This is especially important, and I don't see anyone else here (at the moment of posting this) calling this out. This is a disastrous precedent to set for consumers, because it means that even though you are agreeing to terms on the date of the sale, those same terms of the sale can be changed on a moments notice and still affect you, without your knowledge or consent. It's a shame that he has to keep fighting this, but I would assume (edit: I should say, I really, really hope) that this decision will eventually be overturned.
Frankly that should make it entirely unenforceable. I’m very confused by the judges choice here, other than “it’s too hard and it’s easier to apply it here” which is a pretty crappy standard.
He made some purchases on the old ToS and some on the newer ToS. So he did agree to forced arbitration on the bulk of his transactions. That's not saying that the first transactions should be grouped in (or that forced arbitration should ever happen) but this isn't just a company changing the ToS later without him ever agreeing.
>The question is, was he made aware, that his previous agreement will be changed when he was giving some more money?
Any new pledge could easily have a little tickbox "I've read and understood the terms & conditions", I'm not sure if Kickstarter has one but I've seen such boxes pop up everywhere.
The simple solution is we need to ban all ToSs and EULAs. Make it a crime to try to enforce them on users, one that results in mandatory prison time (else companies will still use them to scare consumers, same as the warranty void if removed stickers).
We need a library of standard contract terms (so that every time you buy a thing you don't need to read a new contract, and to prevent shafting either side on the deals).
We also need those contracts to be much simpler. A single page of large font in language simple enough for a grade school graduate to understand what's supposed to happen.
Yes, a few rights are better protected then in the US (at least if you haven't written the EULA in the right way), but I'm pretty sure they are generally legal and enforced.
You have to agree to the retroactivity and the new changes.
The argument here is that he did when he made a ton of new pledges under the new agreement.
Even if the judiciary comes to its senses about the earlier purchaces, it's still a bait-and-switch for the later purchases. They can't claim that these were commodity purchases. Having spent a sum on one game, the next decision about where to spend on games is not a symmetric one.
Thing is, small claims court doesn't set precedent generally, it is purely for cheaply and quickly resolving small dollar disputes without the need to hire a lawyer and pay significant court and filing fees.
The other side of this is small claims cases aren't going to get a thorough review like they would traditionally, thus some cases have the wrong ruling made. Since the claim was dismissed without prejudice, it could be refiled iirc.
Read the actual case, not the review of it. I suspect the judge is relying upon the fact that the money was not paid in one lump sum. It is reasonable to believe that later payment constituted an acceptance of those new agreements, that they should apply to past monies too.
I have to wonder how companies can offer any kind of reasonable proof that it was an adult user who clicked through clickwrap, and not a wandering cat or a curious child.
If there is some degree of proof that he was involved in the transaction (e.g. credit card payments), if agreeing to the terms was a precondition it's unlikely enough that a wandering cat or a curious child clicked the "accept" button for there to be no reasonable doubt (unless he proves otherwise).
By the way, the hypothetic wandering cat or curious child that were to do so would risk of being liable of perjury :|
