10 ms·

I'm more disturbed by the parts of the article which say that he never agreed to a forced arbitration clause in the first place because it wasn't in the ToS whe

by gwern 8y ago

I'm more disturbed by the parts of the article which say that he never agreed to a forced arbitration clause in the first place because it wasn't in the ToS when he paid, but the judge decided to go with the later ToS anyway: > According to Lord, the terms of service when he made the initial pledge aren’t the same terms of service they are today. The original terms of service, according to RSI’s own records, make no mention of arbitration before February 2015. “These Terms of Service (TOS) do not affect any transactions made before its effective date,” RSI’s terms site said. “All prior transactions are governed by the TOS in effect on the date of such transactions.” > Lord came to court prepared. He had printed out multiple versions of the terms of service, all records of communication with RSI, and a long document recording the 77 promises RSI hasn’t fulfilled in a timely fashion, including citations showing where and when RSI made those promises. But the case never got that far. He said RSI’s representatives understood that Lord’s pledges weren’t covered by the arbitration clause, and he offered to settle, again, for $3,800. They declined. > According to Lord, when RSI’s representatives stood before the judge, they tried to argue the arbitration clause of their TOS. “Right off the bat, they assert the arbitration clause applied to everything, even though it plainly didn't,” Lord said. “I had to give the judge a copy of the first terms of services that clearly show that the arbitration clause was not there for the first few transactions.” > ...According to Lord, the judge decided to apply the current TOS to all of the transactions in dispute. “He said he didn’t want two rulings floating out there,” Lord said. He may have lost this case, but he’s not done fighting. “I’m going to pursue it further. I’m not sure in what direction. I’m going to be speaking with a couple of different attorneys to evaluate my options.” I mean... what? So even if you do exercise your choice as a consumer to avoid a forced-arbitration clause, companies can simply add it to their ToSes later on and retroactively make it apply to all interactions ever with the company?

