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[Ars] France says Facebook must face French law in nudity censorship case - Page 4

post #31 of 86
Quote:
Originally Posted by BinaryDemon View Post

I'm confused with how this is even a legal issue.

Facebook isnt a right, or even a paid service. I would think that FB could suspend anyone's account for any reason without any legal implications.

If FB suspends my account am I really harmed in any way?

It depends on what you are using it for. If you are a public figure it could be very harmful if you lost your FB account. Censorship is the claim in the original lawsuit but FB tried to say the suit was invalid because of it's ToS.
Quote:
(section 15) that all users must resolve disputes with the social network, "in the US District Court for the Northern District of California or a state court located in San Mateo County.”

The Terms of Service add, "The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions.”

French courts have said that this section is were “abusive” and "violated French consumer law by making it difficult for people in France to sue”. Censorship and over reaching ToS and EULAS are worthy causes to fight.
Quote:
Originally Posted by Zen00 View Post

But then again, it's France.

Right, if it was here in the US this would have gone no where. I don't think our courts and law makers even understand the concept of consumer protections. If they need help on consumer issues they just ask what ever corporation paid their lunch tab for assistance.
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post #32 of 86
How can you even sue FB for suspending your account? Isn't that the definition of frivolous?

Oh yeah, France.
post #33 of 86
Quote:
Originally Posted by bigjdubb View Post

It depends on what you are using it for. If you are a public figure it could be very harmful if you lost your FB account. Censorship is the claim in the original lawsuit but FB tried to say the suit was invalid because of it's ToS.

I'm sorry, but you do not have a right to a Facebook account. Facebook does get to decide whether you have an account or not, and they can close it whenever they feel like it for any reason or for no reason.
post #34 of 86
Quote:
Originally Posted by bigjdubb View Post


Right, if it was here in the US this would have gone no where. I don't think our courts and law makers even understand the concept of consumer protections. If they need help on consumer issues they just ask what ever corporation paid their lunch tab for assistance.

cynical sneaky.gif
post #35 of 86
In the end its their site, if they choose to ban customers then they should be able to do that its up to the consumer to then go to a different service if they don't agree with their policies. I don't understand why this is even an issue in France, isn't Laissez-faire their system to begin with, same principles different wheel house.
post #36 of 86
Why do people still use Facebook? It rots your brain with misinformation. Facebook and Reality TV are the gateway to the Idocracy. Plus if you want to post uncensored pictures use twitter.

Plus posting a picture of a famous painting is grounds for copyright infringement, unless he had permission.
post #37 of 86
Quote:
Originally Posted by tpi2007 View Post

You are just playing a fruitless game of semantics.

You of course realize you are talking about legalese; yes?

It isn't a game of semantics, it IS semantics, it is technicalities, it is the LAW. Copious numbers of lawyers, their staff, and many other entities earn unfathomable sums of money from that fruitless game of semantics you so casually dismiss.

You might care to gloss over the differences in language as unimportant, and you have that right. That doesn't mean you can impose your world view on someone who actually knows, or wants to know or understand the REAL implications of the words in those documents.


EDIT: re-read it and it originally sounded like you were trying to dismiss the importance of TOS / EULAs. Read the rest of the thread after, and first couple of posts again ironically now it just sounds like you question his dissection of your language, when talking about the dissection of the EULA / TOS language. Regardless of the interpretation I'm still scratching my head trying to find out why you think a contract is any less legally binding than a law.

I apologize for the out of order posting, I just had to put this response in towards his comments.
Edited by Avonosac - 2/15/16 at 10:05am
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post #38 of 86
Thread Starter 
Quote:
Originally Posted by Masked View Post

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Quote:
Originally Posted by tpi2007 View Post

Of course he does. He's now shifted from the point he originally made in his first post, probably when he realized what you just posted.

At this point I have to say that you either don't know how to use quotation marks (hard to believe) or are doing it intentionally to put words in my mouth, I did not say any of the two in bold above.

