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Friday, December 20, 2019

This certainly looks promising

I was alerted by several readers about some recent changes at a certain social technology company. After review by some of the LLoE members, a consensus conclusion was reached.

Item One: Patreon has new terms of use. But the effective date is more than a little... odd. I've never seen anything like it. Neither had anyone else.

Effective immediately for users joining Patreon on or after December 20th, 2019. Effective for existing users on, and applicable to claims not yet asserted by, January 1st, 2020.

Item Two: Patreon follows the JAMS policy on Consumer Arbitrations, which, as a California corporation, it is required to do.

For creators and patrons who are consumers, we also follow the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness for consumer arbitrations done under these terms. For the purpose of an arbitration subject to the consumer standards, if any portion of these terms do not follow that standard, that portion is severed from these terms.

Item Three: Patreon doesn't understand how California law applies to consumer arbitrations or the JAMS policy it claims to follow. That, or they're hoping against hope that no one else does.

You may not bring a claim against us for suspending or terminating another person’s account, and you agree you will not bring such a claim. If you try to bring such a claim, you are responsible for the damages caused, including attorneys fees and costs.

Item Four: JAMS, however, does.

In California, the arbitration provision may not require the consumer to pay the fees and costs incurred by the opposing party if the consumer does not prevail.

Conclusion:
Patreon already has a pretty good idea they are going to lose. Badly.

Labels: ,

50 Comments:

Blogger Ursa Delta December 20, 2019 8:00 PM  

The ride never ends, but it sounds like the conductor just changed gears for the hill coming up.

Blogger Matthew Baker December 20, 2019 8:01 PM  

Fascinating to watch this develop. Thank you.

Blogger Ska_Boss December 20, 2019 8:08 PM  

I can't tell if these provisions were written by lawyers or SJW affirmative action hires.

Blogger Christian Gone Fishin' December 20, 2019 8:17 PM  

The gamma lies to cover his weakness...

Patreon: (in Big Bear's Rothschild voice) "B-b-b-but our terms of service! Our PRECIOUS terms of SERVICE! We're just TRYING to be a good platform for creators by being directly hostile to the creators on our platform!"

Blogger Chief_Tuscaloosa December 20, 2019 8:33 PM  

This must be what it was like to be a Russian artilleryman behind his fortification when the charge of the light brigade was commencing: "are they...uh, seriously? No WAY! Oh, please please please keep coming."

Blogger Marcus D December 20, 2019 8:34 PM  

Here come the post-Jan 1 deplatformings they already have planned. They're hoping that conflict of laws issues will work in their favor. Or they're complete idiots.

Blogger Shane Bradman December 20, 2019 8:38 PM  

The strategy to tackling Patreon is very clear. I hope they take down the replatforming account and dig themselves into a hole.

Blogger Gallant December 20, 2019 8:41 PM  

(Within the bounds of operational security if you can answer) - is this an attempt to impose an SJW/deplatforming model that, while prior users are grandfathered or they may lose prior cases, can be sustained for future creators or members? Is this a TOS that could have protected their past actions?

Blogger furor kek tonicus ( no need to be racist, Ratchets can Karen better than anybody ) December 20, 2019 9:10 PM  

i always did love EULAs written in explicit contradiction of the Law.

Blogger Kiwi December 20, 2019 9:24 PM  

I commend their wordage bluff attempt, but yeah sucks to be them.

Blogger Wario's Mart December 20, 2019 9:24 PM  

Damn it's good to see people of will and intelligence acting against these companies.

Blogger James Dixon December 20, 2019 9:27 PM  

"They had learned nothing and forgotten nothing.”

Blogger VD December 20, 2019 9:28 PM  

is this an attempt to impose an SJW/deplatforming model that, while prior users are grandfathered or they may lose prior cases, can be sustained for future creators or members?

Yes.

Is this a TOS that could have protected their past actions?

Not even a little bit. It violates both the state law and the arbitration rules. It may also violate federal arbitration law.

Here come the post-Jan 1 deplatformings they already have planned.

No, it's not about that. It's a defensive measure, not an offensive one.

Blogger Kiwi December 20, 2019 9:35 PM  

@ Shane Bradman

Only reason I signed up.

Can't catch fish without bait in the water.

Blogger roundeye December 20, 2019 9:55 PM  

Walk them into deep water, let them drown...about the third rule of fighting. Let them into the process, let them express themselves...strike.

Blogger anorganicbear December 20, 2019 10:05 PM  

Great news if this means there will be more replatforming arbitrations against Patreon after they implement these policies.

Blogger Doktor Jeep December 20, 2019 10:24 PM  

It's afraid

Blogger Lazarus December 20, 2019 10:33 PM  

IF I make any money on this it is all going to Unauthorized.tv

Unless it is a million bucks, in which case I will take a cut.

Blogger J Van Stry December 20, 2019 11:02 PM  

Patreon also gains non-revocable and non-exclusive rights to anything you post on it forever.
Their terms are a bit excessive.

Blogger Ominous Cowherd December 20, 2019 11:12 PM  

Conclusion: Patreon already has a pretty good idea they are going to lose. Badly.
One way to preserve themselves from damage would be to simply not jerk people around, not violate their agreements.

