Judge sends Blockbuster to court over Facebook Beacon Borking

A federal judge has given the green light to a lawsuit brought against video giant Blockbuster over its use of Facebook's privacy-destroying "Beacon" ad system. A year ago, a Texas woman named Cathryn Elaine Harris sued Blockbuster after it used Beacon to share her movie rentals with her so-called Facebook friends. The suit …

[Mike]

I am with her on this one

while it has been awhile since I took a law class, from what I remember contracts are an agreement between parties, and one side cannot unilaterally modify the terms. To do so would void the contract, and invalidates the purpose of having a contract in the first place.

Personally, I am sick and tired of the contract bait and switch tactics employed by a number of companies, I hope they all get what they deserve.

[jon]

was it porn then?

"Your friend debbie69 has been watching 'Big Black German Meat Products 5' and rather liked it. Click here to >rent it!<"

Something like that then??

Paris because she has a rather large collection herself, starring... herself.

[adnim]

Only Blockbuster?

According to Judge Lynn, Blockbuster's online terms and conditions are "illusory" and "unenforceable" because the company reserves the right to change them at any time.

I have yet to read a T&C where the company DOES NOT reserve the right to change them without notice.

So I am curious, if this case against Blockbuster is sucessful, would the ruling mean that any company that reserves the right to change T&C's without notice renders those T&C's unenforceable?

[Inachu]

Oh!

By reading these comments you agree to pay me $5 million dollars on a daily basis.

[Steve Foster]

@Oh!

http://www.xkcd.org/501/

[Pablo]

Nice

Arbitrarily changeable contracts are not enforceable? Now there's a legal ruling I can get behind.

This comes as the supreme court looks prepared to rule that it's perfectly alright to strip-search 8th-graders, so needless to say some good news is welcome.

[Anonymous Coward]

Re: Oh?

"By reading these comments you agree to pay me $5 million dollars on a daily basis."

Just post us your bank account number, account name, sort code, dob, mothers maiden name and address and I'll setup a transfer....

[Andrew]

Banks?

I'm fairly sure my bank has a similar point in it's contract, would be interesting to see how this play's out.

Annoyingly this will only apply to the us, so us poor sods in the UK will still get shafted when we failed to notice a change we had violated as we hadn't visited their site for a couple of weeks.

[Nordrick Framelhammer]

Yet another reason...

not to use "social networking" like Facebook as well as sites like Twatter^H^H^H^H^H^H^HTwitter. As far as I am concerned they are all craptaular fail.

[Mark]

@Mike, post 1

Not sure whether you're a Yank or not Mike but could you confirm (IANAL style) whether this would be the case in the UK as just about every fucker reserves the right to shaft you post contract signing with you pulling up your own trousers or getting sued.

I'm interested in knowing whether these ISP/Telco-style contracts are actually enforceable or just a big-stick threat with no substance?

[Kanhef]

Far-reaching

I haven't seen the ruling, but it sounds like it might affect EULAs as well. I've never liked how many of them want you to sign away rights, and especially how they can be changed without notice. Occasionally credit card companies send out new terms and conditions, which you can either accept or cancel the card. Not a great choice, but at least they tell you about it. I think that if any party wishes to change a contract or agreement, the changes should not take effect until all parties have been notified and accept them.

This would have substantial consequences across the software industry. Web sites would have to keep track of which users have accepted which version of the agreements (and so keep a history of what changes have been made). Local software would be more complicated. Anything with an online component or version-checking feature could get the new agreements, but not everyone uses the online part and many people turn the automatic updates off. Entirely offline software could only change when the user installs a new version. And when one person accepts the agreement for a program accessible to all users of a computer, or across a corporate network, it could give lawyers nightmares.

[Heff]

OMG WAIT WAT

Legally fair T&Cs and EULAs on the horizon?

being in a position with telcos and service providers where the contract I sign is the contract I ACTUALLY FUCKING AGREE TO, Not something else 6 months later?

-hand on heart, tearing up here.

p.s. Paris, boobies.

[David Wilkinson]

Online contracts are a farse ...

It can't possibly be legal to say ... by doing business with use you have to agree to be bound by a contract that we get to change in any way we want as often as we want.

I once agreed to an AT&T long distance plan with no monthly fee, because they said it wouldn't cost me anything unless I used it, and I might need it in an emergency. Only they change the plan to add a monthly fee.

Oddly enough there was always a plan that was 100% identical to what I originally agreed with but with a different name.

I switched to that and they pulled the same crap with zero notice accept the bill. Yeah its only $5 but I still question its legality and read the various agreements.

Basically they could charge whatever they wanted, change their service to whatever they wanted, post it online somewhere and then only inform me when the bill was due.

Theoretically they could have made it $500/month and unless I sensed a disturbance in the force and looked for changes on their website ... well I'd have to pay it.

[Anonymous Coward]

@Nordrick Framelhammer

Exactly right my son.

I'm just adding this to my list of: "Why I don't do Social Networking crap"

[Anonymous Coward]

bidirectional?

If they can make arbitrary changes without notice, shouldn't you also be able to make similar changes?

[Steve Swann]

What about ISPs?

Well now, I'm in the UK but I've always had a question thats not dissimilar to this...