So, who exactly is aggrandizing the affair?

I did not shift, not once.

I agree they need more scrutiny, they absolutely should be scrutinized.

Here - Here's an example of what you're rhetoric.
Quote:
McDonalds got caught using Alien Meat in it's Danbury Store. - They slaughtered the Alien and cut it up. Case went all the way to the supreme court. Therefor, either all McDonalds are using alien cows OR this store is doing it repeatedly OR Burger king is!

PROVE IT.

Prove ANY portion of that statement beyond McDonalds.

I've asked you to do the same now with your initial statement numerous times.

See post #23.



Of course you did. You weren't disputing in your first post what you are disputing now.


Well, I knew this was already surreal, but you could do without bringing in an alien meat example lol.




Anyway, you want proof, here goes then:



Ars: Washington State court deals a blow to one-sided EULAs
Warning: Spoiler! (Click to show)
Quote:
Anyone who has even a cursory familiarity with modern technology is undoubtedly familiar with one-sided terms of service agreements. Everything from bank accounts to phone service now requires consumers to accept that any contract disputes will be handled on the service provider's terms, which typically specify arbitration in a venue of the corporation's choosing. But the Supreme Court of Washington has now provided consumers in that state with some relief, ruling that the state's Consumer Protection Act makes lopsided service agreements void.



Polish Office of Competition and Consumer Protection: Abusive Contract Terms - Register of prohibited clauses, there are standalone database PDF and XLS files, in Polish though, with all the illegal clauses per the final judgement of the Court of Competition and Consumer Protection.



CGO Legal Counseling: Swiss franc credits – Abusive clauses
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Quote:
The primary examples of the above are the Swiss franc credit contracts. It is common practice that banks include in contracts provisions that entitle them to apply currency exchange rates as per their own charts. This may result in significant loss at the credited party’s end.

Including such provision in a contract has been recognized as the aforementioned abusive clause and, as such, it has been officially recorded in the Register of Prohibited Clauses maintained by the Office of Competition and Consumer Protection. Since that moment, all banks have been obliged to refrain themselves from including in contracts provisions on applying currency exchange rates as per their own conversion rates. The foregoing results in deeming such provisions null and void – the credited party is not obliged to abide by them, however the remaining provisions of the contract remain in force.

In case a bank is found to be partaking in such practice, which is still quite common – regardless of the foregoing restrictions, the credited party may refer to the practice being held prohibited and thereby, for example, assert claims for damages.


International Law Office: Madrid Court Declares Certain Banking Contract Clauses Null
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Quote:
On May 11 2005 Division 13 of the Madrid Provincial (State) Court handed down a decision declaring the nullity of eight clauses that credit institutions usually include in client contracts. The court considered these clauses to be abusive.

The ruling is significant not only because it affects clauses that are included systematically in chequing account, credit/debit card and loan/mortgage agreements, but also because its effects are binding on the defendant entities (three banks and another institution) as well as on all financial institutions in Spain.



Ars: Top EU court upholds right to resell downloaded software
Warning: Spoiler! (Click to show)
Quote:
The European Court of Justice has ruled that customers have a right to resell software they purchase regardless of whether the software was originally distributed on a physical medium or downloaded over the Internet. The ruling is a defeat for Oracle, which had argued that the court should uphold provisions in its license agreement prohibiting such transfers.



https://en.wikipedia.org/wiki/Unconscionability
Warning: Spoiler! (Click to show)
Quote:
The leading case for unconscionability in the United States is Williams v. Walker-Thomas Furniture Co.,[2] in which the defendant, a retail furniture store, sold multiple items to a customer from 1957 to 1962. The extended credit contract was written so that none of the furniture was considered to be purchased until all of it was paid for. When the plaintiff defaulted and failed to make payments on the last item of furniture, the furniture store attempted to repossess all of the furniture sold since 1957, not just the last item. 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.