Of course, that's just crazy talk. They'll never try that approach.

Blogger Jim the Curmudgeon December 20, 2019 11:49 PM  

"Not even a little bit. It violates both the state law and the arbitration rules. It may also violate federal arbitration law."

What's the strategy here for Patreon? Did their corporate counsel just miss this? Are they hoping that 85% of potential disputes will involve people who won't dig into the issue?

Having worked in Silicon Valley for a while, I have never much been impressed with corporate counsel at tech firms. The patent lawyers and VC-types struck me as competent, but that's about it. However, one would think that Patreon would run something like this by external counsel.

Blogger P Glenrothes December 20, 2019 11:51 PM  

It's not difficult to find knowledgeable people who are willing to speak the truth and enlighten their audience. It is remarkably rare though to find one who is also ready, willing and able to take some skulls. ELOE

Blogger FUBARwest December 20, 2019 11:56 PM  

When they sent the email about an updated TOS, Owen and the LLOE was the first thing that came to mind. Glad to hear it won't mean anything in the end and that they are quite possibly breaking the law.

Keep bouncing that rubble.

Blogger jarheadljh December 21, 2019 1:30 AM  

Jim the Curmudgeon wrote:"Not even a little bit. It violates both the state law and the arbitration rules. It may also violate federal arbitration law."

What's the strategy here for Patreon? Did their corporate counsel just miss this? Are they hoping that 85% of potential disputes will involve people who won't dig into the issue?


Having never been involved in a corporate lawsuit and only one workers comp claim which was settled three hours before the first hearing, and having looked around a fair bit at what happened to other people, it seems to me that the corporate legal strategy is always to bluff&posture. Deny all claims and you will discourage 75% of people from looking around for an attorney to challenge it. Then offer a lowball first offer, and maybe even for the second offer. It's really just an elaborate haggle aimed specifically at avoiding seeing the inside of a court room, and like any other strategy of mediocrity, it works on volume but it cannot stand against even decent pushback.

Blogger Gregory the Tall December 21, 2019 2:53 AM  

Who owns Patreon? They might not know enough about this yet to start sacking senior managers.

Blogger Bernard Korzeniewicz December 21, 2019 3:09 AM  

Every day.
Open eyes and open Vox Populi.
Good news every time.

Blogger JamesB.BKK December 21, 2019 4:19 AM  

There are more than a few ways to attack and avoid an arbitration requirement imposed on a plaintiff.

Blogger Duke Norfolk December 21, 2019 5:58 AM  

Yes. I think they've always counted on being "big and scary" and thus avoiding the real battle completely. "Everyone knows you can't do battle with a big corporation, as they have lawyers out the wazoo." Etc.

It really is good to see someone effectively do battle with them. Kudos.

Blogger Silent Draco December 21, 2019 6:16 AM  

Related item: IndieGoGo updated their TOS; email was sent a out 3 hrs ago.

After reading three times, it appears that items 2-3 are negated by item 4. I need to re-read the whole Patreon TOS with a stronger pot of coffee.

Blogger Gregory the Tall December 21, 2019 6:31 AM  

@27 JamesB.BKK
Could you tell us about these ways, please?

Blogger Sargent.matrim December 21, 2019 6:46 AM  

So if I'm reading this right, this would like a man getting his wife to sign a contract saying he could beat her if she burnt the toast. But this would never hold up in court. So it's a dumb contract.

Blogger VD December 21, 2019 7:04 AM  

So if I'm reading this right, this would like a man getting his wife to sign a contract saying he could beat her if she burnt the toast.

It's actually more akin to a man getting his wife to sign a contract saying that he could rape her sister if she burnt the toast, including his unilateral right to define what "burnt" meant.

Blogger Sargent.matrim December 21, 2019 7:13 AM  

They really do have very bad lawyers then. This is fascinating to observe.

Blogger jkmack December 21, 2019 7:25 AM  

This is why I joined UATV, not for a stupid stream, i would pay 10 times more, if I had to go to random pigeon roosts in a 4 county area to try and catch a pigeon with a thumb drive taped to its leg, that may or may not have a stream recorded on it in the past 12 months. I joined UATV to give Owen and Vox a stable base of income to do this, to kick ass and chew bubble gum. Carry on.

In fact I had lent some monetary support to a certain musical artist that supposedly did work with gold leaf, that has recently been freed up, that will be going to feed the bear a little extra salmon, what with the new mouth to feed, this year.

crush harder faster stronger.

Blogger Gregory the Tall December 21, 2019 7:42 AM  

VD wrote: It's actually more akin to a man getting his wife to sign a contract saying that he could rape her sister if she burnt the toast, including his unilateral right to define what "burnt" meant.
... not to mention that he would also be allowed to rape all here other female and male friends of any age. Also the man would reserve the right to eat the burnt toast or destroy it otherwise.

Blogger Azure Amaranthine December 21, 2019 7:42 AM  

"i always did love EULAs written in explicit contradiction of the Law."

There's another kind?

Blogger JamesB.BKK December 21, 2019 7:56 AM  

*... attack and maybe avoid ...

