7 ms·
Disney's not alone in saying your clicks means you can't sue
- Analemma_ 2y agoIt might be too much to hope for, but I'd really love it if this was the spark that ignited a mass movement against binding arbitration, which is an affront to consumer rights and must be destroyed. Movements often get a lot of momentum when they get a catchy slogan that sticks, and "If you watch an episode of The Mandalorian, Disney can murder your wife" is a great one.
- lancesells 2y agoReading the article this seems to stem from Supreme Court rulings, and they seem to be selling out citizens to corporations and politicians for at least the last 15 years. > Movements often get a lot of momentum when they get a catchy slogan that sticks, and "If you watch an episode of The Mandalorian, Disney can murder your wife" is a great one. Maybe there's a movement to start printing up these as posters and pasting them around cities. Make them look like a true advert but with that as a quote.
- imglorp 2y agoNot a lawyer but the "reasonable person" test seems relevant here? A reasonable person would think the EULA clickthrough on their set-top box to watch Disney+ might have some impact on consuming media and paying for it. But nobody would imagine that EULA would extend to other Disney products, especially in meatspace. ALSO if that were true, it means that some park goers did not have Disney+ contracts and they would be under different liability routes than subscribers. ALSO what if someone bought a DVD or t-shirt with its own license, then does that apply to physical harm at the park? It seems to a lay person, what happens on the set-top stays on the set top.
- repelsteeltje 2y agoThat line of thinking could actually prove beneficial long term. Here's my line of thought: Once people would realize buying multiple products or services from one vendor gets you into legal trouble, consumers might shy away from big corporations. That would give big corporations an incentive to split up into smaller ones. In the end this is just one aspect of the problems caused by companies getting too big.
- AlexandrB 2y agoI suspect this is wishful thinking. Even people who see news like this probably think: "that could never happen to me". Beyond that, it's very difficult to keep track of all the subsidiaries and "affiliates" a single huge company may have under its umbrella. The article uses the example of DirectTV using AT&T's arbitration clause to claim that lawsuits against DirectTV must go to arbitration: > In multiple class action cases, DirecTV pointed to arbitration clauses in contracts that the plaintiffs had signed – not with the satellite TV company, but with the phone services provider AT&T Mobility, when the individuals had purchased cell phones. DirecTV argued the arbitration language in the cell phone contracts applied to the telemarketing claims, because, years later, AT&T Mobility’s parent corporation acquired DirecTV, making it an “affiliate,” as referenced in the contract’s arbitration language. I didn't know that AT&T's parent company owned DirectTV. Did you?
- repelsteeltje 2y agoGood point, I think you are right. Most people have given up on reading fine print on privacy etc. Most people use Google, Meta, Amazon because hey they already have their filthy fingers everywhere already. Resistance is futile. Safe for a bunch of zealots like myself that still try to manoeuvre around Big Tech, using inferior web search, archaic operating systems, local backups, etc. The future is gloomy.
- lcnPylGDnU4H9OF 2y agoI'd similarly think a reasonable person wouldn't expect that they're agreeing to never file a lawsuit against the company and to instead always go through arbitration, even for the product in question. As the article notes, most people don't know the significance of the agreement. Perhaps said another way: if someone is going to go skydiving, it's reasonable to assume the thing that you're signing is to say, "I won't sue you if I get hurt," but it's a different thing to be sitting at a computer and agree, "I'll never sue you for any wrongdoing," when you sign up for some wholly digital service.
- sandworm101 2y ago>> some park goers did not have Disney+ contracts and they would be under different liability routes than subscribers. That is rather normal. People come to theme parks under a variety of ways. Some are just walk-ups subject to whatever waiver comes with buying a paper ticket. Others buy tickets online in other states/countries, places with maybe different rules about waivers. Some come with tour groups which might create new liability structures. Others are children, with rights that may or may not be able to be waived by their parents. And some people walking around the park are on free or donated tickets who may or may not have clicked anything.
