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Court Rules Website Terms of Service Agreement Completely Invalid

Soulskill posted more than 2 years ago | from the by-reading-this-you-agree-buy-me-lunch dept.

The Internet 148

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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Landmark case (-1)

Anonymous Coward | more than 2 years ago | (#41835327)

I pooped in my pants. LOL

Changes incoming (4, Interesting)

Twintop (579924) | more than 2 years ago | (#41835351)

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'.

Re:Changes incoming (4, Insightful)

tambo (310170) | more than 2 years ago | (#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 (0)

Anonymous Coward | more than 2 years ago | (#41835899)

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.

Kill the effing lawyers and this won't happen. All this has done is add more overhead to the cost of doing business.
 
Congratulations lawyers, I'll bet your mommies are real proud of you.

Re:Changes incoming (4, Insightful)

jhoegl (638955) | more than 2 years ago | (#41836037)

Despite the fact that FORCED ARBITRATION is one sided and Bull shit...
Yeah.. blame the lawyers not the law makers.

Re:Changes incoming (4, Insightful)

iamnobody2 (859379) | more than 2 years ago | (#41836143)

aren't most of the law makers and judges also lawyers?

Re:Changes incoming (4, Insightful)

Jessified (1150003) | more than 2 years ago | (#41836261)

That's why it's non-enforceable in many parts of Canada.

Re:Changes incoming (0)

Greyfox (87712) | more than 2 years ago | (#41836767)

You could always choose not to use their service...

Re:Changes incoming (2)

ciscoguy01 (635963) | more than 2 years ago | (#41838879)

Uh, not really. I was presented with a clickable forced arbitration last week by Microsoft, for the Xbox network. I could agree or not use the service, which would essentially mean my 2 Xbox 360s, all the games, all the optional hardware would become nearly worthless. Not an option for me.
Congress should just make those forced arbitration agreements illegal.

Re:Changes incoming (0)

Anonymous Coward | more than 2 years ago | (#41836785)

Not necessarily...just went through it. Both sides hired lawyers anyways, the big company that required customers to agree to arbitration lost.

Re:Changes incoming (-1)

Anonymous Coward | more than 2 years ago | (#41836915)

FORCED ARBITRATION

You should go to the mainstream media and find someone willing to help you tell your story. About how you were forced to buy shoes from Zappos, and what they threatened to do to your family if you shopped somewhere else. It would be nice, though, if you could just summarize that tale here, so we can understand how they deprived you of obtaining shoes by any other means. It must be a really frightening story.

Or, a completely BS meme that you really should just stop. Please. Just stop.

Re:Changes incoming (1)

Anonymous Coward | more than 2 years ago | (#41837651)

Oh yes because there's so many companies that don't have forced arbitration provisions. Look everyone it's the free-market fairies coming to fix everything. If only everyone just believed hard enough.

Re:Changes incoming (0)

Anonymous Coward | more than 2 years ago | (#41837577)

Not necessarily. Sites might decide that the business loss due to an annoying click-through ToS is greater than the cost of not having a ToS, and ditch the ToS altogether.

Re:Changes incoming (4, Interesting)

Tough Love (215404) | more than 2 years ago | (#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 (4, Interesting)

Jafafa Hots (580169) | more than 2 years ago | (#41837263)

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.

Re:Changes incoming (5, Insightful)

smellotron (1039250) | more than 2 years ago | (#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 (3, Informative)

danomac (1032160) | more than 2 years ago | (#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...

Re:Changes incoming (0)

pete6677 (681676) | more than 2 years ago | (#41837995)

Its a private business; you don't have to go there and they don't have to serve you. Boo hoo, life is unfair.

Re:Changes incoming (1)

TobinLathrop (551137) | more than 2 years ago | (#41838969)

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.

You could do what I do, find one on the street and use it. Oh sure I don't get the gas bonus from QFC but they get crap for their data. Also a lot of cashiers are happy to hand you a card and throw away the information sheet. So yes you get tracked but as anonymous coward basically.

Re:Changes incoming (-1)

Anonymous Coward | more than 2 years ago | (#41839039)

I figured this out years ago, cut my hair, and grew the fuck up.