daburninatorrr 8y ago
This is especially important, and I don't see anyone else here (at the moment of posting this) calling this out. This is a disastrous precedent to set for consumers, because it means that even though you are agreeing to terms on the date of the sale, those same terms of the sale can be changed on a moments notice and still affect you, without your knowledge or consent. It's a shame that he has to keep fighting this, but I would assume (edit: I should say, I really, really hope) that this decision will eventually be overturned.
- NullPrefix 8y ago
  In other words if ToS can be changed retroactively, it's a wildcard agreement. Is there even a point in reading it?
  - girvo 8y ago
    Frankly that should make it entirely unenforceable. I’m very confused by the judges choice here, other than “it’s too hard and it’s easier to apply it here” which is a pretty crappy standard.
  - PurpleBoxDragon 8y ago
    The simple solution is we need to ban all ToSs and EULAs. Make it a crime to try to enforce them on users, one that results in mandatory prison time (else companies will still use them to scare consumers, same as the warranty void if removed stickers).
    - mjevans 8y ago
      We need a library of standard contract terms (so that every time you buy a thing you don't need to read a new contract, and to prevent shafting either side on the deals). We also need those contracts to be much simpler. A single page of large font in language simple enough for a grade school graduate to understand what's supposed to happen.
      - meko 8y ago
        But that would be s-s-socialism!!
    - krageon 8y ago
      EULAs are already not legal in Europe, so they're halfway there. You could always move there!
      - g-b-r 8y ago
        Where does that come from? Yes, a few rights are better protected then in the US (at least if you haven't written the EULA in the right way), but I'm pretty sure they are generally legal and enforced.
kevin_b_er 8y ago
Yes. That's what it means. Your contract is meaningless against a corporation when they can change the terms of the agreement and force you outside of a court of law into a monkey court of arbitration. The courts are for the wealthy, not for the plebiscite. This is what this ruling shows.
- smogcutter 8y ago
  FWIW, a plebiscite is a yes/no popular vote of the whole population, not the population itself. Also, totally agreed.
  - stochastic_monk 8y ago
    He almost certainly meant plebeian, but his intention is clear and his point incontrovertible.
ocdtrekkie 8y ago
When you make a new purchase, you agree to the updated terms of service. This is pretty standard practice. (Steam makes you press a renewed terms of service agreement on every purchase, for example.) When you agree to updated terms, it generally replaces your prior agreement with a company. Had he not agreed to the new terms, his account and the purchases tied to it would still be under the old terms. The whole EULA/TOS nonsense is crazy in general, but RSI isn't doing anything unusual here, and I'm not surprised this is how a judge took it. The idea that someone could make 61 different purchases over a span of years, and then go back and think that they are entitled to refunds for all of them is a little crazy. And while the game isn't done, it is playable, and he did spend a significant amount of time playing it. It's unfortunate the game isn't developed the way he likes, but that is again, not an RSI-specific problem.
- xoa 8y ago
  Right, but like I said earlier (and I think the source of general confusion) is that the article doesn't seem to indicate that's what the attorney's asserted. Like, if they'd said >"Yes your honor, this did not apply at the time of pledge, but we updated the TOS, and he specifically agreed to updated TOS as part of his playing the beta test and here is the timestamp when he did so through his account." well, that'd still be plenty good reason to discuss how the modern practices of EULAs and TOS clearly circumvent the spirit of contract law, but it wouldn't be a new practice at all either. And it seems like it'd be a pretty straightforward, slam dunk thing to say too. The article though doesn't make it sound like that was the argument or came up. Which might be because we're getting it 2nd or 3rd hand, so we shouldn't necessarily jump to conclusions. But if the judge arbitrarily decided it applied retroactively rather then "it applies because he agreed it would at a later date" that'd absolutely be pretty scary.
  - mooxie 8y ago
    > Which might be because we're getting it 2nd or 3rd hand, so we shouldn't necessarily jump to conclusions. Yeah, as a Star Citizen backer (at an extremely modest level) I think that it just wasn't spelled out in the article. There was a LOT of hubub in the community when they added this new clause to the TOS, because you had to accept it to continue playing the alpha, which in turn meant that you could never get a refund. Now I do agree that it would be very nice to see that the judge confirmed that the user actually went through with this agreement personally and that his acceptance was not just implied by the fact that the change was made a ways back in the release cycle.
nebulous1 8y ago
The only thing to note there is the "according to Lord" part. While I have no reason to doubt him, it seems so counter-intuitive for the judge to make that decision that we should probably get an additional source.
- spathi_fwiffo 8y ago
  Which is followed by "The original terms of service, according to RSI’s own records, make no mention of arbitration before February 2015". The author is making some confusing word choices.
  - spyder 8y ago
    According to their website the ToS issued at 08 29, 2013, already contained the arbitration, and only the version issued at 10 10, 2012 is missing it. https://robertsspaceindustries.com/tos https://robertsspaceindustries.com/tos
    - krageon 8y ago
      They can retroactively change anything on their website. Of course, the same goes for the other party.
      - Mayzie 8y ago
        Archive.org has a copy from the 2013 terms of service: https://web.archive.org/web/20131017050205/https://robertsspaceindustries.com/tos https://web.archive.org/web/20131017050205/https://robertssp... It has an arbitration clause. Also, are these statements legal in America? * "YOU UNDERSTAND AND HEREBY AGREE THAT YOU HEREBY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL." * "To the fullest extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures" * "Any arbitration shall be initiated in the County of Los Angeles, State of California, United States of America. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and RSI agree to submit to the personal jurisdiction of that court." So waiving your right to the judicial system, waiving your right to enter into a class action suit, and enforcing a particular jurisdiction location? Seems very anti-consumer and not fair at all.
ensignavenger 8y ago
It sounds like a case of a small claims judge ruling in favor of a defendant simply because the defendant had a lawyer, and the plaintiff did not. Of course, there may be more to this story, but in general, lawyers almost always get preferential treatment to non-lawyers in court. That is sad state of affairs. The plaintiff can still appeal the case though, and stands a good chance of having the case heard, if the facts are as presented.
Sir_Cmpwn 8y ago
This is a very dangerous precedent. Lord should push this to appeals and maybe call the ACLU.
- ensignavenger 8y ago
  It was a small claims case, so there is likely no precedent. Your are right though, he should appeal. In my state, if a small claims case is appealed, it is always heard fresh ("de novo")
  - icks 8y ago
    Revising contracts with binding arbitration clauses has some recent precedent in the Supreme Court of the United States. Epic Systems Corp. (not the game company) sent employees a memo which can be paraphrased as, “you can no longer class action us. If you keep coming to work, you show you agree to this change.” https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf
    - wtetzner 8y ago
      I think they were saying that because it was small claims court, this particular case didn't set any precedent.
DannyBee 8y ago
Let me try to find the actual rulings for y'all and post them, so we aren't forced to rely on this kind of second hand info :)
- DannyBee 8y ago
  So being a small claims court case, there is no written opinion. However, here's the other side to this particular claim. " the vast majority of Lord's 61 pledges came after the arbitration clause was added and that Lord accepted the new terms of service when he added additional funds to his initial pledge. " My guess, if he was to appeal, the end result would be a ruling saying "The stuff done before the arbitration clause get adjudicated, the stuff after goes to arbitration" This is what has happened in the past. But in general, you are allowed to give contracts retroactive effect if both parties agree and it's explicit. This would probably leave Lord with a claim for basically nothing.
busterarm 8y ago
> but the judge decided to go with the later ToS anyway: You're forgetting that judges and lawyers are the ones who moonlight as paid arbitrators. They're only acting in their own best interests.
BinaryIdiot 8y ago
> I'm more disturbed by the parts of the article which say that he never agreed to a forced arbitration clause in the first place because it wasn't in the ToS when he paid, but the judge decided to go with the later ToS anyway: According to several other articles I read this was argued but lost due to the majority of contributed money came _after_ the ToS update which required him accepting the new ToS. It's still crappy though.
withinrafael 8y ago
I'm glad you brought this up; my head spun when I read that too. I'm hoping this is a error on the part of the article author or source. Are there records created for small claims cases?
goldfishparty 8y ago
RSI isn't even the name of a real company. It's a fictional company in SC. Cloud Imperium Games, CIG, is the actual company. The article in general is missing a lot of detail.

