District Court in Texas Rejects Online Terms of Service

[rattran]

District Court in Texas Rejects Online Terms of Service as Illusory and Unenforceable

SUMMARY: On April 15, 2009, a Texas federal district court held that an arbitration provision in Blockbuster’s online terms of service was “illusory” and unenforceable because Blockbuster had reserved the right to change the terms of service at any time. Harris v. Blockbuster Inc., No. 3:09-cv-217-M (N.D. Tex. April 15, 2009). If followed by other courts, the Harris decision could have significant implications not only for website operators, but also for any company that wishes to retain the right to modify its standard terms for existing customers.

Please see full update for more information.

Could have a bit of an impact for mmog operators.

[schild]

Harris arose out of Blockbuster’s participation in Facebook’s “Beacon” program, through which the movie rental choices of Facebook users were disseminated to such users’ Facebook friends. The plaintiff, Cathryn Harris, claimed that, by participating in the Beacon program, Blockbuster violated the Video Privacy Protection Act, 18 U.S.C. § 2710, which prohibits a videotape service provider from disclosing personally identifiable information about a customer without the customer’s informed, written consent. Blockbuster attempted to invoke an arbitration provision in its standard “Terms and Conditions of Use,” to which Harris had agreed by clicking a box when she registered to use the Blockbuster online service. Harris, however, argued that the arbitration provision was unenforceable because it was illusory.

Oh man. Time to start suing people JUST FOR FUN.

[Dtrain]

Seriously though, this is Texas. It's not like the rest of the US even respects us, much less listens to the crazy court type talkin's we make.

Have you ever been to a Luby's?

[Goreschach]

At most, this would end up with MMO's in general moving to a 'click the TOS every time you log in' program, ala WAR.

[tkinnun0]

Not surprised about the decision. The idea that a service provider can make onerous changes to their contract without advance warning and then deny the service immediately without a refund if those changes are not accepted is something I would imagine any court to frown upon.

[jakonovski]

Seems inevitable, unless you want to make ToS equal "by agreeing to this ToS you agree to whatever arbitrary crap we might decide pull out of our arse."

[jakonovski]

At most, this would end up with MMO's in general moving to a 'click the TOS every time you log in' program, ala WAR.

I thought that was a bug.

[Xanthippe]

How many people read the TOS before clicking agree?

I bet most people don't even read their mortgage papers.

[eldaec]

At most, this would end up with MMO's in general moving to a 'click the TOS every time you log in' program, ala WAR.

I thought that was a bug.

It is, but that doesn't mean it is isn't teh futuar.

[gryeyes]

Paypal was called out on similar practices (multiple times) yet they still retain the ability to be complete douches. I don't see this changing much.

[sinij]

I really don't see relevance of online ToS when it was intentionally obfuscated with legal lingo and 20+ pages of irrelevant drivel.  Typical citizen has no way to understand or opt out of ToS.


I see enforceable ToS will be something along the lines:

By proceeding you agree:

1. Do not share this product with others, or make it available for copying
2. Do not make money off it

If you don't agree you can receive refund by calling 1-800-... with your product key.

[Rendakor]

The way Paypal gets around this is, they send you an email every time they change the ToS. That email requires you to login to your account and accept the new ToS. IIRC they even include a summary of the changes.

[gryeyes]

The way Paypal gets around this is, they send you an email every time they change the ToS. That email requires you to login to your account and accept the new ToS. IIRC they even include a summary of the changes.

That is a new addition when i used paypal they had already had their ToS challenged multiple times and they didn't send out emails. I do want to say i recall having to reaffirm the ToS towards the end. A bunch of stipulations in paypals ToS have been challenged. How some of the stuff they have gotten away with and not been shutdown is beyond me. I assume that the laws regarding their type of service really aren't well developed. Some of the shit i had to do to get those cocksuckers to give me my money would amaze. Never use paypal other than with a CC. And if receiving funds dont mail a product until that money hits your bank. And NEVER use the fast validation method for a bank account.

[Bunk]

How many people read the TOS before clicking agree?

I bet most people don't even read their mortgage papers.

Lol, I deal with Realtors on a daily basis that admit that they agreed to our online ToS without reading it. Then they get mad when I try to enforce it.

This does look like a case however of Blockbuster trying to get around very reasonble privacy issues by making stealth changes to their ToS. I'd be pissed off too if all my rental selections suddenly showed up on my Facebook.

[Morfiend]

How many people read the TOS before clicking agree?

I bet most people don't even read their mortgage papers.

Lol, I deal with Realtors on a daily basis that admit that they agreed to our online ToS without reading it. Then they get mad when I try to enforce it.

This does look like a case however of Blockbuster trying to get around very reasonble privacy issues by making stealth changes to their ToS. I'd be pissed off too if all my rental selections suddenly showed up on my Facebook.

Stop renting Hentai and you wont be upset. 

[jakonovski]

Stop renting Hentai and you wont be upset. 

That's totally true. An upstanding citizen with nothing to hide also has nothing to fear.

[Viin]

Stop renting Hentai and you wont be upset. 

That's totally true. An upstanding citizen with nothing to hide also has nothing to fear.

Irrelevant.

[UnSub]

Stop renting Hentai and you wont be upset. 

That's totally true. An upstanding citizen with nothing to hide also has nothing to fear.

I rented "Maid in Manhattan" 47 times for my wife, honest!