
Dropbox Developer Terms and Conditions - Paul-ish
https://www.dropbox.com/developers/reference/tos
======
Paul-ish
It looks like the HN title was changed. To clarify, I posted this to point out
that an arbitration clause was recently added to the terms.

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pktgen
Dropbox's ToS for their file storage service also has an arbitration clause:
[https://www.dropbox.com/privacy#terms](https://www.dropbox.com/privacy#terms).

> We Both Agree To Arbitrate. You and Dropbox agree to resolve any claims
> relating to these Terms or the Services through final and binding
> arbitration by a single arbitrator, except as set forth under Exceptions to
> Agreement to Arbitrate below. This includes disputes arising out of or
> relating to interpretation or application of this "Mandatory Arbitration
> Provisions" section, including its enforceability, revocability, or
> validity.

------
eganist
Lawyers willing to opine:

> 14.5. NO CLASS ACTIONS. Developer may only resolve disputes with Dropbox on
> an individual basis and will not bring a claim in a class, consolidated or
> representative action. Class arbitrations, class actions, private attorney
> general actions, and consolidation with other arbitrations are not allowed.

Is this exact thing what's being considered in some of the more recent Supreme
Court cases? [https://www.npr.org/2017/10/06/555862822/no-class-action-
sup...](https://www.npr.org/2017/10/06/555862822/no-class-action-supreme-
court-weighs-whether-workers-must-face-arbitrations-alon)

~~~
DannyBee
Lawyer here.

Some of those cases are about the NLRB's authority, not anything else. I
didn't look up all of them. Past that so, as far as i know, attempting to
waive class arbitration is untested against an explicit state policy, and i
have doubts it would survive.

The only case about this so far is whether class action arbitration waivers
are enforceable in general in the face of it being "too expensive" to
arbitrate individually (no state law, etc, was at issue here), and the answer
is "yes, they are enforceable". This is not surprising, these kinds of
straight policy arguments rarely are winners in court. A state law would
instead be a preemption issue.

It's one thing to say "you must arbitrate", which is clearly covered by the
Federal Arbitration Act. That is why state laws that attempt to ban such
clauses are preempted.

However, there is nothing that i'm aware in that act (though admittedly, it's
been a while since i looked at the act), that preempts state laws prescribing
the _form_ of arbitration.

Thus, a state law saying "arbitration is awesome, but banning class
arbitration is against our public policy", if they exist, should be valid.
Preemption must be very clear.

Again, it's been a while, but when they were first preempted, states mostly
did _not_ have such laws on the books (IE they found required arbitration to
be against public policy, and that was preempted by the FAA. They did not have
laws that said that banning class arbitration to be against public policy)

Of course, if someone knows of a part of the FAA that explicitly allows
prescribing the form of arbitration, then yeah, everyone is gonna lose.

Funny story: most of the places that pushed so hard for required arbitration
had clearly not thought through the consequences. They still haven't, AFAICT.

I remember having lunch with one of the counsel at EBay and some other
companies about a year after the original supreme court ruling on class
actions, and he was very happy they could require arbitration (they got a lot
of nuisance suits, to be fair to them), and asked me why Google didn't require
arbitration (Note: I'm not legal counsel for Google, i haven't been involved
in Google's TOS in years, blah blah blah)

I pointed out that class action/courts generally at least required a licensed
lawyer to maintain and work on the suit, which was expensive, whereas
arbitration could be done by lay people, and that he was essentially betting
that nobody could make it cost effective to have a paralegal or someone manage
fifty arbitrations at once, or a class arbitration.

I suggested that was probably a bad bet. I still believe it to be a bad bet.
(It hasn't changed a lot because the other side of this is still fighting to
the death instead of considering new business models. They are very much not
used to dealing in volume)

~~~
pktgen
> I pointed out that class action/courts generally at least required a
> licensed lawyer to maintain and work on the suit, which was expensive,
> whereas arbitration could be done by lay people, and that he was essentially
> betting that nobody could make it cost effective to have a paralegal or
> someone manage fifty arbitrations at once, or a class arbitration.

This depends on the state. Some states still consider that to be unauthorized
practice of law, even in arbitration.

Even if a law firm wants to manage hundreds of individual arbitrations,
finding individual people to opt in makes that very difficult. In consumer
cases, the harm to individual consumers is often very small. The law firm
would have to advertise to those consumers somehow and those consumers would
have to take the time to opt in and give individual attention to the
minimally-valued case - just not very practical or scalable.

~~~
DannyBee
"This depends on the state. Some states still consider that to be unauthorized
practice of law, even in arbitration."

This is almost certain to be challenged eventually, and those states will
lose.

------
varenc
interestingly, you can opt-out of the arbitration clause in the next 30 days
by emailing here: developer-terms-opt-out@dropbox.com

------
joering2
Initial application, still worth reading:
[https://www.ycombinator.com/apply/dropbox/](https://www.ycombinator.com/apply/dropbox/)

Personally I'm disappointed Drew (still a CEO) would agree on these changes,
but hey! with $1 billion dollars in pocket I assume he doesn't have to care
about what anyone says anymore.

~~~
xyzabc123
What about these changes do you think he'd not agree to?

------
joshmn
I'm guessing this has to do with them filing for their IPO.

~~~
fortythirteen
Yup, plan on something not very favorable to their dev community coming out
when they go public.

~~~
sillysaurus3
Hmm, like what?

~~~
fortythirteen
I'm going to guess something having to do with their revenue model, probably
around data sharing.

------
soufron
Good luck to apply it internationaly...