- eadler 2y agoThe legal standard is, roughly, if the contract is "unconscionable". The courts have repeatedly ruled that most arbitration agreements are enforcable. The FTC has previously attempted rule making to invalidate predispute arbitration agreements, but a trump era Congress "disapproved" the rule. The solution at this point requires an act of Congress. https://arbitrationinformation.org/docs/problems/ https://arbitrationinformation.org/docs/problems/ is my website where I try and summarise everything I know along with sources.
- the_fed_hates_u 2y ago[dead]
- Tylast 2y agoYou might want to add contact info to your website.
- eadler 2y agoAgreed. I originally did not do so since it was incomplete and I was a bit worried about the association. It's all in a public git repo so my name was never truly hidden. But now that I'm using it more, it does make sense to be more explicit about who runs the site and what "qualifications" I have. It may not happed immediately but added to my TODO list.
- Eddy_Viscosity2 2y agoWould binding arbitration clauses apply to the POTUS or are they exempt since the supreme court put them above the law? Probably doesn't come up much, just wondering about these sorts of edge cases. Could Trump sue disney if he got a trial membership to disney+ while in the white house?
- sandworm101 2y agoThe next level will be to market these waivers. Companies the size of Disney are always expanding. The waivers are expanded into the larger footprint. So it may be possible to market a signed waiver. Bring a company into an existing legal umbrella and the existing waiver can be extended. Someone with a substantial percentage of the population under an ironclad waiver, someone likely Disney, might actually be able to sell this as a service. It would be difficult to extend the waiver retroactively, but that too may be possible through a no-click update. "To continue using disney+ you must agree this clause covering Disney and Disney partners. And fyi, those partners now include your local car dealer, the hospital that treated your broken leg, police officers, and every plumber in your state. All have paid a fee to be listed as a Disney partner. Don't like it? Well, I hope you kids don't like Star Wars."
- kube-system 2y agoI don't understand. If you like their waiver, copy and paste from here and replace Disney with your name: https://www.disneyplus.com/legal/subscriber-agreement https://www.disneyplus.com/legal/subscriber-agreement Or better, have your own lawyer write you an arbitration agreement.
- sandworm101 2y agoNo, I don't mean copy the waiver. I mean get your company into the existing Disney waivers so that everyone who has already clicked for Disney+ now also cannot sue your company. Imagine that Disney buys a competitor park. That park is now under the Disney waiver. But maybe the competitor park is not purchased but instead pays a fee to become a "Disney partner" and therefore enjoy the protections of Disney's extensive waiver scheme even if they have no real relationship with Disney.
- kube-system 2y agoSounds like a stretch in what would pass the doctrine of reasonable expectations.
- 2y ago
- repelsteeltje 2y agoThe steady creep of corporate lawfare is probably a given, globally. But this "signing away" your rights to settle disputes in a courtroom by accepting a mere eula - it seems so bonkers. Is that solely a US thing?! Does it happen in Europe?
- glitchc 2y agoThe problem is that Disney is a company that produces media, and consuming media is not a human right. Should entertainment be a human right? I don't think so, and I'm confident most legal professionals don't either.
- lotsofpulp 2y agoDisney does far more than just produce media. It houses guests, puts them on their rides, and feeds them food, etc. However, in this specific case, Disney does not even seem to be involved, and they are trying to use the Disney+ terms to get out of being in the lawsuit: https://www.nbcnews.com/news/us-news/disney-says-man-cant-sue-wifes-death-agreed-disney-terms-service-rcna166594 https://www.nbcnews.com/news/us-news/disney-says-man-cant-su... > A spokesperson for Disney told NBC News: “We are deeply saddened by the family’s loss and understand their grief. Given that this restaurant is neither owned nor operated by Disney, we are merely defending ourselves against the plaintiff’s attorney’s attempt to include us in their lawsuit against the restaurant.”
- deleted 2y ago[deleted]
- repelsteeltje 2y agoNot untrue. But wasn't the problem here that - yes, Disney is a media company, but they also run an amusement park which serves food. Not sure if food safety is a human right, but access to food is probably mentioned somewhere, no?!
- Ekaros 2y ago
- JoeCianflone 2y agoI’m not a lawyer but the way I always understood it was that this license agreements are not really valid as contracts because a contract is something all parties agree to and can amend. Consumers can’t amend these terms therefor while they may limit liability they not valid contracts. Is that not true?