Blogger Avalanche December 21, 2019 8:21 AM  

After reading this blog post last night, I awoke this morning recognizing the astonishing similarity between these corps -- and the House of Reps! The Dems are making up rules and procedures, and breaking rules and laws, whenever and however they wish, so long at it seems to them like it might achieve their goals ... and pretending it's legal and ethical. Both are blindly clinging to their desire to make things go their way, and not seeing anyone around them...

Are lib/Dems more gamma or more snake?

Blogger James Dixon December 21, 2019 10:26 AM  

> Are they hoping that 85% of potential disputes will involve people who won't dig into the issue?

More like 99.9%. Most people never even read the TOS.

> Glad to hear it won't mean anything in the end and that they are quite possibly breaking the law.

They're not actually breaking the law until they attempt to enforce the TOS. This is sort of like announcing that you intend to break the law when it becomes convenient.

Blogger James Dixon December 21, 2019 10:28 AM  

> Related item: IndieGoGo updated their TOS; email was sent a out 3 hrs ago.

"...to comply with the California Consumer Privacy Act (CCPA)."

Blogger Ominous Cowherd December 21, 2019 11:05 AM  

Jim the Curmudgeon wrote:What's the strategy here for Patreon? Did their corporate counsel just miss this? Are they hoping that 85% of potential disputes will involve people who won't dig into the issue?
If a contract says you give up all your rights, some people are going to be told that's what the contract says, and give up. It's stupidly, obviously bogus, but MPAI, so since it costs nothing to put it in, you put it in. It only has to work once to more than pay for itself.

It's stupidly, obviously bogus, so: ``... if any portion of these terms do not follow that standard, that portion is severed from these terms.

Blogger furor kek tonicus ( no need to be racist, Ratchets can Karen better than anybody ) December 21, 2019 1:12 PM  

32. VD December 21, 2019 7:04 AM
It's actually more akin to a man getting his wife to sign a contract saying that he could rape her sister if she burnt the toast, including his unilateral right to define what "burnt" meant.



your ideas intrigue me and i wish to subscribe to your newsletter.


36. Azure Amaranthine December 21, 2019 7:42 AM
There's another kind?



you can imagine that i spend far too many days appropriately excited.

Blogger Balam December 21, 2019 2:21 PM  

It warms my heart to think that Q's words, that these people are stupid, turn out to be so true.

Blogger Silent Draco December 21, 2019 6:08 PM  

James Dixon, that's the next rabbit hole to check, seeing where TOS and statute collide. Family has priority this week, though.

Blogger Akulkis December 21, 2019 8:34 PM  

@20

"One way to preserve themselves from damage would be to simply not jerk people around, not violate their agreements."

(((Some Groups))) don't believe there is any such thing as an agreement that lasts even a minute longer than it takes for (((them))) to dream up some way to either gain more, or alternatively, screw you. The concept of mutual benefit as a goal for long-term repeated business seems to be entirely beyond their comprehension.

Blogger Ominous Cowherd December 21, 2019 11:51 PM  

Like I said, Akulkis, not lying, cheating and stealing is crazy talk - for (((them))). Not just (((echos))), either. I think the idea that one's word is good is strictly a Western Civ. thing. Definitely not Chinese, for example.

Blogger Azure Amaranthine December 22, 2019 1:51 AM  

" I think the idea that one's word is good is strictly a Western Civ. thing."

It's about either fidelity or honorability. China has the concept of "Face" deeply ingrained for reputation and social hierarchy, but the backside of that is the belief that if no one pertinent finds out about something, it doesn't matter. Some other Asian cultures are much better due to emphasis on honorable behavior which takes into account what you know of yourself in addition to what society thinks. A person can harm their own dignity even if no one else would recognize it.

Blogger Blip1222 December 23, 2019 4:16 AM  

Having selected California law they're going to have a real problem with unconscionability. Contracts are unenforceable in CA if they're both procedurally and substantively unconscionable. This is procedurally unconscionable - it's a contract of adhesion, in other words, it's take it or leave it and it is written by a more powerful party. It's also probably substantively unconscionable (one-sided in favor of the more powerful party)- the attorney's fees provision is one-way, you are required to indemnify them but not vice versa, you waive all claims against them but they don't waive anything against you. Probably they have properly delegated the threshold question of arbitrability to the arbitrator but that's about all they've done right. An arbitrator can decide the question whether a contract is unconscionable under CA law and thus unenforceable in its entirety. Also they would arguably be violating the CLRA (Consumer Legal Remedies Act) which specifically bars the inclusion of unconscionable provisions in contracts. That's California Civil Code 1770(a)(19). And of course under CLRA claims the consumer is entitled to their attorney's fees which an arbitrator could award if they are the one to decide that claim. That's 1780(e). In sum this is a badly written contract that probably subjects them to far more liability than they were exposed to in the first place.

Blogger VD December 23, 2019 4:34 AM  

In sum this is a badly written contract that probably subjects them to far more liability than they were exposed to in the first place.

You nailed it. Precisely.

Blogger JamesB.BKK December 23, 2019 11:28 AM  

Any potential treble damages availability for unfair and deceptive rare practices?

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