Is there a chance of coercion in regards to whether one of the parties entered the contract? Of course there is and if that's the case, it's not a contract.
I don't know what an "unfair negotiating" advantage is, at least not as it regards whether or not I enter a contract, so I can't really weigh in on that.
If a large enough group of outsiders to the contract don't like the contract and can change the terms after the fact, wouldn't that undermine the confidence for people to enter in to them in the first place?
Anyway, people are free to be upset about terms and conditions even after they've "agreed" to them, particularly if those terms and conditions are widely recognized as onerous.
And, specifically to your point, courts have retroactively determined some conditions to be so flagrantly unfair that they've been stricken from contracts.
You can see this principle at work in Britain's short lease (as distinct from a long leases of say 99 years) residential property laws too. A bunch of potential terms for such leases are defined to be unfair. Some landlords - after this change - went to court and said "well, but my tenants signed to say they knew the terms were unfair and agreed anyway - see, it's right here on page sixty of the contact" and judges told them where they could stick their unfair contracts. So sure enough those terms went away.
As to how you tell, courts already know this. If party A wrote the contract and party B's options were to agree or GTFO then party A has an advantage. Its normal contract law - oh, McDonalds signed this lease, but Tiny Co wrote it, so Tiny Co were the ones at advantage and anything unclear must not be construed to their benefit.
It is common sense that when an asset is leased/rented to another party, if that other party does not pay on time or is somehow using the asset outside of the terms of the agreement, that the owner would remove access to the asset. If laws are made to subvert the ability to exercise common sense, that's a different issue.
As a side note, I am a landlord myself, and I have a hard time understanding what motivation I would have to be "abusive" with access to my rented properties. I am interested in getting paid and having my property not damaged beyond normal wear and tear. "Abusing" my tenants would not seem to further either of those two interests. It would be interesting to understand what exactly is being considered abuse. Though I get it is probably off topic.
https://en.wikipedia.org/wiki/Unconscionability#United_State...
"The District of Columbia Court of Appeals returned the case to the lower court for trial to determine further facts, but held that the contract could be considered unconscionable and negated if it was procured due to a gross inequality of bargaining power."
Not sure that any of these definitions could be applied to this situation with a straight face, but even if they could, it's not really the point. I think the assumption is (or maybe it's only my assumption) that this is a contract that is enforceable. It sounds to me more like one of the parties didn't read all the terms and is now unhappy when they are being enforced.
Came home once our door was just sitting open, the landlord had come in while we were gone and just left our door sitting open. The landlord.had come in and went through our drawers and stuff. Didn't tell us until we asked why our door was open.
We had the cops called on us for apparently smoking weed in the suite, we never did this, we also used to watch the landlords wife hang out with her son and his friends while they smoked weed in the front yard. By the time the cops left they told the landlord and his wife to stop bothering us...this never happened.
Our rental agreement was for a year. Our only recourse would have been to go through a long complaint process where we had to have a bunch of proof of this being an ongoing thing, then we'd have to sit down with an arbitrator and our landlord and once again prove this was happening. Luckily our landlord decided to break our rental agreement by whiting out the part, of the one copy that existed, we never even got a copy of it, that said one year, writing in pen 3 months then kicked us out so his adult son could live there. We also never got our damage deposit back with no reason given despite not even living in the place long enough to really even unpack.
In the end it worked out for the best but despite our landlord's continued breaking of our agreement and the law, we ended up losing our deposit, being forced to find a new place and move just after going back to school and we had no real options or recourse to stop any of it. Everything was set up to make any kind of complaint about landlords go through a lengthy arbitration process with the tenancy board and police won't get inolved, if a tenant complains, until after that fails, we tried calling the cops, they said to call the tenancy board.. The whole process for that would have taken longer than the three months we actually lived there and would have cost us money we really couldn't have afforded to spend.
Put more contritely, there is a reason indentured servitude is not legal.
If this is already compatible with what you were saying, apologies.
To take that approach, the house I'm sitting in has a 1000 gallon propane tank buried in the side yard. It is typical in my area to finance (either lease or lease-to-own) tanks. So when I bought the property, I made sure to require that the seller provide evidence that he owned it free and clear. Had I not done that, and had the owner of the tank come over and removed it after I (or presumably the seller) stopped paying for it after the sale, I would accept that. I would kick myself for not thinking of it, but I'd accept it.
That being said, in reality, it appears (as many have pointed out) that digital product “sales” are actually closer to indefinite rentals. And as a result your original analogy is closer to reality, but is far from what people expect when they “buy” a movie from iTunes, since a reasonable expectation would be the house or propane tank purchase analogy.
I don't see how that can be argued with a straight face unless when you hit the "buy" button the license expiration date was clearly marked. Obviously "we can terminate rights at our discretion" was buried in a mountain of legalese but nobody should be expected to read or understand what that means.
Lockouts have been historically abusive, so the law here covers them specifically.
The solution to this seems simple to me, Apple should prompt the customer to download a local copy. Or upload it automatically to that person's iCloud account.
To me the problem is that we allowed corporations to invoke complex legal maneuvering such as redefining the legal definition of watching a movie, and requiring a legal agreement to do so, all for the purpose of further enriching apple and the movie industry.
Also I dispute whether it is an "agreement" after all. Did each consumer sit down and read a printed contract, forward it to their counsel for review, then sign on the dotted line before they watched The Incredibles 2 ? No, they didn't. There wasnt an "agreement" but rather a surrender of previously existing legal rights.
In fact, I think all these one-sided contracts should be called "rights surrenders" instead of "license agreements". By clicking "I surrender", you are now allowed to watch your digital copy of The Incredibles 2 some indeterminate non-zero number of times before it's randomly removed from your possession