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back to article Dropbox erects sueball shield with new T&C and privacy legalese

Grumpy with Dropbox? Forget sueing the company, which is trying to keep you from your lawyers with its new Terms of Service document effective as of March 24th, 2014. Dropbox has been progressively notifying its customers of its new rules over recent days. Your correspondent received an email yesterday, but legal blog Lawyerist …

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Divide and conquer

When Standard Oil was crushing everything and everyone who stood in its way, it was originally thought of as "good" for the consumer. S.O. lowered prices for users and made LOADSAMONEY for its investors.

The commercial terms it drew up for anyone it dealt with tended to be by diktat (take it or leave it - BTW, if you leave it, forget about doing business with anyone else) and rather one-sided in setting out who got the benefits.

It was only when things got so extreme that the US government stepped in and broke the outfit into smaller pieces.

We can see parallels with the Ts & Cs that a lot of the larger internet players are forcing on their customers. A lot of them are so big that, in practice, there is little in the way of alternative suppliers. They are also so big that their legal beagles can effectively call the shots unless and until a complaint gets appealed to state level (by which time the complainant has probably run out of money, anyway).

I suppose in a capitalist state (the Internet, not just the US), this sort of behaviour is inevitable. After all, there are no laws in virtual-land and business is very one-sided. It's just so sad that after S.O. and it's many copy-cats (e.g. IBM, Microsoft) that such situations are still permitted to develop. Even though we can all see, in hindsight, that they are bad ideas™.

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Not totally unreasonable...

The first point mentioned, about "if you're unhappy, tell us first" seems perfectly reasonable and sensible, so long as they actually try and sort things out. And banning class actions? Well, class actions seem to be something devised by the American legal system to ensure that lawyers get very rich (sorry, that should be "even richer than they already are"), and generally have nothing to do with getting 'justice' for the plaintiffs. Arbitration? Fundamentally a good idea - but a bit limited geographically.

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WTF?

Law is a mystery to me

For instance, I never understood how it is possible to put in a contract a clause banning class actions. I would have thought that it was not possible to stop your customers from using the full power of the legal system against you… Otherwise, what's the point of a legal system?

It's a wonder they don't simply say "you agree not to sue us, ever".

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Re: Law is a mystery to me

Illegal clauses are unenforceable. There's bound to be a way to overturn that.

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Re: Law is a mystery to me

Unfortunately the US supreme court has already judged that such waivers are legal.

This is to protect weak, poorly funded multi-nationals from being held to account by the ruthless self-interest of well funded citizenry (I may of got this wrong).

Remember according to Judge Roberts, businesses are people too :)

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Re: Law is a mystery to me

> the US supreme court has already judged that such waivers are legal.

I doubt that the SCOTUS has ruled that illegal terms (such as "you can never sue us") in a ToS are enforceable. If anyone has a reference showing this to be the case I'd love to see it.

And even if that is the case (which wouldn't really surprise me with the present corrupt and partisan SCOTUS), that means nothing in the UK. Local & EU law still applies.

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Re: Law is a mystery to me

In in AT&T Mobility v. Concepcion rulled in 2011 the supreme court ruled in a 5-4 decision that consumers may not band together in class-action arbitration to pursue their complaints.

What that means in practical terms is companies, by putting such a clause in your terms of service, they can stop people taking out a class action.

Now class actions are a American phenomena that allowed numerous small affected parties to band together to take on a multinational. It does not ban sueing but makes it very much harder because the plaintiff has to take on the costs and effort themselves rather than combining with other affected parties. Lawyers are also less likely to take it on a no win-no fee basis because the amounts to be one on a individual basis would be far less than in a class action.

Whether people outside the UK are affected probably depends on where Dropbox are incorporated. Imagine a scenario that Dropbox drops the ball on security and allow anyone to access your private data, you maybe quite miffed and wish to get restitution. In the past you maybe able to band with other affected parties and bring a case in the States. Now this clause says you need to through arbitration first which puts the barriers far higher.

P.S I'm not a lawyer so don't take this as legal advice.

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@ hammarbtyp Re: Law is a mystery to me

Barring class actions is a double bladed sword.

While the judgements against the company will be smaller, the fact is that if enough of the smaller cases win, then the odds of later cases winning will be greater and evidence from an earlier case will be available for the other lawyers to use.

The downside with class actions is that only the lawyers win. They get the big payday.

Trying to force arbitration is also not a bad thing.

What's interesting is the following... looking at what their product does... why would they take this draconian position?

I mean what could happen that would force a class action lawsuit against them?

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Re: @ hammarbtyp Law is a mystery to me

"While the judgements against the company will be smaller, the fact is that if enough of the smaller cases win, then the odds of later cases winning will be greater and evidence from an earlier case will be available for the other lawyers to use."

Often class actions are taken over relative small amounts. Normally the chance of winning anything that covers the lawyers costs is very small. The cost and difficulties of undertaking such legal recourse will put most people off. This is why class actions were so good since allowed many people to claim, Companies can tie decisions in courts for years. Ebven if the court does come down on a plaintiff the likelihood it will be appealed.

"Trying to force arbitration is also not a bad thing"

Sounds good, but what form will the arbitration take? Is the arbitration run by independent body? are the results legally binding? Does going through arbitration preclude other forms of redress?

I'm betting that any arbitration will be loaded on the companies side.

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Re: Law is a mystery to me

It should cut both ways - if business are people as well they should also be subject to criminal prosecution. Shareholders to electric chair?

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Dripbox

Deleted!

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Re: Dripbox

Or dropped into the box marked rubbish.

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Anyone recommend a paid for alternative that's as easy to use? (Just have to convince all the file manger app makers that I use to support it).

