In case folks aren't aware, Disney tried to avoid an allergy-related wrongful death lawsuit from a restaurant at Disney Springs (large publicly available outdoor mall that doesn't even require tickets) because a couple had a Disney+ streaming trial:
>they clearly would have tried to use it in any situation where they had potential liability.
That's just how lawyers work. They'll try to invoke any defense that's vaguely applicable, just like any plaintiff lawyer will try to invoke any cause of action that's vaguely applicable, like the plaintiffs in this exact case.
The TOS argument was so awful it deserves some kind of bonus loss, but let's put that aside for now.
Let's say I paint a fence, and my neighbor complains I ruined a particular segment that shouldn't have been painted. Why can't I argue that this segment was on my property and that my neighbor gave permission to use that paint on all segments on their property?
Let's say there's a 15% chance the survey was wrong about the fence location, and a 15% chance the court disagrees with how I'm interpreting the agreement. If I can use both arguments I have a 2% chance of losing, which seems fair to me. Both arguments are reasonable, so why should I have to risk it on only one?
In case folks aren't aware, Disney tried to avoid an allergy-related wrongful death lawsuit from a restaurant at Disney Springs (large publicly available outdoor mall that doesn't even require tickets) because a couple had a Disney+ streaming trial:
https://www.bbc.com/news/articles/c8jl0ekjr0go