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It might be too much to hope for, but I'd really love it if this was the spark that ignited a mass movement against binding arbitration, which is an affront to consumer rights and must be destroyed. Movements often get a lot of momentum when they get a catchy slogan that sticks, and "If you watch an episode of The Mandalorian, Disney can murder your wife" is a great one.
Reading the article this seems to stem from Supreme Court rulings, and they seem to be selling out citizens to corporations and politicians for at least the last 15 years.

> Movements often get a lot of momentum when they get a catchy slogan that sticks, and "If you watch an episode of The Mandalorian, Disney can murder your wife" is a great one.

Maybe there's a movement to start printing up these as posters and pasting them around cities. Make them look like a true advert but with that as a quote.

Not a lawyer but the "reasonable person" test seems relevant here?

A reasonable person would think the EULA clickthrough on their set-top box to watch Disney+ might have some impact on consuming media and paying for it. But nobody would imagine that EULA would extend to other Disney products, especially in meatspace.

ALSO if that were true, it means that some park goers did not have Disney+ contracts and they would be under different liability routes than subscribers.

ALSO what if someone bought a DVD or t-shirt with its own license, then does that apply to physical harm at the park?

It seems to a lay person, what happens on the set-top stays on the set top.

That line of thinking could actually prove beneficial long term. Here's my line of thought:

Once people would realize buying multiple products or services from one vendor gets you into legal trouble, consumers might shy away from big corporations. That would give big corporations an incentive to split up into smaller ones.

In the end this is just one aspect of the problems caused by companies getting too big.

I suspect this is wishful thinking. Even people who see news like this probably think: "that could never happen to me". Beyond that, it's very difficult to keep track of all the subsidiaries and "affiliates" a single huge company may have under its umbrella. The article uses the example of DirectTV using AT&T's arbitration clause to claim that lawsuits against DirectTV must go to arbitration:

> In multiple class action cases, DirecTV pointed to arbitration clauses in contracts that the plaintiffs had signed – not with the satellite TV company, but with the phone services provider AT&T Mobility, when the individuals had purchased cell phones. DirecTV argued the arbitration language in the cell phone contracts applied to the telemarketing claims, because, years later, AT&T Mobility’s parent corporation acquired DirecTV, making it an “affiliate,” as referenced in the contract’s arbitration language.

I didn't know that AT&T's parent company owned DirectTV. Did you?

Good point, I think you are right. Most people have given up on reading fine print on privacy etc. Most people use Google, Meta, Amazon because hey they already have their filthy fingers everywhere already. Resistance is futile.

Safe for a bunch of zealots like myself that still try to manoeuvre around Big Tech, using inferior web search, archaic operating systems, local backups, etc.

The future is gloomy.

I'd similarly think a reasonable person wouldn't expect that they're agreeing to never file a lawsuit against the company and to instead always go through arbitration, even for the product in question. As the article notes, most people don't know the significance of the agreement.

Perhaps said another way: if someone is going to go skydiving, it's reasonable to assume the thing that you're signing is to say, "I won't sue you if I get hurt," but it's a different thing to be sitting at a computer and agree, "I'll never sue you for any wrongdoing," when you sign up for some wholly digital service.

>> some park goers did not have Disney+ contracts and they would be under different liability routes than subscribers.

That is rather normal. People come to theme parks under a variety of ways. Some are just walk-ups subject to whatever waiver comes with buying a paper ticket. Others buy tickets online in other states/countries, places with maybe different rules about waivers. Some come with tour groups which might create new liability structures. Others are children, with rights that may or may not be able to be waived by their parents. And some people walking around the park are on free or donated tickets who may or may not have clicked anything.

The legal standard is, roughly, if the contract is "unconscionable".

The courts have repeatedly ruled that most arbitration agreements are enforcable.

The FTC has previously attempted rule making to invalidate predispute arbitration agreements, but a trump era Congress "disapproved" the rule. The solution at this point requires an act of Congress.

https://arbitrationinformation.org/docs/problems/ is my website where I try and summarise everything I know along with sources.

You might want to add contact info to your website.
Agreed.

I originally did not do so since it was incomplete and I was a bit worried about the association.

It's all in a public git repo so my name was never truly hidden. But now that I'm using it more, it does make sense to be more explicit about who runs the site and what "qualifications" I have.

It may not happed immediately but added to my TODO list.

