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Not true. If they had previously adopted my suggestion in the old ToS, that itself would either be a breach of that ToS (leading to liability for prohibitively

Not true. If they had previously adopted my suggestion in the old ToS, that itself would either be a breach of that ToS (leading to liability for prohibitively large contractual damages) or would be an invalid change. I suggested that they explicitly remove their right to make this kind of change unilaterally. Terms of Service don't have to allow their authors an unfettered unilateral right of amendment.

tekknik 5y ago
And what’s the recourse if a company breaks their own ToS? Also no company will give up any rights as they have no real way in knowing if the gov will come force more images to be added. What then?
- jkaplowitz 5y ago
  The main recourse in practice with the arrangement I described would be a class action lawsuit alleging on breach of contract. I'm quite sure courts would have no problem with the lawsuit, assuming there were no arbitration clause or class action waiver. As for no company giving up rights, I did say I didn't expect Apple to actually do this, only that they could. Though, companies do actually make binding contractual promises all the time. It's just that they don't tend to do it with consumers or small businesses who have no negotiating leverage and/or no desire to insist on those promises. Regarding your hypothetical, anything that's actually legally mandated by the government generally overrides contract law since the courts won't enforce illegal contracts and illegality is a defense to breach of contract. They can always do what the law actually requires. But we're not talking about the government mandating things, since both the iOS 14 behavior and the iOS 15 behavior comply with the law.
  - tekknik 5y ago
    > Regarding your hypothetical, anything that's actually legally mandated by the government generally overrides contract law Which means this action is just a charade, as I pointed out. Because fundamentally it doesn't really matter. The gov is going to do what they do, and Apple is not going to create a situation in which an external group can determine how or if they can be sued in court based on how overreaching they feel that day. Also go check how many arbitration clauses exist in your ToS, just as an exercise. I'm all for banning arbitration clauses and allowing consumers recourse in actual courts. I don't believe we should have companies sign their death sentence prior to doing business, this raises the barrier to entry and results in even less competitors who have to do the same.

tekknik 5y ago

And what’s the recourse if a company breaks their own ToS? Also no company will give up any rights as they have no real way in knowing if the gov will come force more images to be added. What then?

jkaplowitz 5y ago
The main recourse in practice with the arrangement I described would be a class action lawsuit alleging on breach of contract. I'm quite sure courts would have no problem with the lawsuit, assuming there were no arbitration clause or class action waiver. As for no company giving up rights, I did say I didn't expect Apple to actually do this, only that they could. Though, companies do actually make binding contractual promises all the time. It's just that they don't tend to do it with consumers or small businesses who have no negotiating leverage and/or no desire to insist on those promises. Regarding your hypothetical, anything that's actually legally mandated by the government generally overrides contract law since the courts won't enforce illegal contracts and illegality is a defense to breach of contract. They can always do what the law actually requires. But we're not talking about the government mandating things, since both the iOS 14 behavior and the iOS 15 behavior comply with the law.
- tekknik 5y ago
  > Regarding your hypothetical, anything that's actually legally mandated by the government generally overrides contract law Which means this action is just a charade, as I pointed out. Because fundamentally it doesn't really matter. The gov is going to do what they do, and Apple is not going to create a situation in which an external group can determine how or if they can be sued in court based on how overreaching they feel that day. Also go check how many arbitration clauses exist in your ToS, just as an exercise. I'm all for banning arbitration clauses and allowing consumers recourse in actual courts. I don't believe we should have companies sign their death sentence prior to doing business, this raises the barrier to entry and results in even less competitors who have to do the same.