by gwern 8y ago

daburninatorrr 8y ago

This is especially important, and I don't see anyone else here (at the moment of posting this) calling this out. This is a disastrous precedent to set for consumers, because it means that even though you are agreeing to terms on the date of the sale, those same terms of the sale can be changed on a moments notice and still affect you, without your knowledge or consent. It's a shame that he has to keep fighting this, but I would assume (edit: I should say, I really, really hope) that this decision will eventually be overturned.

NullPrefix 8y ago
In other words if ToS can be changed retroactively, it's a wildcard agreement. Is there even a point in reading it?
- girvo 8y ago
  Frankly that should make it entirely unenforceable. I’m very confused by the judges choice here, other than “it’s too hard and it’s easier to apply it here” which is a pretty crappy standard.
- PurpleBoxDragon 8y ago
  The simple solution is we need to ban all ToSs and EULAs. Make it a crime to try to enforce them on users, one that results in mandatory prison time (else companies will still use them to scare consumers, same as the warranty void if removed stickers).
  - mjevans 8y ago
    We need a library of standard contract terms (so that every time you buy a thing you don't need to read a new contract, and to prevent shafting either side on the deals). We also need those contracts to be much simpler. A single page of large font in language simple enough for a grade school graduate to understand what's supposed to happen.
    - meko 8y ago
      But that would be s-s-socialism!!
  - krageon 8y ago
    EULAs are already not legal in Europe, so they're halfway there. You could always move there!
    - g-b-r 8y ago
      Where does that come from? Yes, a few rights are better protected then in the US (at least if you haven't written the EULA in the right way), but I'm pretty sure they are generally legal and enforced.

kevin_b_er 8y ago

Yes. That's what it means. Your contract is meaningless against a corporation when they can change the terms of the agreement and force you outside of a court of law into a monkey court of arbitration. The courts are for the wealthy, not for the plebiscite. This is what this ruling shows.

smogcutter 8y ago
FWIW, a plebiscite is a yes/no popular vote of the whole population, not the population itself. Also, totally agreed.
- stochastic_monk 8y ago
  He almost certainly meant plebeian, but his intention is clear and his point incontrovertible.

ocdtrekkie 8y ago

When you make a new purchase, you agree to the updated terms of service. This is pretty standard practice. (Steam makes you press a renewed terms of service agreement on every purchase, for example.) When you agree to updated terms, it generally replaces your prior agreement with a company. Had he not agreed to the new terms, his account and the purchases tied to it would still be under the old terms. The whole EULA/TOS nonsense is crazy in general, but RSI isn't doing anything unusual here, and I'm not surprised this is how a judge took it. The idea that someone could make 61 different purchases over a span of years, and then go back and think that they are entitled to refunds for all of them is a little crazy. And while the game isn't done, it is playable, and he did spend a significant amount of time playing it. It's unfortunate the game isn't developed the way he likes, but that is again, not an RSI-specific problem.

xoa 8y ago
Right, but like I said earlier (and I think the source of general confusion) is that the article doesn't seem to indicate that's what the attorney's asserted. Like, if they'd said >"Yes your honor, this did not apply at the time of pledge, but we updated the TOS, and he specifically agreed to updated TOS as part of his playing the beta test and here is the timestamp when he did so through his account." well, that'd still be plenty good reason to discuss how the modern practices of EULAs and TOS clearly circumvent the spirit of contract law, but it wouldn't be a new practice at all either. And it seems like it'd be a pretty straightforward, slam dunk thing to say too. The article though doesn't make it sound like that was the argument or came up. Which might be because we're getting it 2nd or 3rd hand, so we shouldn't necessarily jump to conclusions. But if the judge arbitrarily decided it applied retroactively rather then "it applies because he agreed it would at a later date" that'd absolutely be pretty scary.
- mooxie 8y ago
  > Which might be because we're getting it 2nd or 3rd hand, so we shouldn't necessarily jump to conclusions. Yeah, as a Star Citizen backer (at an extremely modest level) I think that it just wasn't spelled out in the article. There was a LOT of hubub in the community when they added this new clause to the TOS, because you had to accept it to continue playing the alpha, which in turn meant that you could never get a refund. Now I do agree that it would be very nice to see that the judge confirmed that the user actually went through with this agreement personally and that his acceptance was not just implied by the fact that the change was made a ways back in the release cycle.