Groklaw: AT&T EULA's Terms Are Found "Unconscionable" - What Does That Mean?
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Quote:
I also want you to see why I always tell you that it's in the court system that the little guy at least has a chance to get a fair shake, no matter how huge and powerful the other side might be.

"Courts, not arbitrators, decide the validity of arbitration agreements," the court wrote, and this one didn't pass the sniff test in all its parts:
Quote:
AT&T's Consumer Services Agreement is substantively unconscionable and therefore unenforceable to the extent that it purports to waive the right to class actions, require confidentiality, shorten the Washington Consumer Protection Act statute of limitations, and limit availability of attorney fees. We emphasize that these provisions have nothing to do with arbitration. Arbitrators supervise class actions, conduct open hearings, apply appropriate statutes of limitations, and award compensatory and punitive damages, as well as attorney fees, where appropriate. Courts will not be easily deceived by attempts to unilaterally strip away consumer protections and remedies by efforts to cloak the waiver of important rights under an arbitration clause. The dispute resolution section is severable from the balance of the contract. We affirm the trial court in all respects unless otherwise noted and remand for further proceedings consistent with this opinion.


Techdirt: California Outlaws Consumer-Silencing Non-Disparagement Clauses
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Quote:
In one state, at least, non-disparagement clauses like the one KlearGear tried to use to extract $3,500 from unhappy customers, will be illegal. California governor Jerry Brown has just signed a bill that will prevent companies from silencing customers with non-disparagement clauses buried in Terms and Conditions pages.



Slashdot: Second Life Arbitration Clause Unenforceable
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Quote:
NewYorkCountryLawyer writes

"In a decision that could have far-reaching implications, a federal court in Pennsylvania has held that the California arbitration clause in the 'take it or leave it' clickwrap agreement on the Second Life website is unconscionable, and therefore unenforceable. In its decision (pdf) in Bragg v. Linden Research, Inc., No. 06-4925 (E.D. Pa. May 30, 2007), the Court concluded that the Second Life 'terms of service' seek to impose a one-sided dispute resolution scheme that tilts unfairly, 'in almost all situations,' in Second Life's favor. As a result, the case will stay in Pennsylvania federal court, instead of being transferred to an arbitration forum in California."



PCMag: Jumping Through EULA Hoops
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Quote:
Another decision that should be of particular concern to PC Magazine readers was handed down recently in New York State. Blue Coat Systems had decided it could contractually forbid customers from criticizing its products. It did so by inserting an "antibenchmarking" clause into its EULA. Seems it didn't want any customers comparing its proxy servers with the competition's. The state attorney general's office filed suit, at which point Blue Coat quickly settled, paid a small fine, and removed the clause from its contracts. Amen.


Technology & Marketing Law Blog: How Zappos’ User Agreement Failed In Court and Left Zappos Legally Naked (Forbes Cross-Post)
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Quote:
The court does not have kind words for Zappos’ implementation:
Quote:
we cannot conclude that Plaintiffs ever viewed, let alone manifested assent to, the Terms of Use. The Terms of Use is inconspicuous, buried in the middle to bottom of every Zappos.com webpage among many other links, and the website never directs a user to the Terms of Use. No reasonable user would have reason to click on the Terms of Use, even those users who have alleged that they clicked and relied on statements found in adjacent links, such as the site’s “Privacy Policy.”

Quote:
Later, the court reinforces how unimpressed it is with Zappos’ browsewrap argument:
Quote:
The arbitration provision found in the Zappos.com Terms of Use purportedly binds all users of the website by virtue of their browsing. However, the advent of the Internet has not changed the basic requirements of a contract, and there is no agreement where there is no acceptance, no meeting of the minds, and no manifestation of assent. A party cannot assent to terms of which it has no knowledge or constructive notice, and a highly inconspicuous hyperlink buried among a sea of links does not provide such notice. Because Plaintiffs did not assent to the terms, no contract exists, and they cannot be compelled to arbitrate.
Quote:
Zappos Reserved the Right to Amend the Contract Whenever It Wanted

As you can see from the screenshot snippet above, Zappos’ terms of use says “We reserve the right to change…these terms and conditions at any time.” Zappos isn’t the only website using language like this; it’s ubiquitous on the Internet. Unfortunately, despite its widespread usage, this language is toxic to a contract.

