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.
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.
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?
>> 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.
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.
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 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?
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.
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).
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:
> 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.”
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.
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.
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.
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.
> ...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.
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.
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.
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.
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."
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.
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.
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.
Readit News
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.
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.
Dead Comment
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.
> 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?
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.
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.
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?
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).
Not sure if food safety is a human right, but access to food is probably mentioned somewhere, no?!
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.”
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.
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.
We're all screwed. SCOTUS isn't going to help, and Corporate America knows it. This legal trend is only going to expand.
I never imagined that my habit would protect me from being abused by companies in the real world, though. Bonus!
“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.
> 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.
"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."
https://www.disneyplus.com/legal/subscriber-agreement
Or better, have your own lawyer write you an arbitration agreement.
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.
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.
It's a scam to be avoided when at all possible.