nebulous1 8y ago

The only thing to note there is the "according to Lord" part. While I have no reason to doubt him, it seems so counter-intuitive for the judge to make that decision that we should probably get an additional source.

spathi_fwiffo 8y ago
Which is followed by "The original terms of service, according to RSI’s own records, make no mention of arbitration before February 2015". The author is making some confusing word choices.
- spyder 8y ago
  According to their website the ToS issued at 08 29, 2013, already contained the arbitration, and only the version issued at 10 10, 2012 is missing it. https://robertsspaceindustries.com/tos https://robertsspaceindustries.com/tos
  - krageon 8y ago
    They can retroactively change anything on their website. Of course, the same goes for the other party.
    - Mayzie 8y ago
      Archive.org has a copy from the 2013 terms of service: https://web.archive.org/web/20131017050205/https://robertsspaceindustries.com/tos https://web.archive.org/web/20131017050205/https://robertssp... It has an arbitration clause. Also, are these statements legal in America? * "YOU UNDERSTAND AND HEREBY AGREE THAT YOU HEREBY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL." * "To the fullest extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures" * "Any arbitration shall be initiated in the County of Los Angeles, State of California, United States of America. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and RSI agree to submit to the personal jurisdiction of that court." So waiving your right to the judicial system, waiving your right to enter into a class action suit, and enforcing a particular jurisdiction location? Seems very anti-consumer and not fair at all.

ensignavenger 8y ago

It sounds like a case of a small claims judge ruling in favor of a defendant simply because the defendant had a lawyer, and the plaintiff did not. Of course, there may be more to this story, but in general, lawyers almost always get preferential treatment to non-lawyers in court. That is sad state of affairs. The plaintiff can still appeal the case though, and stands a good chance of having the case heard, if the facts are as presented.

Sir_Cmpwn 8y ago

This is a very dangerous precedent. Lord should push this to appeals and maybe call the ACLU.

ensignavenger 8y ago
It was a small claims case, so there is likely no precedent. Your are right though, he should appeal. In my state, if a small claims case is appealed, it is always heard fresh ("de novo")
- icks 8y ago
  Revising contracts with binding arbitration clauses has some recent precedent in the Supreme Court of the United States. Epic Systems Corp. (not the game company) sent employees a memo which can be paraphrased as, “you can no longer class action us. If you keep coming to work, you show you agree to this change.” https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf
  - wtetzner 8y ago
    I think they were saying that because it was small claims court, this particular case didn't set any precedent.

DannyBee 8y ago

Let me try to find the actual rulings for y'all and post them, so we aren't forced to rely on this kind of second hand info :)

DannyBee 8y ago
So being a small claims court case, there is no written opinion. However, here's the other side to this particular claim. " the vast majority of Lord's 61 pledges came after the arbitration clause was added and that Lord accepted the new terms of service when he added additional funds to his initial pledge. " My guess, if he was to appeal, the end result would be a ruling saying "The stuff done before the arbitration clause get adjudicated, the stuff after goes to arbitration" This is what has happened in the past. But in general, you are allowed to give contracts retroactive effect if both parties agree and it's explicit. This would probably leave Lord with a claim for basically nothing.

busterarm 8y ago

> but the judge decided to go with the later ToS anyway: You're forgetting that judges and lawyers are the ones who moonlight as paid arbitrators. They're only acting in their own best interests.

BinaryIdiot 8y ago

> I'm more disturbed by the parts of the article which say that he never agreed to a forced arbitration clause in the first place because it wasn't in the ToS when he paid, but the judge decided to go with the later ToS anyway: According to several other articles I read this was argued but lost due to the majority of contributed money came _after_ the ToS update which required him accepting the new ToS. It's still crappy though.

withinrafael 8y ago

I'm glad you brought this up; my head spun when I read that too. I'm hoping this is a error on the part of the article author or source. Are there records created for small claims cases?

goldfishparty 8y ago

RSI isn't even the name of a real company. It's a fictional company in SC. Cloud Imperium Games, CIG, is the actual company. The article in general is missing a lot of detail.