~~~
gtirloni
Suing Dropbox from overseas will be quite a challenge for developers too.

~~~
JorgeGT
Dropbox International Unlimited Company appears to be based in Ireland, and
thus subject to EU law.

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QAPereo
Binding arbitration is societal and legal poison, and must be killed. I
strongly encourage everyone in the mean time, to opt out ASAP!

Edit: At least you’ll be in court, or part of class action, rather than stuck
in their arbitration system!

 _For example they can use it to argue that sending an opt-out mails indicates
that you have read the clause. It also indicates that you have read the TOS in
general. It also indicates that you agreed to the rest of the TOS. Etc etc._

Edit 2: It doesn’t, it implies that you read this thread, or their
announcement.

~~~
TekMol
I would expect that if you send the opt-out mail that will weaken your
standing in court. Everything you give the other side makes the other side
stronger and gives them more vectors to argue and attack.

For example they can use it to argue that sending an opt-out mails indicates
that you have read the clause. It also indicates that you have read the TOS in
general. It also indicates that you agreed to the rest of the TOS. Etc etc.

~~~
pktgen
Quite simply, if you fail to opt out, you will have almost no chance at all of
successfully fighting the arbitration agreement. Period. The Supreme Court
precedent leaves little room for dispute on this point. So yes, everyone
should follow the instructions and opt out.

~~~
TekMol
Nothing in court is simple. It's always humans arguing with humans. Also, the
examples you gave in other parts of this thread were from very different types
of contract then this one.

------
brndnmtthws
Given that nobody reads these things anyway, how enforceable are they? People
just click 'Accept' and continue doing whatever they want.

~~~
stickydink
Very enforceable. You clicked accept, you accepted. If you didn't read it,
that's on you.

According to the American Bar Association's wording on "Best Practices for
Ensuring Enforceability" [0]

> _There is a check-box that users must click adjacent to an affirmation
> similar to, “By clicking on the box, you are indicating that you have read
> and agree to the Terms of Use”;_

> _The webpage is designed so that if the user does not check the box
> manifesting assent to the terms, the user cannot proceed in the
> transaction;_

> _In addition to a check-box that users must click, the terms of use are
> available either in a nearby scrolling text box or a nearby hyperlink;_

> _Any hyperlink of the terms is obvious, e.g., “Terms of Use” is underlined
> and has decent size lettering and visible coloring (not small lettering and
> not obfuscatory coloring);_

> _Any hyperlink of the terms has a central or obvious location on the
> webpage, e.g., the hyperlink is directly below the “I Agree” button (not
> relegated to the bottom of the webpage, which would require the user to
> scroll down to a submerged portion of the webpage);_

> _Any hyperlink of the terms immediately displays the terms (instead of
> requiring the user to click on a series of hyperlinks to view the terms);_

> _The terms of use are evident in every webpage on the website (rather than
> visible on only one webpage), in addition to requiring users to attest that
> they have read the terms of use;_

> _The terms are in readable font (at least 12 point); and_

> _The agreement contains all requisite elements of an enforceable contract
> (e.g., consideration, sufficiently definite material terms, etc.).58_

[0]
[https://www.americanbar.org/publications/communications_lawy...](https://www.americanbar.org/publications/communications_lawyer/2015/january/click_here.html)

~~~
brndnmtthws
Seems absurd to me. Companies could claim they put whatever they want in that
text and the burden of proof would lie with the end user.

~~~
sigstoat
> Seems absurd to me.

i'm really interested; what do you think the alternative is?

would you be happier if you had to mail in a signed copy of the contract?

~~~
wfo
You are very correct, the fundamental problem here is not that people don't
read the EULA, it is that the world "agree" is not meaningful in this context,
there is no equitable power relationship between you and the company you are
"agreeing" with, they can insert any demand they wish and you have no ability
to negotiate or power in the discussion. You should not have to read the
EULAs, because companies should not be allowed to require that you waive your
fundamental rights like this as a precondition of using their service. If you
have a right to sue but every company can demand you waive it before you
interact with them, you actually have no right at all.

If mandatory arbitration is allowed, the right to sue does not exist. You
cannot have one but not the other.

~~~
sigstoat
> they can insert any demand they wish and you have no ability to negotiate or
> power in the discussion

you have no ability to negotiate because they have something you want, and
you're unwilling to give them anything they might want. would a meaningful
fraction of the population pay even $1/mo to receive better contractual terms
on their dropbox account?

without looking at it, i expect that the terms for S3 look quite a bit better.

> You should not have to read the EULAs, because companies should not be
> allowed to require that you waive your fundamental rights like this as a
> precondition of using their service

whoa there. there's allll sorts of stuff that can go into a contract besides
waivers of "fundamental rights", that you'd really not want to agree to willy
nilly.

~~~
wfo
>you have no ability to negotiate because they have something you want, and
you're unwilling to give them anything they might want. would a meaningful
fraction of the population pay even $1/mo to receive better contractual terms
on their dropbox account?

Yes, you've accurately described the power relationship in the contract
"negotiation" and how it allows exploitation and abuse.

>whoa there. there's allll sorts of stuff that can go into a contract besides
waivers of "fundamental rights", that you'd really not want to agree to willy
nilly.

Agreed, I was being hyperbolic. You should of course read EULAs (though
there's an argument to be made that they should be required to be streamlined,
or expressed in plain-language and short)

But you don't have to check the EULA for a "slavery clause" that promises you
and your children in eternal servitude to the company, similarly you shouldn't
have to check to see if you are giving up other fundamental rights.