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I would suggest BitTorrentSync, everything remains yours, there is no middle man, no limits and hopefully no NSA, GCHQ etc....

BitTorrentSync

Takes about 1 minute to set it up. I can't vouch for how well it works on mobile because I only use it between PCs,Laptops.

Forgot to mention that is it free.

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Well, there's stuff like SugarSync, Seafile, OwnCloud and so on. These are free (as in cost) and some are free (as in freedom). So you could roll-yer-own.

OR

You could simply pay someone to roll it for you, provide support etc.

OwnCloud, for example, has companies with paid-for offerings.

Pick whichever scratches your itch best.

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Paid alternative

@ James 51

One.com's Cloud Drive is fine for me.

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Anonymous Coward

question

"“If you are not a Dropbox for Business user but interact with a Dropbox for Business user " - how does Dropbox notify the non-"Dropbox for Business user" of this before allowing her/him any access whatsoever to the material in question, and get his/her consent to this clause prior to any access at all (even something as basic as a file listing) ?

As for "“The arbitration will be held in the United States county where you live or work, San Francisco (CA), or any other location we agree to.” - sorry guys, I'm in the UK and therefore the EU. Either make your service such that is is unavailable in the EU or to any EU citizens, or comply with our rules about jurisdictions: if you make the data available in the UK and I want to sue you in the UK, I can. Doesn't matter what your T&Cs say, especially if they are manifestly unfair (or US centric).

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Re: question

"Either make your service such that is is unavailable in the EU or to any EU citizens, or comply with our rules about jurisdictions: if you make the data available in the UK and I want to sue you in the UK, I can. Doesn't matter what your T&Cs say, especially if they are manifestly unfair (or US centric)."

I think it goes even further than that. According to UK contract law (the EU has nothing to do with it in this case) a contract that contains unfair T&Cs cannot be enforced. Saying that you can only bring legal action in the US courts (which are prohibitively expensive even for 'Merkins) can only be deemed to be unfair, so cannot be enforced.

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Re: question

A recent case in Scotland would oppose this view. Plaintiff was trying to get people details from trip advisor for a bad review. Scottish courts deemed the jurisdiction of Scotland unenforcable when the data was held in the US.

It is not necessarily the contract that is the issue but the enforcable jurisdiction that will cause the hiccup.

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Re: question

That's a little different.

that case said you couldn't jurisdiction shop for libel. Where somebody sues an American magazine in Britain because the libel is easier.

Here dropbox are offering a product in the Eu they have to obey Eu rules. I can't make a drug in Liberia, sell it in Britain and claim that if there are any side effects they can't sue me because it meets Liberian safety regs

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What a waste of time effort and money

ust saying. They are not above the law.

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And I want a pony.

Companies can put any crap they want in their ToS and shrinkwraps -- and by golly do they ever! -- but even in todays corporatist world their terms do not trump law.

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Anonymous Coward

Evaluation of new terms

Everyone will have to evaluate the terms for their own requirements, especially business users. But, broadly, I take the following approach with Dropbox:

1) Encrypt everything in Dropbox automatically using Boxcryptor

2) Make periodic local backups of everything in Dropbox

That way Dropbox just becomes a convenient sync tool, replaceable by something else quite quickly and I remain largely in control. If they screw up then my data is safe from being accessed in Dropbox, it's safely available out of Dropbox too, and rather than interact with them I can simply evaluate an alternative and replace them.

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This has no effect outside of the US, the UK courts have said time and time again your welcome to put whatever nonsense you want in T&C's but the court will just ignore them if they go against what the law says a consumer is allowed to do or expect. A lot of other countries have the same outlook and so they will have limited success getting anywhere with this one.

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Unfair Contract Terms

That's why in the UK we have the Unfair Contract Terms Act. One of the protections it offers is to automatically negate any term in a set of standard terms and conditions which erodes your statutory rights.

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Re: Unfair Contract Terms

It doesn't invalidate the entire contract?

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Happy

Always reminded

Of a time I was bored at work and started reading the ToS for some program or another, been to long and I cant remember what it was now. About 5 or so pages into the ToS there was something along the lines of:

Your actually reading this? You didn't just click accept like everyone else? Ok good, just please don't pirate the program if you like it, we spent time making it and ask that you support us if you like the program other wise its free to do with what you wish

Then it went back to the normal legalese. Wish I could remember where I saw that now but its been a long time.

Pretty sure that companies would have less pissed consumers if they followed this tactic but then how would the Lawyers get paid?

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Anonymous Coward

ownCloud

This is another reason I have setup ownCloud. Maybe a bit slow running on the Raspberry Pi I had laying around, but as is and the old 320GB Seagate drive I am using only cost me $150 all up, I think it does the job well enough.

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Facepalm

I'd like to see them try...

...and inforce those illegal T&Cs in the UK. Good grief. Thank Noodles we've got decent consumer / contract legislation here (if little else decent).

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Dropbox quality of service ..

What quality of service does Dropbox undertake to provide in its terms of service. What undertaking do they give to not provide your 'private` documents to third parties?

'To the fullest extent permitted by law, dropbox and its affiliates, suppliers and distributors make no warranties, either express or implied, about the services. The services are provided "as is." we also disclaim any warranties of merchantability, fitness for a particular purpose and non-infringement`

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Splash slurp

The software majors complained (directly to POTUS IIRC) that the NSA was pissing in their soup. Those outside the US would chose non-US hosting, routeing, and software to escape the NSA's polite attention, they said.

This sounds a bit like Dropbox is pissing in its own soup. (Just as GCHQ is pissing in the UK industry's Brown Windsor.)

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