Posted by dryadin 5 hours ago
Agreeing to say, forced arbitration with a company, because you signed up for say, their streaming service, is obviously unconscionable. What would be even worse if those TOS said that you have to go into arbitration in matters unrelated to the streaming service.
Yet, this is what's happening. Disney used such an agreement (obtained through Disney+ TOS) when a man sued them on behalf of his dead wife, who died in their parks. It's common practice now to have these clauses in TOS, e.g. Discord has it too.
That said, they do also say this:
> we determine that Appellees received inquiry notice of the Oct. 2023 Terms. Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” Godun v. JustAnswer LLC, 135 F.4th 699, 710 (9th Cir. 2025), and we do not hold that notice by mass email establishes inquiry notice in every case.
So the HN headline is misleading at best.
(They also note that, while they should consider how normal internet users behave, they can't do this because "there is very little empirical evidence regarding" the question. So they substitute a discussion of how reasonable they find Tile's actions in the abstract.)
https://www.independent.co.uk/news/world/europe/read-the-sma...
When I tried to resolve it a couple of years ago I received boilerplate emails informing me that the migration period had ended.
So if you deal with companies that simply don’t honor their contracts—companies like Microsoft and Mojang—you don’t even need use to imply consent, because they can just lock you out of your purchases and tell you to pound sand.
Why the heck is the court completely oblivious to that fact when weighing the facts on each side? You'd think a case hinging on a crucial email being sent into spam would at least mention that fact more than once? (!) The court certainly seems to take into account common practices in every other aspect of the case except that most crucial one... why?! No explanation whatsoever? Would this really survive on a hypothetical appeal?
> As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.
Well yes, they did, but:
> Because “there is very little empirical evidence regarding” Internet users’ expectations, the focus of this inquiry is “on the providers, which have complete control over the design of their [apps and] websites and can choose from myriad ways of presenting contractual terms to consumers online.”
...Tile should've expected that its email might go into spam, right? Shouldn't the court at least mention this, even if it doesn't lend it any weight?
> Evaluating whether inquiry notice has been established is, however, always a “fact-intensive analysis,” and we do not hold that notice by mass email establishes inquiry notice in every case.
At least they say their ruling doesn't generalize...
> Broad did not locate the Oct. 2023 Notice until January 2024, when she affirmatively searched for the email and found it in her spam folder.
I think it's rather relevant that she affirmatively searched for and found the email?
Statistically speaking, most people use one of the biggest email providers, which use their own models to detect spam (or even quietly drop messages). If you're doing an unpopular TOS change, why not set the mail up to still be RFC compliant but in such a way where the mail isn't going to be allowed through by any of the providers. Then you can just claim the problem is userside.
For example, the Message-ID header is technically not required (SHOULD rather than MUST), but as a spam detection measure, Gmail just drops the message entirely for workspace domains: https://news.ycombinator.com/item?id=46989217
Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".
Even if you are OK with the idea that a user can be presented updated TOS with no option to disagree (I don't, but put that aside for a moment), it should still require a mechanism that actually guarantees (or at least verifies) that the user has seen that the terms are updated. Email is not that. (An unskippable notice on login to a web service would be.)