- deisteve 2y agoaren't these still suable in civil court
- convolvatron 2y agonot a lawyer either but I don't think there is a 'right to amend', you can always read the terms of Disney+, review them with your lawyer, decide that the benefit of that contract doesn't outweigh the burdens or risks, and not accept it. you are of course free to submit alternative terms to Disney for consideration.
- JohnFen 2y agoI'm no lawyer, but I've never heard this. On the face of it, I don't think it's true. Or, if it is, then the vast majority of the consumer contracts I've entered into are invalid. I'd think that if that were the case, we'd hear more about the consequences of that. I believe that any contract that doesn't contain "unconscionable" or illegal terms, is agreed to by all parties, and that involves consideration, is valid. I don't think that the ability to negotiate the terms is a factor. It's hard to see why it would be -- if I get a "take it or leave it" contract that I can't accept, then I can always just not enter into it.
- salawat 2y agoMeeting of the minds is what the other poster is probably closing in on in regards to the qualities of a valid contract. Problem is, most click throughs are made in such a way as to offer no channel through which negotiation is able to occur, and even if that channel were available, most businesses would avoid maintaining it's efficiency as it massively vomplicates pricing and business system implementations if all of a sudden you're dealing with potentially millions of slightly different sets of terms. The Courts have, in my opinion, abdicated their responsibility in ensuring that a contract is considered invalid by recognizing take-it-or-leave-it clickthrough licenses as valid. Not doing so, and requiring a negotiation pipeline, would rein in these types of encroachments, because the burden incurred by playing these types of games would provide a better feedback loop to companies on what is vs. is not conscionable.
- Teever 2y agoImagine a world where it was mandated that all digital ToS requires a two way user interface so that users must have a way to edit the text box presented to them and the modified license is uploaded to the company and they must accept/deny in a timely manner. That would put a stop to the incessant 'we changed our terms of service emails that we all get and would force large companies to hire staff for actual customer service.
- lotsofpulp 2y agoThe company would just deny every modified ToS.
- kube-system 2y agoYep, this is what happened when agreements were still on pen and paper. Agreements require acceptance of both parties.
- Teever 2y agoPerhaps but the cost of doing so would make them push less updated ToS out, and the two way nature of the contracts would motivate people to read them and find creative ways to get the terms that they want. https://www.nasdaq.com/articles/updated-russian-man-turns-tables-on-bank-changes-fine-print-in-credit-card-agreement-then https://www.nasdaq.com/articles/updated-russian-man-turns-ta...
- lotsofpulp 2y agoProgramming the system to deny any modified ToS is pretty zero cost.
- Teever 2y agoWhich would be illegal in the scenario that I describe.
- bartkappenburg 2y ago
- JohnFen 2y agoI don't use streaming services for purely practical reasons: they're expensive and leave me with nothing to show for the expense. I never imagined that my habit would protect me from being abused by companies in the real world, though. Bonus!
- teachrdan 2y agoGood call. I'm not saying that you pirate media, but this is yet another reason to pirate media!
- JohnFen 2y agoI don't criticize people who pirate, but I don't do it personally. I buy my video and music, usually on physical media. I also buy music from Bandcamp, where I can download the unencumbered files rather than stream.
- codetrotter 2y agoLouis Rossmann is with you on that! “Disney creates best argument for piracy in a century” https://youtu.be/ikA9KkiTH-c https://youtu.be/ikA9KkiTH-c It’s a video he posted ~1 hour ago, about this case with Disney and the food poisoning that killed customer in their supposedly allergy-friendly restaurant.
- lotsofpulp 2y agoDisney claims it is not their restaurant: https://www.nbcnews.com/news/us-news/disney-says-man-cant-sue-wifes-death-agreed-disney-terms-service-rcna166594 https://www.nbcnews.com/news/us-news/disney-says-man-cant-su... > A spokesperson for Disney told NBC News: “We are deeply saddened by the family’s loss and understand their grief. Given that this restaurant is neither owned nor operated by Disney, we are merely defending ourselves against the plaintiff’s attorney’s attempt to include us in their lawsuit against the restaurant.”