Re:Changes incoming (1, Interesting)

TheRealMindChild (743925) | more than 2 years ago | (#41837681)

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

Re:Changes incoming (2)

Mr. Slippery (47854) | more than 2 years ago | (#41837733)

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.

Re:Changes incoming (2)

TheRealMindChild (743925) | more than 2 years ago | (#41838061)

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.

Re:Changes incoming (1)

Anonymous Coward | more than 2 years ago | (#41838271)

It's probably a mixture of grocery stores, e.g., operating in a relatively settled area of law that has existed for centuries. If I were an online retailer, I'd be scared as hell about a judge not treating e-tail like brick and mortar stores vis a vis data security or something.

Re:Changes incoming (2)

benfrog (883020) | more than 2 years ago | (#41835799)

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.

Re:Changes incoming (1)

noh8rz9 (2716595) | more than 2 years ago | (#41836341)

in soviet russia, the checkbox ticks YOU!

Re:Changes incoming (1)

jklovanc (1603149) | more than 2 years ago | (#41837569)

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.

Next up... a Quiz based on small print... (0)

Anonymous Coward | more than 2 years ago | (#41835355)

Why not force folks to read the small print by having a short quiz (perhaps multiple choice) that ``ensures they read AND UNDERSTOOD the material''?

Re:Next up... a Quiz based on small print... (2)

CanHasDIY (1672858) | more than 2 years ago | (#41835441)

Why not force folks to read the small print by having a short quiz (perhaps multiple choice) that ``ensures they read AND UNDERSTOOD the material''?

You just answered your own question - if users understood these terms of service contracts, they would likely not agree to enter them.

Re:Next up... a Quiz based on small print... (2)

SomePgmr (2021234) | more than 2 years ago | (#41835497)

I think everyone has a pretty good idea of how ridiculous these things are, despite the fact that they don't read them.

On one side you've got, "Yeah, yeah... you own my first born, now let me at the stuff I want!"

On the other you've got, "Make sure we've covered everything except ownership of their first born... people are assholes and sue over everything."

Re:Next up... a Quiz based on small print... (5, Interesting)

Hatta (162192) | more than 2 years ago | (#41835807)

Great idea. Can we get Congress to undergo the same when they vote on a bill too?

Re:Next up... a Quiz based on small print... (1)

crafty.munchkin (1220528) | more than 2 years ago | (#41836811)

Quite possibly one of the best ideas I've ever read on Slashdot!!! :)

and then you will need to be a lawyer to under sta (1)

Joe_Dragon (2206452) | more than 2 years ago | (#41836899)

and then you will need to be a lawyer to under stand what the material is.

Uh-oh. (0)

Anonymous Coward | more than 2 years ago | (#41835361)

Going to have to buy another judge.

Don't worry, we'll find one that's not too expensive.

Was also their "we can change this contract at wil (4, Interesting)

Derek Pomery (2028) | more than 2 years ago | (#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:Was also their "we can change this contract at (2, Insightful)

Anonymous Coward | more than 2 years ago | (#41835633)

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.

Stupid. (5, Insightful)

multiben (1916126) | more than 2 years ago | (#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:Stupid. (2, Informative)

Anonymous Coward | more than 2 years ago | (#41835533)

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:Stupid. (2, Informative)

SomePgmr (2021234) | more than 2 years ago | (#41835753)

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.

Re:Stupid. (2)

hairyfeet (841228) | more than 2 years ago | (#41836609)

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 arbitration would be a bad thing in these kinds of cases frankly our courts are overloaded and from talking to those that went through arbitration they tend to lean even MORE pro consumer as they don't want it to look unfair and end up having to go to court.

Re:Stupid. (2)

AthanasiusKircher (1333179) | more than 2 years ago | (#41838171)

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 accountability for the corporation.

A lawsuit could be filed for damages, cost for treating injuries, or wrongful death. A public trial would put all the information about this case on public record, as well as potentially bringing attention to the issue.

Forced private arbitration often can lead to a quicker settlement instead, and companies are often very happy to pay up and get rid of the "problem."