Would binding arbitration clauses apply to the POTUS or are they exempt since the supreme court put them above the law? Probably doesn't come up much, just wondering about these sorts of edge cases. Could Trump sue disney if he got a trial membership to disney+ while in the white house?
The next level will be to market these waivers. Companies the size of Disney are always expanding. The waivers are expanded into the larger footprint. So it may be possible to market a signed waiver. Bring a company into an existing legal umbrella and the existing waiver can be extended. Someone with a substantial percentage of the population under an ironclad waiver, someone likely Disney, might actually be able to sell this as a service. It would be difficult to extend the waiver retroactively, but that too may be possible through a no-click update.

"To continue using disney+ you must agree this clause covering Disney and Disney partners. And fyi, those partners now include your local car dealer, the hospital that treated your broken leg, police officers, and every plumber in your state. All have paid a fee to be listed as a Disney partner. Don't like it? Well, I hope you kids don't like Star Wars."

I don't understand. If you like their waiver, copy and paste from here and replace Disney with your name:

https://www.disneyplus.com/legal/subscriber-agreement

Or better, have your own lawyer write you an arbitration agreement.

No, I don't mean copy the waiver. I mean get your company into the existing Disney waivers so that everyone who has already clicked for Disney+ now also cannot sue your company.

Imagine that Disney buys a competitor park. That park is now under the Disney waiver. But maybe the competitor park is not purchased but instead pays a fee to become a "Disney partner" and therefore enjoy the protections of Disney's extensive waiver scheme even if they have no real relationship with Disney.

Sounds like a stretch in what would pass the doctrine of reasonable expectations.
Or else every chemical manufacturer launches/acquires a streaming service- can't wait to watch new shows on Roundup+ or AsbestosMax
In this post: Wild, humorous speculation I wouldn't recommend anyone to attempt.

If courts can't decide whether an arbitration agreement applies unless it goes to an arbitrator, then could I just say that I'm affiliated with Disney and then they have to get an arbitrator to decide I'm not affiliated with Disney?

Or, if I were to subscribe to Disney Plus, could I use that as a basis to claim that I am affiliated by being a subscriber and therefore it requires arbitration?

That is assuming that the plaintiff is a Disney+ subscriber.

I think he wasn't actually a subscriber. I think he had just clicked the waiver for a one-month free trial. The lack of payment will likely be part of the court's decision.
I'm sure this is common practice, but Disney presumably has copyright on their waiver, so "copy and paste" would have risks
That's entirely true; I was speaking a bit metaphorically. Even if copyright isn't a concern, picking contracts off the internet isn't a great idea, because they might not apply to your situation they way you think they might. People really should engage the services of a lawyer to formulate contracts for them.
I mean, there's a very straightforward way to have that work for you:

Just get bought by Disney.

I'm sure Disney would be happy to control more parts of the world, too. Everybody[0] wins!

[0] "Everybody" includes only those under Disney's corporate umbrella. No consideration is given to the welfare of the rest of the world. Winning void where prohibited. All rights reserved, including yours.

The steady creep of corporate lawfare is probably a given, globally.

But this "signing away" your rights to settle disputes in a courtroom by accepting a mere eula - it seems so bonkers. Is that solely a US thing?! Does it happen in Europe?

The problem is that Disney is a company that produces media, and consuming media is not a human right. Should entertainment be a human right? I don't think so, and I'm confident most legal professionals don't either.
Disney does far more than just produce media. It houses guests, puts them on their rides, and feeds them food, etc.

However, in this specific case, Disney does not even seem to be involved, and they are trying to use the Disney+ terms to get out of being in the lawsuit:

https://www.nbcnews.com/news/us-news/disney-says-man-cant-su...

> A spokesperson for Disney told NBC News: “We are deeply saddened by the family’s loss and understand their grief. Given that this restaurant is neither owned nor operated by Disney, we are merely defending ourselves against the plaintiff’s attorney’s attempt to include us in their lawsuit against the restaurant.”

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Not untrue. But wasn't the problem here that - yes, Disney is a media company, but they also run an amusement park which serves food.

Not sure if food safety is a human right, but access to food is probably mentioned somewhere, no?!

>Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Well food that does not kill you seem to me qualify under adequate for health and well-being.

> Should entertainment be a human right?

The question is of copying, not entertainment. Which is an interesting topic with respect to human rights as it has not been settled whether or not mastery over it is a human right. What is generally accepted by most legal professionals, though, is that it is in conflict with human rights if not a human right itself. Which is why some believe that it is, in fact, a human right.

