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1) Not sure where you're coming from. If a company has damaged me for more than $20, I have a constitutional right to jury trial against them. 2. It is meaning

1) Not sure where you're coming from. If a company has damaged me for more than $20, I have a constitutional right to jury trial against them. 2. It is meaningless in the context of "you violated our language as pursuant to § 12 paragraph 10 sentence 4 clause 2 subsection c item 15" because their language never even makes into the case due to lack of provable assent. Claiming "clickwrap", "browsewrap", "click-through" or any other jargon doesn't help. You will need to provide the full source of the code that was actually ran and show that the user actually read, understood, and assented to whatever language you claim. This is basically impossible on many fronts: a) most companies don't track events in enough detail b) you'll never be able to prove those events actually happened c) even if you can prove that someone actually checked a box and pushed a button, you still can't prove someone actually read language and agreed to it.

deleted 12y ago
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hodag 12y ago
1) I'm assuming you're getting that $20 figure from the Seventh Amendment, and while your interpretation seems reasonable and natural, it's not how the Seventh Amendment has been interpreted. First, the Seventh Amendment has never been applied to the states, so it doesn't give you any rights in your state's court. If Massachusetts wanted to amend its state constitution to abolish juries in civil cases in Massachusetts state courts, it could do so tomorrow. As far as federal court goes, it only applies if the court has jurisdiction to hear your case. The Seventh Amendment tells us that you have the right to a jury if you get to trial (in certain circumstances), but it says nothing about whether the court is allowed to hear your case. Jurisdiction in federal courts is granted by Congressional statute (subject to the limits of Article III), and you only have a right to get into federal court if your case falls under one of these statutes. Otherwise, no federal court, and no Seventh Amendment. 2) I wish this were true, but unfortunately it's not. A contract can be valid even if you never read it and you didn't understand it. What's really important is that they can prove that you made an outward and objective manifestation of your assent to that contract. If the website is set up to require you to agree to terms of service before you create an account, then they prove that. Since you've probably already alleged that you created an account when you filed the lawsuit, you're probably stuck. If you read Judge Easterbrook's opinion in ProCD v. Zeidenberg (https://scholar.google.com/scholar_case?case=11811009805458694240 https://scholar.google.com/scholar_case?case=118110098054586...), you can get an idea of how that happens. Again, I think it's shitty, but that's how it works today.
- jsprogrammer 12y ago
  1) Do you know of an instance of someone asserting >$20 damages and 7th amendment right to a jury trial being denied? 2) It may or may not be how it works today, but that is only because I have not made the argument (likewise, no one has asserted that I violated their language). > If the website is set up to require If a company wants to take the argument this far, they will have to produce all their code, including the code that was running the day they claim I assented. They will have to prove that it is not possible to use the software without assent of the user to their language. 1) Most companies will not produce their code (and likely won't be able to produce the code that you used) and will fail on their claim. 2) Most companies will not be able to prove that their code requires a user to assent before usage. 3) I can't imagine anything short of video evidence of a user staring at a screen, scrolling through all of their language, then considering their options and making a decision as proof of assent. The claimant just doesn't know what happened. Because, well, they weren't there and took no verifiable record of it.
  - hodag 12y ago
    As far as asserting more than $20 in damages and getting thrown out of court on jurisdiction: tons and tons and tons. Happens all the time. Here's an example: https://scholar.google.com/scholar_case?case=7689425032678936255 https://scholar.google.com/scholar_case?case=768942503267893.... This was back when the jurisdictional requirement for diversity cases was $50,000 (it's now $75,000). Plaintiff didn't allege enough damages, and he got thrown out of court. You may want to reconsider your assertion that it works this way because you haven't made this argument in court. Lots and lots of people have tried to argue that clicking can't form a binding contract, and they lose. Have a look at https://scholar.google.com/scholar?hl=en&q=clickwrap&btnG=&as_sdt=400006 https://scholar.google.com/scholar?hl=en&q=clickwrap&btnG=&a... for gobs of cases where clickwrap contracts have been held valid and enforceable. Here's what will happen after you file your lawsuit against the company with an arbitration clause. First, the company you're suing will file a motion to compel arbitration. You'll say "wait a minute, I didn't agree to shit." If you're lucky, the judge lets you do some limited discovery on the issue of whether you agreed. You'll get to take some discovery, but so will they. And what they'll do is take your deposition. That means that you have to show up for them to ask you questions under oath. This isn't in court in front of a jury, but you can't lie, and everything you say is recorded by the stenographer. Here's how that will go: Q: Mr. Jsprogrammer, have you ever created an account on ZZ website? A: Yes. Q: And what is the username of that account? A: jsprogrammer. Q: When you created that account, did you use ZZ website? A: Yes. Q: I'm handing you now what's been marked for identification as exhibit 1. Do you recognize this? A: Yes. Q: What is it? A: It's the registration screen for ZZ website. Q: And is this how the screen appeared when you created your account? A: I don't know. Probably. Q: Would it be fair to say that it is at least very similar to the page that you saw? A: Yes, that would be fair to say. Q: On the document I handed you, do you see the checkbox next to the words "I agree to the terms of service."? A: Yes. Q: When you created your account, did you select that checkbox on the screen? Now what do you do? You can say you don't remember. Or you can say yes, because you know you checked it. Or you can say no and commit perjury (not a good idea). Deposition in hand, they'll amend their motion to compel arbitration. They'll include a sworn declaration from their developer lead, saying that there is literally no way to create an account without agreeing to the terms. They'll attach the terms, with a sworn declaration from the guy who's in charge of updating the terms saying that these were the terms, as they appeared, on the day you created your account. Finally, they'll attach your deposition, where you (if you didn't commit perjury) don't deny that you agreed to the terms. So now what's the judge going to do? When the company refuses to turn over their source code and you ask the judge to make them turn it over, she is going to ask you why you didn't deny checking the box. You're not really going to have a good answer for that. Then, she's going to come to the natural conclusion: it's because you did check the box. Then the judge will dismiss the case, and you'll go to the arbitrator.