If this is a single case of the issue, no big deal. But what if dozens or hundreds or thousands of people have been injured by the same problem? Maybe only a fraction of them even come forward to try to force arbitration and get a settlement. No public records are kept of information about the company, so every person is on their own in trying to prove an issue in arbitration.

In such a case, it might be cheaper for the company to keep paying off a few people who actually manage to get to arbitration and manage to prove something, rather than to fix the problem.

On the other hand, lawsuits and particularly trials leave a public record. If the first lawsuit doesn't succeed, the second or third might, by drawing on evidence dug up in previous actions. People might begin to see patterns and even lead to a class-action suit. In any case, with a pervasive problem where many individuals have been injured, there's a better chance of forcing the company to change when there's at least the option of a lawsuit and trial.

Re:Stupid. (2)

hairyfeet (841228) | more than 2 years ago | (#41839255)

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.

Re:Stupid. (1)

Anonymous Coward | more than 2 years ago | (#41838385)

The big, glaring problem with binding arbitration in consumer cases is that almost all of them specify a geographic location for conducting arbitration. So a NJ resident has to attend arbitration hearings in CA. If the arbitration clause weren't in the contract, the NJ resident could sue in NJ court.

Disclosure: I am a corporate lawyer (general counsel of a tech company, in fact). We use arbitration to minimize costs to us more than anything. We aren't out to screw the customer—they give us money! We are trying to minimize risks to our company, and being sued away from our corporate office is a financial burden (albeit less of a burden to us than to an individual who has to fly across the country).

Arbitration is much faster and cheaper than going to trial. It's also more predictable because there's far less chance of an emotional plea to the fact finder (in trial, mostly juries). We also like having people waive their right to jury trial because juries get whipped up emotionally. It's important to us to be able to estimate our odds of winning at trial and thus calculate expected value of court vs settlement. At no point do we set out to screw a customer. We just say "here are the terms under which we are willing to bear risks and transact with you, the customer. If the clauses were different, the risk profile would be different, the pricing structure would be different, and you'd have to pay more for our product to make the increased risk exposure worth it.

Good corporate lawyers don't just rub our hands together, plotting how to shit on customers. Good corporate lawyers can determine risk exposure and use calculated language to balance risk exposure with sales and such.

Re:Stupid. (3, Informative)

niado (1650369) | more than 2 years ago | (#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:Stupid. (2, Informative)

ShanghaiBill (739463) | more than 2 years ago | (#41835681)

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. (5, Informative)

debrain (29228) | more than 2 years ago | (#41837217)

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.

Re:Stupid. (-1, Troll)

TheRealMindChild (743925) | more than 2 years ago | (#41837731)

You've *been* a lawyer? Not a very good one, I imagine. For a lawyer, there seems to be a blanket over your eyes that no lawyer I know has. Let us start:

First, lawyers do fine with or without arbitration clauses

Really? Every lawyer I know is as broke as the rest of us, still trying to pay for law school 10+ years after graduating

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

That is a lie, or gross misrepresentation. Arbitration is almost always paid for by the defendant, who wishes to go through arbitration, because a civil suit is generally devastating.

As for lawyers receiving most of the damages, that is an entire topic to itself. Class proceedings exist for three purposes: ... (3) correct bad behaviour

Jesus, no they aren't. You learn this shit in Legal 101. Civil is not criminal. If I have to explain any further, there is no hope.

Also, ; is not .

Re:Stupid. (0)

Anonymous Coward | more than 2 years ago | (#41838475)

Every lawyer I know is as broke as the rest of us, still trying to pay for law school 10+ years after graduating

Maybe you should have done some research on salaries upon graduation and not gone to a bottom-feeding shitty school.

Your punctuation criticism is unwarranted and also hilariously wrong. Further evidence of your poor education.

A semicolon functions nearly the same as a period in some cases. Consider "A. B." and "A; B." The two mean the same thing; the major difference is that the latter implies there is a stronger logical connection between A and B than in the former.

In other cases (notably, in legal drafting, both in litigation and transactions), it functions as a comma by convention. Consider this, for example: (1) A; (2) B; and (3) C.