At least in Denmark, we have consumer rights that protect against a company making legal contracts with individual persons, that place the person in a worse situation than the law.
Generally, nope. IANAL but fundamentally there are personal rights you just cannot sign away. E.g. even if you sign an employment contract saying explicitly that you have zero vacation (just an example), it just won’t be valid. Another big difference in general is that you cannot just be suing people for whatever reason like in the states. A more relevant example for this is GDPR: nothing written in an eula can “release” the company from basic GDPR rights and principles.
In EU you have regulation 93/13/EEG that limits the possibilities of forced arbitration. Power to the consumer.

It is codified into the law of every member state, but might differ on some implementation details. For instance, in the Netherlands forced arbitration can only exists if it fair and not burdensome, and disputes can still be taken to state court. Also these clauses cannot be applied for totally different disputes (like restaurant vs streaming service like in this case).

I’m not a lawyer but the way I always understood it was that this license agreements are not really valid as contracts because a contract is something all parties agree to and can amend. Consumers can’t amend these terms therefor while they may limit liability they not valid contracts. Is that not true?
aren't these still suable in civil court
not a lawyer either but I don't think there is a 'right to amend', you can always read the terms of Disney+, review them with your lawyer, decide that the benefit of that contract doesn't outweigh the burdens or risks, and not accept it. you are of course free to submit alternative terms to Disney for consideration.
I'm no lawyer, but I've never heard this. On the face of it, I don't think it's true. Or, if it is, then the vast majority of the consumer contracts I've entered into are invalid. I'd think that if that were the case, we'd hear more about the consequences of that.

I believe that any contract that doesn't contain "unconscionable" or illegal terms, is agreed to by all parties, and that involves consideration, is valid. I don't think that the ability to negotiate the terms is a factor. It's hard to see why it would be -- if I get a "take it or leave it" contract that I can't accept, then I can always just not enter into it.

Meeting of the minds is what the other poster is probably closing in on in regards to the qualities of a valid contract. Problem is, most click throughs are made in such a way as to offer no channel through which negotiation is able to occur, and even if that channel were available, most businesses would avoid maintaining it's efficiency as it massively vomplicates pricing and business system implementations if all of a sudden you're dealing with potentially millions of slightly different sets of terms.

The Courts have, in my opinion, abdicated their responsibility in ensuring that a contract is considered invalid by recognizing take-it-or-leave-it clickthrough licenses as valid.

Not doing so, and requiring a negotiation pipeline, would rein in these types of encroachments, because the burden incurred by playing these types of games would provide a better feedback loop to companies on what is vs. is not conscionable.

> a contract is something all parties agree to

This much is true and I think it's a well-established fact that consumers don't read the terms and conditions that they "agree to" by clicking a checkbox, because it's dense legal boilerplate and it would take hours to read and understand. Nobody is going to do that to sign up for a streaming service. Any terms not directly related to the streaming service should be unenforcable on that basis alone.

Your intuition on what’s legal is miscalibrated. Clickwrap licenses have been found valid and have been upheld by courts in many legal rulings. You maybe could have made that argument 15 years ago, but not now. Some are getting to the point where “your continued use of the service indicates your acceptance of the license” is also fully valid.

See the Wikipedia entry on Clickwrap, and Planet Money episode “Surprise, you just signed a contract!”

Imagine a world where it was mandated that all digital ToS requires a two way user interface so that users must have a way to edit the text box presented to them and the modified license is uploaded to the company and they must accept/deny in a timely manner.

That would put a stop to the incessant 'we changed our terms of service emails that we all get and would force large companies to hire staff for actual customer service.

The company would just deny every modified ToS.
Yep, this is what happened when agreements were still on pen and paper. Agreements require acceptance of both parties.
Perhaps but the cost of doing so would make them push less updated ToS out, and the two way nature of the contracts would motivate people to read them and find creative ways to get the terms that they want.

https://www.nasdaq.com/articles/updated-russian-man-turns-ta...

Programming the system to deny any modified ToS is pretty zero cost.
Which would be illegal in the scenario that I describe.
I don't use streaming services for purely practical reasons: they're expensive and leave me with nothing to show for the expense.

I never imagined that my habit would protect me from being abused by companies in the real world, though. Bonus!

Good call. I'm not saying that you pirate media, but this is yet another reason to pirate media!
I don't criticize people who pirate, but I don't do it personally. I buy my video and music, usually on physical media. I also buy music from Bandcamp, where I can download the unencumbered files rather than stream.
Louis Rossmann is with you on that!

