Comment by dalbasal | Hacker News Reader

Comment by dalbasal | Hacker News Reader

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Most of the pseudo-contract BS that defines consumer-company relations is trash legal theory. It should have never held water in the first place.

The fact that our legal systems have tolerated and supported it, mostly demonstrates how intellectually weak the legal profession's philosophy and ethic is.

Companies, especially interacting digitally, use TCs, EULAs and other such nonsense like an incantation. Those are not agreements. They are stupid little rituals that strip users/consumers/whoever of all rights.

Any right that can be stripped by TCs... doesn't exist.

The whole concept of "by agreement" in these circumstances is bogus but... If it must be this way... Stack the deck in the other direction.

"By serving this browser a webpage, you agree to the following..."

By dripping a cookie, by recording this person's data. Pro user, pseudo-legal defaults.

Make "you must agree to X, before you use the product you bought" invalid. Give consumers the full right to unlimited time refunds, if divulging data or agreeing to terms (old or new) is a condition for using the product

This ridiculous deck can be stacked either way.

If I have to agree to a coercive contract intended not to be read, in order to use a device... Give me the right to say no and get a full refund at any time. At least invalidate the agreement.

Where TF are our judges, judicial philosophies, law professors? I want to ask "How could they let this happen' but the correct question might be "Why did they do this to us."

> you must agree to X, before you use the product you bought

To my understanding in many countries this is already illegal in practical terms. Users in those countries are usually permitted to just click through those kinds of agreements and they'll hold no legal water. A EULA must be shown before the user obtains the application or appliance (this for example is why Steam will ask you through click through accepting any third party EULAs before you can download a game and why third party EULAs for a game are listed and readable in an attention drawing yellow bar on their store page) and "back of the box link to the EULA" isn't allowed. (And even then, the majority of stuff in EULAs that goes beyond the liability-related stuff is illegal anyway since they forbid things that are considered rights you just have.)

The US is basically the only country where these kinds of shrinkwrap EULAs tend to have more use than fancy toilet paper as far as I know.

(I am however, not a lawyer.)

It's not illegal, it's just not legally binding. Accepting an EULA after purchase is more like "we would like you to comply to these license terms, but if you violate them, we can't do anything"

In a lot of countries only the terms that were accepted during purchasing are legally binding. So if you buy a windows license in a shop without signing a contract, than no additional terms except general copyright laws apply.

With SaaS and online services this got way more complicated though. They can always ask to accept new conditions and stop providing their services if you don't accept them.

>than no additional terms except general copyright laws apply.

Meaning you can't use the software because that would be copyright infringement? EULA are what give you the right to use the software.

No, buying the software gives me the right to use it. Whatever happens after is meaningless by law.

Even if I have to sign the EULA in the store before purchasing the software, no "surprising" or "unconscionable" parts can take legal effect.

> Meaning you can't use the software because that would be copyright infringement?

Using the software is explicitly not copyright infringement. Private modification probably isn't either. Generally you don't need anyone's license to use your private property as you see fit; copyright is an exception but it only applies to a limited set of things.

Dishing out an EULA that contains non-enforceable terms should be criminalized. Probably if the deck wasn't so stacked for business, it would be quite clear to interpret such EULAs as fraud or attempted fraud.

But as the GP said, the whole thing is a total corrupt farce.

Technically EULAs with non-enforceable terms are meant to be thrown out as a whole in court, even in the US.

Unfortunately every lawyer quickly caught on that their explorative legal fiction being thrown out entirely might make their employer unhappy, so most EULAs have some sort of clause that if a part becomes unenforceable, it won't break up the entire thing.

A clause in the agreement that's already meant to be thrown out? Surely in any case where that clause would be relevant it's already void.

Have there been any cases of someone suing for a refund because they didn’t like the change to licensing?

In Belgium, someone sued because windows showed its license only after you paid for it. It was declared illegal. Instructions about the license are now printed on every boxed copy of windows, so you know the license before you pay.

That’s cool, I wish you could do that to online (one time purchase) services that change your license terms after purchase. Keep my license terms static or full refund.

Although that standard might lead to them just moving to a monthly subscription model

Most licence terms already include a term to change the terms. So technically once you buy it, install it, and agree to it, you are also agreeing the terms may change. They probably also have arbitration clauses you are agreeing to so you can't directly sue them either.

That can’t be legally valid, because you wouldn’t know the future terms you’re now ostensibly agreeing to.

That's why they get you to agree to new terms and conditions with an update, or when there is a new TC you get a lovely email or whatever to ignore. Either you don't accept it so you don't get the update or you don't accept them and you can't continue to use the service if you don't accept the new terms.

The consideration for the change is getting the new features, updates, or using the services.

If for example your phone company changes its terms with you, it has to tell you, and you can exit the contract.

I'm not sure how this works if it's one of them subsidised phones however.

They can usually cancel the contract early, then you keep your subsidized phone without paying it off. In such a case they usually accept to keep the old conditions until the phone is paid off, because they don't want to give away a phone for free.

A court could also order a full reversal of the performance to the pre-contract state.

> Where TF are our judges, judicial philosophies, law professors?

They are writing law in MS Word and negotiating any changes in law by sending paragraphs over email, which they check once a day at most.

Checking email only once a day is a new privilege. Like long fancy sleeves were in the time before.

>> They are writing law in MS Word and negotiating any changes in law by sending paragraphs over email, which they check once a day at most.

Fair point. But, I don't think it's good enough, at this point.

Software is not new or marginal anymore, and the business of software certainly isn't.

Practices like terms and conditions... Its not something lawyers can't see. I've heard the same thing about patents and I don't really believe that either. Patent lawyers, specialists and reviewers are nerds... They're not "boomers."

There are no more excuses. It's just makes suck now.

Eben Moglen is a unicorn.

They seem to be wasting their time writing comments on Hacker News

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