Now, please, can we continue being three lawyers bickering about punctuation in place of substance? I don't think Slashdot has enough hatred of us yet.

Re:Stupid. (2)

debrain (29228) | more than 2 years ago | (#41838655)

You've *been* a lawyer? Not a very good one, I imagine. For a lawyer, there seems to be a blanket over your eyes that no lawyer I know has. Let us start:

I doubt you know many lawyers.

First, lawyers do fine with or without arbitration clauses

Really? Every lawyer I know is as broke as the rest of us, still trying to pay for law school 10+ years after graduating

It seems the lawyers you do know are not doing well.

I have done well. I am proud to count among my friends some of the most influential lawyers the world has ever known. I would tell you who they are, but you wouldn't know them.

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

That is a lie, or gross misrepresentation. Arbitration is almost always paid for by the defendant, who wishes to go through arbitration, because a civil suit is generally devastating.

You seem confused. LMGTFY [lmgtfy.com] . You shall find that the links say that arbitrations generally have fees split between the parties because, you know, that's what actually happens.

I can't even begin to imagine what you're talking about by a civil suit being devastating. For no apparent reason, that comment reminds me of the X-Files - sort of a dark, mysterious and sinister quality to it. Anyway, the result of a civil suit concluded by judicial determination is an enforceable award (which we commonly refer to as a "judgment"), which is effectively the same result as an arbitral award. Here, have a look, N.Y. CVP. LAW Â 7510 : NY Code - Article 75, Section 7501:

A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award.

So there you have it. You win at arbitration and what's the prize? The right to get a Court to enforce it or turn it into a judgment. I know. Totally fascinating, right?

As for lawyers receiving most of the damages, that is an entire topic to itself. Class proceedings exist for three purposes: ... (3) correct bad behaviour

Jesus, no they aren't. You learn this shit in Legal 101. Civil is not criminal. If I have to explain any further, there is no hope.

See, oh there's so many ... here, you can't get clearer than this: Waheed v. Pfizer Canada Inc., 2011 ONSC 5057 (CanLII), retrieved on 2012-10-31:

> [27] Where there is a cause of action, an identifiable class, common issues, and a settlement, there is a strong basis for concluding that a class proceeding is the preferable procedure because certification would serve the primary purposes of the Class Proceedings Act, 1992; namely, access to justice, behavioural modification, and judicial economy.

If I may: You seem terribly indifferent to, or painfully unaware of, essential facts on this topic that determine the reality of those that live in it, and you concurrently lack a certain ... je ne sais quoi ... that normally inhibits people who know nothing about something from saying anything about it. Your post is utterly devoid of fact or insight, and aside from my personal entertainment while the family is in bed and I man the door for trick-or-treaters, your post has added nothing to the world and perhaps wasted someone's time other than my own. That's not very nice of you. I'm going to have to go ahead and ask you to refrain from further posting to the internet until you have remedied this whole reality - inhibition thing you've got going on. We'd all appreciate it out here. Thanks.

Re:Stupid. (0)

multiben (1916126) | more than 2 years ago | (#41837973)

Who would've thought that a lawyer would write such a long winded response?

Re:Stupid. (0)

Anonymous Coward | more than 2 years ago | (#41838411)

Lawyers hate arbitration because you don't need a lawyer to arbitrate.

Haha, who the hell do you think wrote the contracts containing arbitration clauses? Hell, who do you think wrote the arbitration clauses? Hell, you realize most arbiters are lawyers, right?

Corporate lawyers love arbitration clauses. I am "head lawyer" for a tech company. I use arbitration clauses all the time.

Re:Stupid. (1)

SomePgmr (2021234) | more than 2 years ago | (#41835707)

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

Brick and mortar (0)

Anonymous Coward | more than 2 years ago | (#41835961)

You don't have to read and agree to a legally binding (or not) agreement to enter a brick and mortar store. Websites deem it vital to their existence.

Re:Brick and mortar (1)

drkim (1559875) | more than 2 years ago | (#41837299)

You don't have to read and agree to a legally binding (or not) agreement to enter a brick and mortar store. Websites deem it vital to their existence.