I obtained my broadband waaaaay back in the day when CableTel were the major provider in my area, and I signed a contract with them that didn't make any mention of throttling, caps or FUP. NTL bought out CableTel and made some minor adjustments to the contract without consulting me, limiting my upstream bandwidth to a degree. I let that slide, but then Virgin bought out NTL and made *massive* changes to the contract, hitting my internet access from all sides and in as many ways as you can imagine (and, I suspect, many of you are painfully aware of).

Makes me wonder whether it'd be worth a call to Virgin to request a copy of the 'signed' contract between us that delimits my broadband service, and then, when they fail to produce such a thing (as I never signed any such contract with them, they simply adopted my original CableTel agreement via NTL) whether it'd be worth our time, collectively, establishing a class-action against such unilateral alterations?

Anyone schooled in law around here that might be interested in such an action?

[Anonymous Coward]

The UK perspective ....

...IANAL but I'm sure the Unfair Contract ACt (1977) already covers this kind of thing. And courts have ruled contracts unfair in the past, and annulled them.

[Anonymous Coward]

UK consumer contracts

IANAL but iirc UK consumer contracts are governed by the "Unfair Terms In Consumer Contracts" regulations, whereas business contracts aren't (businesses are assumed to have time and money to spend on understanding and checking what they're agreeing to).

The usual searches will find you more.

[DR]

@Steve Swann

"Anyone schooled in law around here that might be interested in such an action?"

no, but I have an armchair, and a soap box that I freely distribute bad advice from like most other reg readers.

[Anonymous Coward]

NTL

In 2001 I moved into a house on a new estate which had been all cabled up in advance by CableTel.

Just before we moved in, NTL bought out CableTel and made some minor adjustments to the cabling - i.e. they decided not to connect the new estate up to the box at the end of the road at all. This created a black hole in cable coverage - NTL had the monopoly on provision of cable in our area, but were refusing to provide a service. (They didn't do it by accident. You could type the postcode into their website and it would tell you 'Sorry, we do not provide service in this area.')

We kept an eye out to see if a class action (breach of franchise) might be appropriate. In the end we didn't bother, as (a) broadband wasn't then generally available to Muggles in the UK anyway, and (b) we just got Sky like everyone else, as it became clear that the estate management weren't going to enforce the contractual clause that no satellite dishes could be installed until 12 months after the last house on the estate had been sold.

(In case you wonder why such clauses would exist, it was because the presence of a satellite dish on a property brought the market value of surrounding properties *down*. It was the equivalent of putting up a sign saying 'Warning! Chavs live here.' I'm serious.)

Four years (four years) later, NTL decided to connect the box, and then had the nerve to send door-to-door salesmen (in pairs) round the estate.

Now, we get plenty of hawkers, spazzers, Jehovah's Witnesses, amenity company bait-and-switchers and the like round our way. But these NTL salesmen were the first people I truly felt the need to tell (and loudly enough that some of the neighbours came out to watch) that they were trespassing and that they were to get the hell off my property before I removed them myself.

[Dr Patrick J R Harkin]

Ummm....

How did Blockbuster know her Facebook ID? Or how did Facebook know her Blockbuster account details?

[Matthew]

IANAL

Just a contracts guy.

I'm all for this ruling. Changeable clauses like these ones have been used because no one said they coundln't be enforceable until now, so everyone threw them in, hoping they'd stick until someone knew better.

The problem with them is that Contracts are supposed to show a meeting of the minds of the two parties. Yes one can say that terms need to be flexible enough to adapt, and that one can agree to anything into a contract. Meeting of the minds, an intention to contract, and certainty of terms. That's the beauty of contracts, but these clauses are totally anathema to the concept of a contract.

Nearly anything can be changed: price, property. The benefits conferred (consideration) to either party are entirely adjustable by one party. Basically one party dominates the contract by virtue of their bargaining position (std form agreement), and ruins the exchange value of this contract. If there's ever a reason for unconscionable contracts, this is it (Unfair terms agreed by way of dominant negotiating position).

This even affects limitations of liability, and these are things that have traditionally held short shrift with judges. The basic concept is you can limit your liability to exactly (emphasis: exactly) what you ask for. No more, no less. With these clauses, you can effectively amend or retroactively(!) amend your liability or even jurisdiction clauses to be more favorable. There's already significant judicial debate about what a Limitation clause can apply to, and if it's properly brought to the attention of the other person. One opinion is that if the limitation basically destroys the value for one party completely, that's it is problematic for enforceability. The whole "we can change anything and not tell you" part flies entirely in the face of this.

I do think this ruling will be limited in some capacity. It'll probably be the agreement that the consumer was last made aware of. It'll probably need to include a mandatory walk-away period. We have those here in Canada wrt to cell phones and renting where you have a period of time to walk-away entirely if drastic changes are made. I think the rationale for this is that it builds a new contract effectively by performance. You know about the changes, and accept them by continuing to use the service or product. Knowledge is critical.

I am NOT a lawyer, I just have wierd reading habits, this is not intended for, or to be used as any form of legal advice.

[Anonymous Coward]

Just say NO

Say NO to Facebook.

Say NO to Blockbuster.