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Comment by empath75 | Hacker News Reader

Wrapping every purchase in a binding arbitration agreement is absurd. It completely defangs consumer protection laws.

And how does a judge seriously decide to retroactively apply an arbitrarion agreement when none existed at the time of the transaction? Is the argument that the new ToS were accepted when Lord participated in the bug test? The article seems to be missing that detail if there even is some logic that was used in the ruling (as I assume there was, beyond not wanting to have two rulings).

It seems the argument could be that since he didn't object to the new ToS when they were changed, and kept using parts of their service, the clause forbidding arbitration towards RSI is/was still binding.

One oddity, except the usual insanity that click-through agreements should be valid for anything above, lets say $100, is that it appears the newer ToS explicitly states it doesn't apply retroactively. However, since the arbitration would always occur in the future from the later ToS, it might be a moot point.

If all of this is true, and the law correctly applied. Doesn't it create a situation where any ToS for a service - at least those you actually depend upon - are essentially worthless?

Seems like if a change the ToS to include an arbitration clause is applied this way, your only option would be immediately stop using the service, or the provider would be able to do whatever they wanted hereonafter, even completely ignore the rest of the contract/ToS?

> usual insanity that click-through agreements should be valid for anything above, lets say $100

No body reads these. We're talking about the literal <1%, and in most of those are probably lawyers who either write them or the law firms involved in cases like this.

I'm surprised there isn't more backlash against click-through EULAs.

That's the point of modern mandatory binding arbitration. It removes consumer protections and liability laws.* It removes all laws but the arbitration. To be suckered into one is to lose all protection under the law.*

* Per Hall Street Associates, L.L.C. v. Mattel, Inc. the courts have decided that manifest disregard for the law is not enough to vacate or modify arbitration. Thus the law no longer applies in the face of arbitration. Due to federal supremacy, all state laws are meaningless in the face of mandatory binding arbitration. All state constitutions are meaningless in the face of arbitration. You can and will be bound to infinite civil liability at the whims of an arbiter that does not have to decide based on law or even upon the dispute at hand.

I agree. But binding arbitration isn't written into the constitution. If we want to change it, you and I should take the matter up with Congress. (Unfortunately, that body appears to be largely ineffective these days, but that's a BIGGER problem.)

You're not purchasing anything on Kickstarter though, you're making a donation.

Nope. I see that argument many times relating to crowd funding and it just isn't the case.

When you pledge to a kickstarter, they're committing to providing the rewards stated for the money provided.

The difference between that and a standard purchase is that the product generally doesn't exist yet, which is why there is a risks section attached to every campaign, so that backers are aware that the product could run into problems.

However it's not a donation.

You’re not committing to a purchase though, there is some inherent risk in a kickstarter that they won’t deliver. And there is very little mechanism to chase them (usually they have either done a runner or gone belly up) So this is an interesting case, because the company is still around, and especially so as the poor guy is suffering MS and so has a more time limited domain to see a reward

indeed in most cases where kickstarters don't deliver by such wide margins the company is long gone.

This one is probably on older Kickstarter T&Cs so it'd be harder to get money back. In more recent times Kickstarter have tried to toughen up a little after early failures like ZioneyeZ

It's not a donation but I'd argue that even most donations carry the implication that you'll use the money for the purpose the donation was solicited for and not just have a big party for your friends.

The difference is that you're usually not expecting anything physical in return.

Or a burnt offering, as the case may be.

This is the idea...

Kind of like click-through EULAs attempt to do?

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