I guess the difference is that your physical presence in the brick and mortar store is your 'presence' in the store... (stay with me here) ...but on the web store, your 'presence' in the store is only established by your identity; and thus they have to provide protections to the identity information gleaned.

Let's turn that on it's head: If you grab merchandise in a brick and mortar store and make a run for the door, the security guard can grab you. If you are buying off a web site, the only way they can prevent fraud like that is to know who are are. And with that "knowing who you are" come greater responsibility.

Re:Stupid. (1)

stephanruby (542433) | more than 2 years ago | (#41836113)

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?

Re:Stupid. (0)

Anonymous Coward | more than 2 years ago | (#41836421)

Zappos received lots of bad PR because of the breach. How much more do they really want Zappos to suffer because of its incompetence?

All you people care about is privacy and protection from identity theft. It's a person! Leave Zappos alone!

Re:Stupid. (1)

multiben (1916126) | more than 2 years ago | (#41836791)

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.

Re:Stupid. (1)

hairyfeet (841228) | more than 2 years ago | (#41836199)

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 understand it, which they figured at a VERY conservative 25 minutes per page, you were looking at something like 14 WEEKS to just set up a PC and get all the basic websites signed up!

I mean look at the TOS for a LOT of the websites, you are talking 14-25+ pages of tightly packed legalese with the most obtuse wording they could possibly use! What they should have to do to test this crap is a "Man on the street" test where you grab 6 average people just walking down the street, hand them a paper copy of ONE page, just one random page of it, and then ask them questions over what they read. If the average person can't make heads or tails of a single page of the agreement without a lawyer present? then it should be thrown out, simple as that.

Because as it is now guys that are well read like myself often can't understand these things if you don't have a background in contract law, its just written with too much jargon to follow, it would be like handing a 65 year old judge a page written in Leet and telling him its a binding contract and he has to sign it before proceeding...do you think he would do ANY better than the average Joe does with legal leet speak?

Bad news (3, Funny)

mseeger (40923) | more than 2 years ago | (#41835401)

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

Re:Bad news (0)

Anonymous Coward | more than 2 years ago | (#41835679)

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

The court said that a valid contract requires that the party assent to the terms presented. Whether or not the party understands them is outside of the scope of the question at hand.

By not requiring users to click something saying that they assent to the terms of their TOS, Zappos has absolutely no proof that anyone ever agreed to said terms. Without that proof, Zappos has to fall back on the default contract terms in their jurisdiction (likely state/federal law based the Uniform Commercial Code or some variant thereof).

Still shitty consumer protections (4, Informative)

Quick Reply (688867) | more than 2 years ago | (#41835569)

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.

Re:Still shitty consumer protections (0)

Anonymous Coward | more than 2 years ago | (#41835639)

centipad!

Re:Still shitty consumer protections (1)

tlhIngan (30335) | more than 2 years ago | (#41835831)

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 thus, jobs.

So in the end you end up with watered down laws and other such things. Hell, look at the backlash that happened with the FTC wanted to investigate Google - anywhere from "Apple too!" to "they're doing nothing wrong!"

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?").

So on one hand, you want to have the flexibility of people to enter into contracts willingly on their own accord and on their own terms (I'm betting there'll be tons of people who'll give up their right to class-actoins for a few bucks off) with the need to protect consumers. It's a very fine line where you go in the continuum - be like the EU with strong protections, but also higher prices, or the US with weak protections, and lower prices. Try to stay in the middle and you'll find every new President will meddle with what a "fair" compromise is.

Re:Still shitty consumer protections (1)

Kalriath (849904) | more than 2 years ago | (#41836393)

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 of a manufacturing defect. Wear and tear isn't covered. Pretty much the only covered thing is premature failure due to a provable defect. The EU is unique in that it actually specifies a time period, while most implementations of this kind of law provide for a "sliding scale" taking into account what the goods do, how much they costed, and those sorts of things (legally, I can get maintenance for way longer on a Mac by citing our Consumer Guarantees Act than I can on an equivalently speced Asus, just because of the price difference).

You are correct on the VAT though - most overseas people tend to use the including tax price of the item and fail to account for State, County, and City taxes on good when comparing against the US price.

