Comment by will_brown | Hacker News Reader

Comment by will_brown | Hacker News Reader

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It would be interesting to see this legal arguement unfold with FB...I just think the problem is FB unilaterally modifying the terms.

In other words FB saying we are going to now start providing you with X services and you are going to give us Y data.

Sure the user might benefit from X, obviously even that could be argued, but the idea is this isn’t a bargained for exchange/negotiation. This is unilateral modification without consideration, it’s not enough for FB to say they modified the data collection/rights which is justified because FB also changed the service.

That’s like saying you ordered a cheese pizza for $10, the company unilaterally charges you for $1,000 and justifies that because they bring you 100 pizzas...at no point was there consideration for the modification of the agreement even though you got 100 pizzas. Similarly can FB just start collecting more data/selling to third parties by unilaterally changing their terms and justify it by saying a unilateral change in service equals legal consideration?

> That’s like saying you ordered a cheese pizza for $10, the company unilaterally charges you for $1,000 and justifies that because they bring you 100 pizzas...at no point was there consideration for the modification of the agreement even though you got 100 pizzas. Similarly can FB just start collecting more data/selling to third parties by unilaterally changing their terms and justify it by saying a unilateral change in service equals legal consideration?

I don't think this is quite a fair comparison. Let me rephrase it and tell me if you still think its illegal (unethical, sure, but illegal):

You subscribe to a pizza delivery service that sends you 1 pizza a month for $10/month. After a few years, they decide to up the minimum subscription to 100 pizzas a month for $1000 (or maybe even $500, there's probably some reasonable economies of scale arguments to be made about FB). They send an email notifying all customers of the ensuing upgrade, and a few months later you start getting charged 50x more and getting a whole lot more pizza than you want.

That's still probably not a good thing to do, and I wouldn't fault you for calling FB shady if they did that. But I'm also not at all certain that that action is illegal, especially from a strictly contract law perspective.

It sounds very similar to the subscription radio case cited in the ABA article I linked:

>in Knutson v. Sirius XM Radio, 771 F.3d 559 (9th Cir. 2014), the terms regarding an automobile’s trial subscription to a satellite radio service were sent to the owner a month after the purchase of the automobile in an envelope marked “Welcome Kit.” The Ninth Circuit refused to enforce the additional terms because there was no mutual assent to the terms. The Ninth Circuit found no evidence that the purchaser of the automobile knew that he had purchased anything from Sirius or was entering into a relationship with Sirius, let alone had agreed to the terms (which contained an arbitration clause). Therefore, continued use of the service by the purchaser did not manifest assent to the terms.

Not exactly on point, and there are other such cases cited in the article that support enforceability...but it’s all going to come down to nitty gritty facts (for example another case found the terms of the change in price were buried in page 4 of an invoice; therefore, unenforceable).

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