the Terms and making those changes applicable to that pending dispute if it determined that arbitration was no longer in its interest. In effect, the agreement allows Zappos to hold its customers and users to the promise to arbitrate while reserving its own escape hatch. By the terms of the Terms of Use, Zappos is free at any time to require a consumer to arbitrate and/or litigate anywhere it sees fit, while consumers are required to submit to arbitration in Las Vegas, Nevada. Because the Terms of Use binds consumers to arbitration while leaving Zappos free to litigate or arbitrate wherever it sees fit, there exists no mutuality of obligation. We join those other federal courts that find such arbitration agreements illusory and therefore unenforceable.

    This is an example of the classic "an agreement to agree is not an agreement".

    An example of a site that's now in trouble is WePay. See Paragraph 50 [wepay.com] of the contract.

  • by bcrowell (177657) on Wednesday October 31, 2012 @05:57PM (#41835811) Homepage

    That makes three reasons not to do business with them:

    1. I had an account with them, bought a ton of hiking and running shoes from them over a stretch of time. Made sure not to opt in to any spam. I was very happy with them, told friends about them, etc. Then recently they started sending me spam. Oops. Sorry, but I don't do business with people who spam me.

    2. They botched their security badly enough to have this breach.

    3. They're scummy enough to try to impose a ToS without actually getting the customer to accept it.

    If it was only #2, I wouldn't have cared that much. IIRC they were very up front about it. But #1 is just inexcusable. Large retailers, including Zappos' corporate parent Amazon, all seem to understand this perfectly: if I opt out of spam, they respect that and never spam me. But small businesses are just horrible about this.

    The nastiest example I've ever run into is O'Reilly, the book publisher. I'm a college professor, and I get a lot of spam from textbook publishers. An O'Reilly book rep sent me spam about a textbook they wanted me to use. Later, I posted about this on Slashdot when there was a discussion specifically about O'Reilly. Got an indignant reply posted by Tim O'Reilly accusing me of being a liar and challenging me to post the actual email. I posted a reply explaining that when I get spam, I delete it, so I didn't have a copy. Then it came up again in a different Slashdot thread. Same kind of vituperative reply from Tim O'Reilly, now accusing me of being a troll. How can small businesses be so amazingly clueless about how to address this issue?

  • Both Zappos and several of the claiments are located in Nevada.

    Nevada law says you can't sign your rights away, even if you 'want' to.

    This was done because in the past people were tricked and and pressured into bad deals by organized crime.

    Now that old organized crime tricks have become standard operating procedure for big companies in the US, we need the same law at a national level.

  • by Anonymous Coward

    How is there a meeting of the minds if I just randomly click on the "agree" page until I happen to click on the "agree" button?

  • That all of the other "browsewrap" style agreements we see outside the internet are also invalid? By this I mean items like attraction admission tickets, parking lot receipts and for that matter airline tickets that say things like "acceptance/use of this ticket constitutes agreement with this contract" (such as seen here https://farm3.staticflickr.com/2617/3708171070_cd5418d1e5_b.jpg [staticflickr.com])
  • Disappointing (Score:5, Insightful)

    by RazorSharp (1418697) on Wednesday October 31, 2012 @07:36PM (#41836691)

    I read the headline and got excited. The conclusion is disappointing. The biggest injustice when it comes to contracts, either ToS or not, is the ability to include stipulations that the signee may not engage in a class action suit or that the terms of the contract can be arbitrarily changed. I'm sure someone will argue that one doesn't have to sign any contract if they don't want to, but I don't see how one can function in society without 'agreeing' to outrageous contracts. If I never agreed (downloading software, visiting websites, purchasing something, working somewhere, etc.) to outrageous contracts I'd be forced to live like the Unabomber or worse . . . like Richard Stallman.

    The results of this ruling could potentially just lead to a lot of annoying ToS splash screens when visiting web sites.

  • by MacGyver2210 (1053110) on Wednesday October 31, 2012 @08:17PM (#41837009)

    And there goes Zappos, one of the best online retailers the Internet has to offer. Free shipping, to and from, with free returns if you don't like the color or whatever of the product you order, no limit to how many times you can return or exchange things, no questions asked. Extremely courteous customer service, and a really user-friendly website to order from.

    I'm positive this will continue to be the case after they have to shell out millions to a bunch of fucking morons up in arms about "Ermagherd, I ordered from teh Zappos! Teh haxxors has mah info!!!11oneeleven!"

    Congratulations on being so litigious and fucking petty that you have to SUE THEM for a security breach that probably couldn't have been reasonably avoided(no matter what you may believe, no site is 100% secure), and will likely cause you(the customer) no problems at all. Congratulations on ruining an awesome thing, in the name of "being right" or on "the principle of the thing" - whatever helps your scumbag ass sleep at night.

    Seriously, America. Fuck you. Fuck you all.

  • It's simple, add a ToS to a http request that provides a link to the ToS. Let the browser send back an answer saying that the user accepts the ToS. Depending on the browser settings, it will either show the ToS to the user, or let them implicitly accept it, if the browser finds that it matches a standard ToS template (or the user has accepted it before). It's a win/win we can keep down the annoyances and make it more difficult for companies to include their own special clauses into ToSs that almost noone re

  • So now after the click through advertisment you'll get another click through page for the damn TOS, probably followed by another click through advertisement because why the hell not, before finally getting to the page of content that ends up being useless anyway.

  • If memory serves, precedent was set for this about ten years ago with the Netscape "click wrap" agreements.

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