Bad laws are the problem (2)

TheSwift (2714953) | more than 2 years ago | (#41835843)

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.

Re:Bad laws are the problem (1)

Stiletto (12066) | more than 2 years ago | (#41837693)

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 different with a web site?

Re:Still shitty consumer protections (1)

niado (1650369) | more than 2 years ago | (#41835893)

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] .

Re:Still shitty consumer protections (1)

Anonymous Coward | more than 2 years ago | (#41835943)

"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 the abritration clause. It follows several other decisions in stating that an arbitration clause cannot be enforced from a contract when one party retains the unilateral right to amend the contract without regaining consent or even giving notice. That is the court protecting your rights as a consumer.

I understand and share a lot of your apparent anger, but I think you are really missing some key distinctions when it comes to the legal basis for the ruling.

Re:Still shitty consumer protections (1)

SomePgmr (2021234) | more than 2 years ago | (#41835955)

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 it.

Re:Still shitty consumer protections (1)

SomePgmr (2021234) | more than 2 years ago | (#41835997)

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

Re:Still shitty consumer protections (4, Informative)

david_thornley (598059) | more than 2 years ago | (#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.

Re:Still shitty consumer protections (0)

Anonymous Coward | more than 2 years ago | (#41836307)

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.

I live in Australia, most retailers and website still shaft people around because they know that the cost of legal action is beyond most consumers, the state's fair trading and consumer affairs bodies can only advise and mediate, they can't force an outcome in your favour, and in most cases, the business only have to give you what you are entitled to from the beginning of the dispute.

Re:Still shitty consumer protections (0)

Anonymous Coward | more than 2 years ago | (#41836415)

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

There are such laws, but please feel free to rant about non-existent issues, it's a popular internet hobby.

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

This sort of thing wouldn't hold up in court. Also, as another extreme example, you can't sign yourself into slavery, even if you sign the contract fully knowing and aware (not just in a EULA).

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.

People would still just click through. They wouldn't read it.

Re:Still shitty consumer protections (1)

hankwang (413283) | more than 2 years ago | (#41836449)

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 laws would probably not have applied there.

The website still exists: http://www.cleafs.com/ [cleafs.com] ; they are still fishy: there is a form to apply as a publisher, with a checkbox for accepting the T&C, but no link to the T&C.

Re:Still shitty consumer protections (1)

hankwang (413283) | more than 2 years ago | (#41836523)

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.

Re:Still shitty consumer protections (1)

jklovanc (1603149) | more than 2 years ago | (#41837607)

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 choice and they bear the consequences.

Re:Still shitty consumer protections (0)

Anonymous Coward | more than 2 years ago | (#41838951)

And if every merchant has unacceptable ToS?
Example: ever tried shop groveries without being filmed by surveillance cameras all the time? Yes, you are welcome to go to another store but it's the same there. The option is to starve.

Online purchases (0)

Anonymous Coward | more than 2 years ago | (#41835591)

Years ago I got into a fight with Dell after I returned a projector and they docked me a restocking fee. When I asked where the terms around the docking fee appear in the ordering process, the guy I was speaking with just gave me a URL to type in to take me directly to the terms. What he didn't get is that there was nothing in the ordering process that would have presented me with those terms before proceeding. It's not enough that the terms appear on some random web page.

I'm so tired of these "verizon math" moments where I'm forced to work through other people's stupidity. It's really exhausting and demoralizing. Seriously, it's so frequent now that I'm left with not wanting to ever do anything for fear of having to deal with the mental stress over the fallout from proceeding.

(I ended up getting the money back via my credit card provider.)

Re:Online purchases (1)

drkim (1559875) | more than 2 years ago | (#41837405)

When I asked where the terms around the docking fee appear in the ordering process, the guy I was speaking with just gave me a URL to type in to take me directly to the terms.

How could you miss them?

They were clearly on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of The Leopard."

Email theft (2)

leighklotz (192300) | more than 2 years ago | (#41835597)

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.

Re:Email theft (0)

Anonymous Coward | more than 2 years ago | (#41835963)

I've had the identifiable email addresses I have gave to political candidates, including presidential candidates, misused by spammers. Go figure.

