Are any changes to the TOS a "contract of adhesion"?

I am not a lawyer, but I often find when a TOS changes in SL I feel a bit put upon because I have absolutely no choice but to accept the new terms. Given the amount I have invested in SL, I can not very well simply turn away and not accept.

It seems to me that this situation is what the whole point of "contract of adhesion" is meant for. When you are in a take it or leave it position, and one where you really have no choice but to take it, the law courts step in and help you out.

Just a thought. Hopefully the SL lawyers will take this to heart and be very mindful of any changes they put in the TOS going forward.

Also, for those interested, the text of the judicial decision regarding denial of the motions from LL are here:

http://www.secondlifeherald.com/slh/files/robreno_order.pdf

By using Second Life, you agree to these Terms of Service. If you do not so agree, you should decline this agreement, in which case you are prohibited from accessing or using Second Life. Linden Lab may amend this Agreement at any time in its sole discretion, effective upon posting the amended Agreement at the domain or subdomains of http://secondlife.com where the prior version of this Agreement was posted, or by communicating these changes through any written contact method we have established with you.


I dont think there is a single legal argument that anyone could place to that is there? Its the very first part of the TOS.. LL can amend the agreement at any time in its sole discretion,unfortunately, if you dont agree then SL isnt really for you... money invested or not.

As an aside, the Judge is basically saying the whole TOS is pretty much procedurally unconscionable:

“Bluelining” the Arbitration Agreement
Alternatively, Linden has offered to ameliorate the
one-sidedness of the TOS’s arbitration provision by suggesting
that Linden could waive the requirements for three arbitrators,
post the initial fees of arbitration, and agree to arbitrate in
Philadelphia instead of San Francisco. See Dfts.’ Sur-Reply Brf.
at 2-3 (doc. no. 2).
California law allows a court to “blueline” an
arbitration agreement to remove an element that renders it
substantively unconscionable. See Cal. Civ. Code § 1670.5(a)
(“If the court as a matter of law finds the contract or any
clause of the contract to have been unconscionable at the time it
was made the court may refuse to enforce the contract, or it may
enforce the remainder of the contract without the unconscionable
clause, or it may so limit the application of any unconscionable
clause as to avoid any unconscionable result.”). However, a
court is not obligated to blueline when an “arbitration provision
is so permeated by substantive unconscionability that it cannot
be cured by severance or any other action short of rewriting the
contract.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1293 (9th
Cir. 2006). Where an arbitration provision has “multiple defects
that indicate a systematic effort to impose arbitration on [the
plaintiff], not simply as an alternative to litigation, but as an
inferior forum that works to [the defendant’s] advantage,” and
-44-
there simply is “no single provision [the court] can strike or
restrict in order to remove the unconscionable taint from the
agreement,” the court can simply refuse to enforce the
arbitration provision. Id. (citing Armendariz, 6 P.3d at 696).
The arbitration clause before the Court is simply not
one where a single term may be stricken to render the agreement
conscionable. “The unilateral modification ‘pervade’ and
‘taint with illegality’ the entire agreement to arbitrate,
[and] severance of terms within the arbitration clause would not
cure the problem. Net Global Mktg., 2007 U.S. App. LEXIS 674, at
*9 (quoting Circuit City, 279 F.3d at 895 (citations omitted));
see also Armendariz, 6 P.3d at 697 (“[M]ultiple defects indicate
a systematic effort to impose arbitration on an employee not
simply as an alternative to litigation, but as an inferior forum
that works to the employer’s advantage. . . . Because a court is
unable to cure this unconscionability through severance or
restriction, and is not permitted to cure it through reformation
and augmentation, it must void the entire agreement.”).
Davis, 2007 WL 1394530, at * 15 (refusing to rewrite arbitration
agreement that contained four substantiviely unconscionable or
void terms because “[t]hese provisions cannot be stricken or
excised without gutting the agreement”). Bluelining in this case
will require the redrafting of the agreement.
The Court declines to rewrite the agreement, at
-45-
Linden’s request, to save an unconscionable arbitration provision
which Linden itself drafted and now seeks to enforce. Rather
than provide a reasonable alternative for dispute resolution,
this agreement compels a one-sided resolution of disputes between
the parties.
IV. CONCLUSION
For the reasons set forth above, the Court will deny
Rosedale’s motion to dismiss for lack of jurisdiction. The Court
will also deny Defendants’ motion to compel arbitration. An
appropriate order follows.

That seems to say they're rejecting the whole "arbitration agreement" which is still only one component of the TOS.

Well, if you read the judicial order you'll notice that he complains about the fact that LL can change the TOS at will because it's very one sided in favor of LL. My particular concern is that the time we have invested in SL is not easily switched to another provider, so we have zero ability to negotiate with new terms.

Hmm, perhaps you're right. Though, looking at the rest of the text, it seems that quite a bit of it is applicable to the TOS as a whole.

This is not the case. All TOS, conditions of contract etc, must comply with the law of the land. I see that one case already has ruled that a part of the TOS that was challenged was not enforceable.

In Britain, almost all of the SL TOS are unenforceable as they are against British contract law (and LL do have a presence in the UK). Under UK law, you may not draw up a contract which gives one party all the rights, and the other party virtually no rights.

Companies the world over are finding to their cost that their position of 'these are our rules, take them or leave them' is not so straightforward. Consumers have other rights, enshrined in National Law, which prevail over these sort of one-sided agreements.

Vi

I think it's called "lack of consideration" and is illegal in the US too.

I believe the standard counter-argument is: you didn't *have* to sign the contract, and if you think that the limited access to SL that you *do* get was worth signing the contract for, then that's plain evidence that you weren't that bothered by the lack of consideration.

Yes, most of us just click OK and never read the whole thing. I am guilty of it at least.

I don't for the life of me understand why the judge didn't read Bragg's press release where he admitted he never bothered to read the TOS, laugh, then say "case dismissed."

It appears the judge has already denied Philips motion to dismiss the case.

I don't really think this case has any concern with determining if Bragg read the TOS, only if the TOS are in fact in any way legally binding, specifically because of the 'take it or leave it' mentality they revolve around. Bragg is simply the first to bring this concern to litigation, regardless of the way in which he came to this conclusion that litigation was possible.

The TOS I agreed to when I first joined (for which I can find no link, since the SL History Wiki has been completely wiped clean of any previous TOS) has changed dramatically and frequently. The changes have been at times both subtle and world-changing.

One imagines by this time next year, they will be very very different. Whether this is going to be a good thing or not, maybe we'll finally have some better options then to simply 'take it or leave it'.

Linden Labs asked the court to enforce particular provisions of its contract. Courts, however, will not enforce illegal provisions of contracts.

I like the decision that the Judge wrote in the Bragg case. Its legal reasoning should prevail.

Regardless, I'm not confident that it will continue to prevail. It won't make Microsoft happy. Microsoft has the power and money to change the law to its liking. If enough cases go the way of Bragg's, you'll see the United States Congress passing a law legalizing the contract provisions the that Judge in Bragg's case found illegal.

And the irony will be as follows: Congress will pass a law legalizing things like the ever-changing terms-of-service without-remedy by silently burying that law in a bigger bill so that no one knows the law is even being considered until after its passed and too late. Just like the TOS changes on you without you realizing until too late.

Because an uneforceable provision in a contract doesn't automatically become enforceable just because the aggrieved party didn't read it.