deleted 12y ago

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hodag 12y ago

1) I'm assuming you're getting that $20 figure from the Seventh Amendment, and while your interpretation seems reasonable and natural, it's not how the Seventh Amendment has been interpreted. First, the Seventh Amendment has never been applied to the states, so it doesn't give you any rights in your state's court. If Massachusetts wanted to amend its state constitution to abolish juries in civil cases in Massachusetts state courts, it could do so tomorrow. As far as federal court goes, it only applies if the court has jurisdiction to hear your case. The Seventh Amendment tells us that you have the right to a jury if you get to trial (in certain circumstances), but it says nothing about whether the court is allowed to hear your case. Jurisdiction in federal courts is granted by Congressional statute (subject to the limits of Article III), and you only have a right to get into federal court if your case falls under one of these statutes. Otherwise, no federal court, and no Seventh Amendment. 2) I wish this were true, but unfortunately it's not. A contract can be valid even if you never read it and you didn't understand it. What's really important is that they can prove that you made an outward and objective manifestation of your assent to that contract. If the website is set up to require you to agree to terms of service before you create an account, then they prove that. Since you've probably already alleged that you created an account when you filed the lawsuit, you're probably stuck. If you read Judge Easterbrook's opinion in ProCD v. Zeidenberg (https://scholar.google.com/scholar_case?case=11811009805458694240 https://scholar.google.com/scholar_case?case=118110098054586...), you can get an idea of how that happens. Again, I think it's shitty, but that's how it works today.

jsprogrammer 12y ago
1) Do you know of an instance of someone asserting >$20 damages and 7th amendment right to a jury trial being denied? 2) It may or may not be how it works today, but that is only because I have not made the argument (likewise, no one has asserted that I violated their language). > If the website is set up to require If a company wants to take the argument this far, they will have to produce all their code, including the code that was running the day they claim I assented. They will have to prove that it is not possible to use the software without assent of the user to their language. 1) Most companies will not produce their code (and likely won't be able to produce the code that you used) and will fail on their claim. 2) Most companies will not be able to prove that their code requires a user to assent before usage. 3) I can't imagine anything short of video evidence of a user staring at a screen, scrolling through all of their language, then considering their options and making a decision as proof of assent. The claimant just doesn't know what happened. Because, well, they weren't there and took no verifiable record of it.
- hodag 12y ago
  As far as asserting more than $20 in damages and getting thrown out of court on jurisdiction: tons and tons and tons. Happens all the time. Here's an example: https://scholar.google.com/scholar_case?case=7689425032678936255 https://scholar.google.com/scholar_case?case=768942503267893.... This was back when the jurisdictional requirement for diversity cases was $50,000 (it's now $75,000). Plaintiff didn't allege enough damages, and he got thrown out of court. You may want to reconsider your assertion that it works this way because you haven't made this argument in court. Lots and lots of people have tried to argue that clicking can't form a binding contract, and they lose. Have a look at https://scholar.google.com/scholar?hl=en&q=clickwrap&btnG=&as_sdt=400006 https://scholar.google.com/scholar?hl=en&q=clickwrap&btnG=&a... for gobs of cases where clickwrap contracts have been held valid and enforceable. Here's what will happen after you file your lawsuit against the company with an arbitration clause. First, the company you're suing will file a motion to compel arbitration. You'll say "wait a minute, I didn't agree to shit." If you're lucky, the judge lets you do some limited discovery on the issue of whether you agreed. You'll get to take some discovery, but so will they. And what they'll do is take your deposition. That means that you have to show up for them to ask you questions under oath. This isn't in court in front of a jury, but you can't lie, and everything you say is recorded by the stenographer. Here's how that will go: Q: Mr. Jsprogrammer, have you ever created an account on ZZ website? A: Yes. Q: And what is the username of that account? A: jsprogrammer. Q: When you created that account, did you use ZZ website? A: Yes. Q: I'm handing you now what's been marked for identification as exhibit 1. Do you recognize this? A: Yes. Q: What is it? A: It's the registration screen for ZZ website. Q: And is this how the screen appeared when you created your account? A: I don't know. Probably. Q: Would it be fair to say that it is at least very similar to the page that you saw? A: Yes, that would be fair to say. Q: On the document I handed you, do you see the checkbox next to the words "I agree to the terms of service."? A: Yes. Q: When you created your account, did you select that checkbox on the screen? Now what do you do? You can say you don't remember. Or you can say yes, because you know you checked it. Or you can say no and commit perjury (not a good idea). Deposition in hand, they'll amend their motion to compel arbitration. They'll include a sworn declaration from their developer lead, saying that there is literally no way to create an account without agreeing to the terms. They'll attach the terms, with a sworn declaration from the guy who's in charge of updating the terms saying that these were the terms, as they appeared, on the day you created your account. Finally, they'll attach your deposition, where you (if you didn't commit perjury) don't deny that you agreed to the terms. So now what's the judge going to do? When the company refuses to turn over their source code and you ask the judge to make them turn it over, she is going to ask you why you didn't deny checking the box. You're not really going to have a good answer for that. Then, she's going to come to the natural conclusion: it's because you did check the box. Then the judge will dismiss the case, and you'll go to the arbitrator.