“Disney creates best argument for piracy in a century”

https://youtu.be/ikA9KkiTH-c

It’s a video he posted ~1 hour ago, about this case with Disney and the food poisoning that killed customer in their supposedly allergy-friendly restaurant.

Disney claims it is not their restaurant:

https://www.nbcnews.com/news/us-news/disney-says-man-cant-su...

> A spokesperson for Disney told NBC News: “We are deeply saddened by the family’s loss and understand their grief. Given that this restaurant is neither owned nor operated by Disney, we are merely defending ourselves against the plaintiff’s attorney’s attempt to include us in their lawsuit against the restaurant.”

What a load of nonsense. If Disney really isn't legally responsible for that restaurant, there is a common and established way of getting their name off the lawsuit.

It's quite common when a lawsuit is filed that everyone even remotely connected gets named, then those who aren't involved petition the court to get their name dropped. I've been a part of several lawsuits in this way, and getting dropped has never been a problem.

BS. If that was the case (Disney doesn't own or operate the restaurant), then that would've been Disney's first motion to the court. But it wasn't. Their initial argument was that the Disney+ EULA binds the dude to arbitration.
Their argument for not watching 99% of their output is even stronger. Most of that tripe is overpriced even when pirated. I'm sure that know that global free distribution is doing them some good else this crack down on it even harder.
Arbitration is even more confusing because there is state and federal law at play. When I bought a car they tried to force me to sign an arbitration agreement and I refused. The salesman was quite angry with me. But still sold the car. I don't know if they get extra rewards or punished for not trying "hard enough", but it was surprising to observe. That may be a state-by-state issue, I didn't check other states, just mine.
I think that arbitration is simply a way that companies further increase their leverage over you by removing your right to effective legal redress of grievances.

It's a scam to be avoided when at all possible.

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Wondering if this will become the shark jumping moment for tricky lawyering.
> ...a unanimous 2018 ruling by the US Supreme Court that said courts cannot decide whether an arbitration clause covers a dispute if the contract language says an arbiter must also resolve any such question.

We're all screwed. SCOTUS isn't going to help, and Corporate America knows it. This legal trend is only going to expand.

with this type of activity. and apple's 30% patreon m'larky. i feel we're reaching a point where some people will really start to rage against said machines. there will be blood.
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If this goes through, either all companies would have to rewrite their eulas, or no-one would dare to use an online service. Either which is actually quite good.
An unusual reason to advocate for privacy, no EULA.
Reminds me of that one South Park episode about Humanpad … not in a good way though
I hope the courts reign in this nonsense. Clickthrough / Clickwrap / Browsewrap agreements[1] and the like have gotten completely out of hand.

If the victim's lawyers are on point, I think companies engaging in such shady legelaese will find their premise is built on shaky foundations, and that the judge will find a fundamental lack of consensus ad idem (meaning the two parties did not have a mutual understanding of what it was they were ostensibly agreeing to)[2]. There is precedent in my jurisdiction, such as the Tilden Rent-A-Car case[3], Roberts vs. Brokerage Services Inc.[4] and Zhu vs Merrill Lynch[5].

IMO most website and mobile app Terms of Use I'm seeing these days contain onerous provisions that are not sufficiently brought to the consumer's attention[6] to be enforceable.

The B.C. Law Institute had a great Unfair Contract Terms report[7] which goes into this in depth.

----

Note: Links and case law below are from my jurisdiction

[1] https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc1196/2011...

[2] http://canlii.ca/t/fkmvj#par27

[3] http://canlii.ca/t/g1bxl

[4] http://canlii.ca/t/1wcrj

[5] http://canlii.ca/t/5f52

[6] https://en.wikipedia.org/wiki/L%27Estrange_v_F_Graucob_Ltd

[7] http://www.bcli.org/sites/default/files/Unfair_Contract_Term...

This can work both ways, ordinary people can add EULA's to their web presence. See Cory Doctorow's version:

https://pluralistic.net/

READ CAREFULLY By reading this website, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.

This would negate Disney's claim if anyone at Disney ever happened to read the page it seems. I claim the above agreement applies to this post.

I wonder could you also add some automated system claim there. So simply sending them a link and their system pre-crawling it would qualify.
The real test is of course in court, but I doubt this is effective. For one putting it below the content and never requiring affirmative consent prior to displaying the content probably opens the argument that the consumer never agreed, plus most employees don't have the authority make legal agreements on behalf of their employer anyway.
Can you really sign away your rights like this?
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