The court takes this amendment power to its logical conclusion. If Zappos can change the terms at any time, then it can change the arbitration clause at any time. Thus, citing to a long list of cases, the court says that such unilateral power to change the arbitration clause makes the clause “illusory”–and thus unenforceable.


Technology & Marketing Law Blog: Stop Saying “We Can Amend This Agreement Whenever We Want”!–Harris v. Blockbuster
Warning: Spoiler! (Click to show)
Quote:
This industry-standard and entirely typical clause does not fare well in this courtroom. Among other defects, the judge notes that “there is nothing in the Terms and Conditions that prevents Blockbuster from unilaterally changing any part of the contract other than providing that such changes will not take effect until posted on the website.” As a result, the court deems the arbitration clause “illusory,” an odd Texas law descriptor that appears to be a cousin of lack of consideration.

I could wax philosophic about the ontological meaning of a “contract” that one party can amend unilaterally at any time without notice. However, I’d rather focus on the simple practical implication from this ruling. I’ve never been a fan of the language Blockbuster used, and I had hoped many websites would reconsider the language after the Ninth Circuit trashed such provisions in 2007 in Douglas v. Talk America (also see my follow-up post). Yet, these clauses are still ubiquitous, even at big websites that “should know better,” so let me boil it down for you into a single all-caps mantra:

STOP PUTTING CLAUSES INTO YOUR CONTRACTS THAT SAY YOU CAN AMEND THE CONTRACT AT ANY TIME IN YOUR SOLE DISCRETION BY POSTING THE REVISED TERMS TO THE WEBSITE



Technology & Marketing Law Blog: Ninth Circuit Strikes Down Contract Amendment Without Notice–Douglas v. Talk America
Warning: Spoiler! (Click to show)
Quote:
In this case, the plaintiff initially procured telephony services from AOL, which subsequently sold its telephony business to Talk America. Talk America posted revised terms (including a new arbitration clause) to its website. When Douglas sued Talk America in court, Talk America sought to compel arbitration. The district court agreed, but the Ninth Circuit reversed. It pointed out that Douglas hadn’t been back to Talk America’s website, and even if he did, there was no reason he would have investigated the user agreement. The court says curtly, “Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side.”

Edited by tpi2007 - 2/15/16 at 10:47am
 
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post #39 of 86
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Originally Posted by Majin SSJ Eric View Post

How can you even sue FB for suspending your account? Isn't that the definition of frivolous?

Oh yeah, France.
It doesn't really matter what adjective you choose to apply to the plaintiff or the case. If it's something that is protected by the law in your country, why the hell shouldn't the dude do it (and facebook get away with it)?
    
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post #40 of 86
Quote:
Originally Posted by Majin SSJ Eric View Post

How can you even sue FB for suspending your account? Isn't that the definition of frivolous?

Oh yeah, France.

The suit was for censorship.

Quote:
Originally Posted by Mand12 View Post

I'm sorry, but you do not have a right to a Facebook account. Facebook does get to decide whether you have an account or not, and they can close it whenever they feel like it for any reason or for no reason.

I made no comment on FB being a right. I was responding to the question regarding whether or not the suspension of a FB could be harmful. I even bolded it in the quote, I dunno how much more clear I could have been.


Quote:
Originally Posted by BeerPowered View Post

Plus posting a picture of a famous painting is grounds for copyright infringement, unless he had permission.

Well that's a pretty general assumption. I don't know what the copyright laws are in France but here in the States that painting would not likely have any copyright because of it's age. Also, depending on the context of the post, it may even be perfectly legal with a copyright protected work.
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