- JohnFen 2y ago
- rdtsc 2y agoArbitration is even more confusing because there is state and federal law at play. When I bought a car they tried to force me to sign an arbitration agreement and I refused. The salesman was quite angry with me. But still sold the car. I don't know if they get extra rewards or punished for not trying "hard enough", but it was surprising to observe. That may be a state-by-state issue, I didn't check other states, just mine.
- JohnFen 2y agoI think that arbitration is simply a way that companies further increase their leverage over you by removing your right to effective legal redress of grievances. It's a scam to be avoided when at all possible.
- deleted 2y ago[deleted]
- dboreham 2y agoWondering if this will become the shark jumping moment for tricky lawyering.
- jimt1234 2y ago> ...a unanimous 2018 ruling by the US Supreme Court that said courts cannot decide whether an arbitration clause covers a dispute if the contract language says an arbiter must also resolve any such question. We're all screwed. SCOTUS isn't going to help, and Corporate America knows it. This legal trend is only going to expand.
- wigster 2y agowith this type of activity. and apple's 30% patreon m'larky. i feel we're reaching a point where some people will really start to rage against said machines. there will be blood.
- deleted 2y ago[deleted]
- rlv-dan 2y agoIf this goes through, either all companies would have to rewrite their eulas, or no-one would dare to use an online service. Either which is actually quite good.
- poikroequ 2y agoAn unusual reason to advocate for privacy, no EULA.
- akaike 2y agoReminds me of that one South Park episode about Humanpad … not in a good way though
- rkagerer 2y agoI hope the courts reign in this nonsense. Clickthrough / Clickwrap / Browsewrap agreements[1] and the like have gotten completely out of hand. If the victim's lawyers are on point, I think companies engaging in such shady legelaese will find their premise is built on shaky foundations, and that the judge will find a fundamental lack of consensus ad idem (meaning the two parties did not have a mutual understanding of what it was they were ostensibly agreeing to)[2]. There is precedent in my jurisdiction, such as the Tilden Rent-A-Car case[3], Roberts vs. Brokerage Services Inc.[4] and Zhu vs Merrill Lynch[5]. IMO most website and mobile app Terms of Use I'm seeing these days contain onerous provisions that are not sufficiently brought to the consumer's attention[6] to be enforceable. The B.C. Law Institute had a great Unfair Contract Terms report[7] which goes into this in depth. ---- Note: Links and case law below are from my jurisdiction [1] https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc1196/2011bcsc1196.html#par81 https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc1196/2011... [2] http://canlii.ca/t/fkmvj#par27 http://canlii.ca/t/fkmvj#par27 [3] http://canlii.ca/t/g1bxl http://canlii.ca/t/g1bxl [4] http://canlii.ca/t/1wcrj http://canlii.ca/t/1wcrj [5] http://canlii.ca/t/5f52 http://canlii.ca/t/5f52 [6] https://en.wikipedia.org/wiki/L%27Estrange_v_F_Graucob_Ltd https://en.wikipedia.org/wiki/L%27Estrange_v_F_Graucob_Ltd [7] http://www.bcli.org/sites/default/files/Unfair_Contract_Terms_Interim_Rep.pdf http://www.bcli.org/sites/default/files/Unfair_Contract_Term...
- rapjr9 2y agoThis can work both ways, ordinary people can add EULA's to their web presence. See Cory Doctorow's version: https://pluralistic.net/ https://pluralistic.net/ READ CAREFULLY By reading this website, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer. This would negate Disney's claim if anyone at Disney ever happened to read the page it seems. I claim the above agreement applies to this post.
- Ekaros 2y agoI wonder could you also add some automated system claim there. So simply sending them a link and their system pre-crawling it would qualify.
- Volundr 2y agoThe real test is of course in court, but I doubt this is effective. For one putting it below the content and never requiring affirmative consent prior to displaying the content probably opens the argument that the consumer never agreed, plus most employees don't have the authority make legal agreements on behalf of their employer anyway.
- b3ing 2y agoCan you really sign away your rights like this?
- leo69 2y ago[flagged]