Re:Email theft (1)

NonUniqueNickname (1459477) | more than 2 years ago | (#41836771)

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).

Re:Email theft (0)

Anonymous Coward | more than 2 years ago | (#41837395)

where is PETA when you really need them hmm.

oh and some mice still have balls dude IANAB.

The Consumer Paradox (2)

TheSwift (2714953) | more than 2 years ago | (#41835741)

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.

What about the exchange of money? (0)

Anonymous Coward | more than 2 years ago | (#41835749)

I'm definitely not a lawyer, but my understanding is that the exchange of money is also an act of agreeing to the terms that initiated that exchange.

For example the "By paying this invoice in the amount of $37.99 you are agreeing to the terms of use [link to TOS]" If the customer sends you $37.99 they have also agreed to the terms that would be active at the date of the invoice.

For any ecommerce site, doesn't this avoid some of the issues explained in the article? I mean its essentially what a lot of cell phone companies do. I have never once physically signed a cell phone contract, nor "clicked" any "I Agree" button on their websites, yet I still end up bound to 2-3 year contracts every time I make the slightest change to my package.

Same thing with credit card agreements, I sign the first one, but they change those things at least once a year it seems.

No more unilateral revision of terms (4, Informative)

Animats (122034) | more than 2 years ago | (#41835797)

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.

Re:No more unilateral revision of terms (1)

subanark (937286) | more than 2 years ago | (#41836923)

Also note on the blog you don't actually need to force the user to read the ToS, a simple "I have read the terms and services [link]" when the user registers, or puts information into your web site is sufficient.

Let's hope it stays at that level. Ideally the default rules in place if you have no agreement simply need to be toned down, an implied "use the internet at your own risk" should be written into law.

If you want a really annoying example of clickthough. Try WoW, every time the game updates you are presented with a new EULA that you have to scroll to the bottom before you can click accept followed by a ToS you have to do the same for. They say the terms have changed every time, even though they haven't, they just force to you re-agree to use their new slightly modified binary.

yet another reason not to do business with them (2)

bcrowell (177657) | more than 2 years ago | (#41835811)

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?

Re:yet another reason not to do business with them (0)

Anonymous Coward | more than 2 years ago | (#41838961)

I've found that most famous guys can be dicks when the situation isnt to their liking.

Nevada law says you can't sign your rights away. (1)

Anonymous Coward | more than 2 years ago | (#41835865)

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.

Precedent incoming! (0)

Anonymous Coward | more than 2 years ago | (#41835875)

Arbitration clauses in ALL ToS cases will go bye bye, this also means Xbox LIVE terms of service agreements will also be ruled invalid under the same precedent.

Gee, no shit (0)

Anonymous Coward | more than 2 years ago | (#41836001)

These types of ToS conditions have been blacklisted since before the internet. Why is this news?

About time (0)

Anonymous Coward | more than 2 years ago | (#41836087)

> It put a link to its terms of service on its website, but didn't force customers to click through to it.

Even if they did, those 'agreements' are written by lawyers and are long, verbose and indecipherable. Companies know they can put whatever they like in there and people are lulled into signing it without reading it. QED. These companies know people are entering into agreements with them without reading the contract, and are actually encouraging this practice. Under those circumstances its unconscionable and such contracts should be thrown out of court for those reasons. Companies should be forced to write contracts which are easy to read, small and easily decipherable.

Meeting of the minds? (1)

Anonymous Coward | more than 2 years ago | (#41836417)

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?

So does this mean (1)

WizADSL (839896) | more than 2 years ago | (#41836581)

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 (4, Insightful)

RazorSharp (1418697) | more than 2 years ago | (#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.

Lawsuits Not Worth It (2)

MacGyver2210 (1053110) | more than 2 years ago | (#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.

Re:Lawsuits Not Worth It (0)

Anonymous Coward | more than 2 years ago | (#41838429)

I'm guessing you work for zappos or even worse the law firm that advised them on their tos.

What is needed is a technical solution (2)

subanark (937286) | more than 2 years ago | (#41837161)

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 reads these days anyways.

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