But, I think that these TOS ‘agree’ buttons, are sort of like unto
‘WAIVERS’.
But, I always sort of have my own ‘TOS’ that I am thinking of,
and they are sort of my own philosophies.
*For one thing, the service providers usually do not provide me with space, so I can let them know what I think.
*Another thing is, that I think they would not let me use their services sometimes, if I tell them what my thinking is.

But, I usually want to use their services, and yet I do not really want to be bound up by TOS.

And, what if I said ” I will go along somewhat with TOS, but not unto the death, nor unto severe or extreme persecutions and/or tortures’???
Yet, TOS and WAIVERS in various areas do seek to bind men up completely and entirely; even unto tortures and death.
(waivers get used in health care, to release people from accountabilities; where afflicted are coerced into these matters)

At what point in time, can users ‘waive’ the fact that they clicked on the agree button??

And, signing a ‘waiver’ is almost like ‘committing suicide’, but I think it is sort of like being ‘murdered’ or ‘martyred’.
I am not suicidal. Nor do I want to be murdered/martyred.
Rather, I think TOS and waivers come from persons seeking to avoid their own accountabilities to the law.
And, that is unlawful.
If I am not suicidal, and I do not want to be murdered, then I am not Jesus.

Finally, the issue of “avoiding class-action by choosing arbitration”. As pointed out to me by Benjamin, the arbitration costs are actually quite high in contracts that require a full three-judge arbitration panel. Let’s just say that arbitration clauses at least make the costs “predictable”. There are many reasons to avoid taking cases directly to court, and in a worldwide game setting choosing a reasonable arbitration method makes it predictable. There might be a peripheral “effect” of reducing class actions, but to this point those cases mainly address CA law and being a TN lawyer would not even hazard a guess.

Can a user modify a TOS?

For example, once a user clicks the “I Agree” button, and then proceeds “to play”, whay cannot a user send an email to the company stating that “In consideration of my continued participation in [name of game], we both agree that the TOS agreed to on [date] has been modified as follows [modification terms].”

Would not the user’s continued participation, for example in SL, provide legal consideration for the modificaiton as their “commodity” seems to be the number of registered users that frequent and return thereby giving them presence and value in their marketplace. Perhaps that same consideration is applicable across games.

Mutual assent, that is the company’s acceptance of the user’s modified terms, would seem to occur by the company’s receipt of the modification and then continuing to allow the user to gain access thereby accepting the user’s contribution to the success of the game (i.e., without users, games might exist, but have no commercial value).

I suppose the company would argue that they weren’t aware of the modification because they don’t / can’t read all emails sent them; however, applying the same principles as have been applied to those that click “I agree” without reading the terms but are deemed bound, why wouldn’t the company too be bound by receipt of an email which announces both the modification and confirms it by the user’s actions (accessing the game again). It is at essence, that same quantum of communication and conduct that courts have repeatedly upheld in favor of the company in determining whether there has been assent by the user that simply clicks “I agree”.

In games where the TOS is periodically modified and for a paying user that already owns assets in the game, to get to those assets, the user must again click I agree…. well, that doesn’t strike anyone as legally equitable. Especially for this class of users, seems the law would have to carve out an exception (which eventually may swallow the rule) providing that for such a class of users, a modification sent by the user to the company would be legally binding on the company, especially whether it affected affected that user’s previously owned assets.

Just a thought…..

Marc
http://secondlife.typepad.com

Willl there be further analysis in these articles of the survivability of a TOS in light of their implicit attempts to avoid class action suits?

Also, what success can an in-game arbitration have without enforceability, or is the only method of enforceability to be seen to be of one of banning or suspension? If the game developer is not a party to the in-game arbitration, but instead intends to ignore it, then what practical purpose does / can it serve? And lastly, without some objective memorialization of the issues presented at the arbitration, and the rules applied, how can a community trust that the in-game arbiter’s decision was just?

Even a RL arbitration provides only the game developer with positive benefits; again one of secrecy. Arbitrations do not lead to or provide the involuntarily committed community with the ability to truly understand the issues, know what the decision maker standards or rules to be applied to the issues are to be, or develop a historical and comprehensive set of decisions for the community to review so it can understand as a community just what the “community” may be.

Regarding the SL new arbitration provision, can it withstand a legal challenge in a class action lawsuit setting? For example, there have recently been numerous comments by EC players re: SL’s new VAT policy. I don’t know EC law; however, the posters strongly suggest there is some notice / posting requirement in connection with assessing a VAT tax. In SL’s case, could the EC players at large file a class-action suit applying California law and invalidate the SL arbitration provision because it does not provide for class actions, but at first blush, seems instead to preclude it?

Looking foward to future articles.

Marc Bragg

When a ToS/EULA says ‘fictional currency’, how legitimate is that – and where?

The matter of Avatar based arbitration may be Interesting as an article by itself.

The thing is, that both forum and choice of law are examined by the court you filed your claim at. Meaning that if I, as an Israeli Citizen, chose to file proceedings against Blizzard here, Blizzard will have to come here, and challenge the my claim for Lex Loci Delicti and Lex Fori prior to granting it an injunctive relief and requesting me to state my claim in Delaware.

The Israeli courts take adhesive contracts’ request for Arbitration and for Forums as problematic and tend to avoid enforcing them.

But this doesn’t apply only in Israel. Think of what will happen in Germany, where its contracts of adhesion law (and copyright) is harsher than in the US. would the choice of forum apply there? I’m not sure.

And I don’t want to know what will happen when a Chinese will challenge this clause in a China court…