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Sunday, July 26, 2020

They're at it again

Patreon changes its terms for the second time in less than three weeks.
Dispute resolution

To summarize: If you have a problem please talk to us, but you are limited in how you can resolve disputes. You waive your right to trial by jury and your right to participate in a class action proceeding.

We encourage you to contact us if you have an issue. If a dispute does arise out of these terms or related to your use of Patreon, and it cannot be resolved after you talk with us, then it must be resolved by arbitration. This arbitration must be administered by JAMS under the JAMS Streamlined Arbitration Rules and Procedures, except as expressly provided below. Judgment on the arbitration may be entered in any court with jurisdiction. Arbitrations may only take place on an individual basis. No class arbitrations or other other grouping of parties is allowed. By agreeing to these terms you are waiving your right to trial by jury or to participate in a class action or representative proceeding; we are also waiving these rights.

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.

This clause does not limit either party’s ability to file an action in a court with jurisdiction to seek injunctive or other equitable relief for disputes relating to intellectual property, proprietary data or to enforce this dispute resolution clause, including your agreement not to assert claims related to the suspension or termination of another person’s account. In any such action, the court rather than an arbitrator must decide whether such a claim is arbitrable and must decide whether the party is entitled to the requested injunctive or other equitable relief.
This is rapidly threatening to move beyond comedy into farce... they just keep digging the hole deeper. Remember, these are the legal geniuses who, in the full knowledge that they had waived their right to participate in a group action, filed not one, but TWO group actions.

They also don't seem to grasp that the relevant terms are those at the time that the event concerned took place, not when the legal action is taken. Also, they appear to have completely blown off their duty to notify their users of these changes, so if you're a Patreon user, be sure to keep your notification emails from them and note how many days after the effective date it is.

It's more than a bit strange how they keep trying to defend their deceptive practices by engaging in more of them. But it should be entirely clear to everyone at this point that if you're desperately trying to change the rules again and again, you're obviously not winning the game.

Labels: , ,

47 Comments:

Blogger Section 8A July 26, 2020 3:55 PM  

"...including your agreement not to assert claims related to the suspension or termination of another person’s account. In any such action, the court rather than an arbitrator must decide whether such a claim is arbitrable and must decide whether the party is entitled to the requested injunctive or other equitable relief."

As an armchair lawyer, with 15 minutes of practice in the legal field under my belt, I see the language here that basically says 'we don't want what is happening to happen any more so it won't happen again and we can't get bad things happening to us anymore'.

That's my expert legal opinion.

Blogger John Bradley July 26, 2020 4:00 PM  

Perhaps if they keep changing their TOS every week or so, they might accidentally get them right at some point, through sheer happenstance.

And then they'll change them again, being idiots.

Blogger Canadian Warlord July 26, 2020 4:07 PM  

Either their legal counsel is giving them ultra-bad advice to extract the maximum blood from a dying animal, or they have ignored their lawyers and embraced the power of their own snarkuments.

Is this what self-assured denial of reality looks like when applied to corporations? It's usually reserved for mental hospitals and sulking bratty children.

I like where this is going!

Blogger Ferdinand July 26, 2020 4:20 PM  

I don't know much about US law, but CAN you actually waive your right to trial? It is pretty fundamental for most law systems that the right to sue is pretty hard to get rid off.

Blogger Noah B. July 26, 2020 4:23 PM  

Quite often clients refuse to listen to the professionals they've hired, and when that happens it can be difficult for an outside observer to tell whose fault it is.

Blogger pyrrhus July 26, 2020 4:27 PM  

Not to mention the legal principle that a party can't change the terms of a contract without the assent of the other party...Patreon's attorneys are probably relatives of some honcho there...

Blogger furor kek tonicus ( The Surprised Pig hadn't had any idea he tasted this good ) July 26, 2020 4:27 PM  

VD
It's more than a bit strange how they keep trying to defend their deceptive practices by engaging in more of them.


standard Cluster B behavior.

rules are for people too stupid to figure out how to evade them.

the problem for the Cluster B neuro-deviant being, that they usually have a grossly over inflated view of their own intellectual capabilities.

and once their mark has dispensed with their default High Trust Assumption of interpersonal relations, it's really not that hard to figure out what the Cluster B is up too.

whereas the Cluster B just continues jumping up and down on that button because, gosh darn it, it worked the last 50 times i tried this.

in other news, the actual musical genius of Fleetwood Mack has passed:
https://www.youtube.com/watch?v=9GPR848mhIs

Blogger cecilhenry July 26, 2020 4:27 PM  

AS a non-legal expert, it appears their policy changes by the week serve to exemplify their now realized deficiencies and failures in previous and ongoing legal cases with undesirable outcomes.

They seem to be telegraphing their passes, after an illegal man downfield violation.

Blogger Kraemer July 26, 2020 4:39 PM  

I think you can if you replace it with something like arbitrations. Bc there has to be a way to redress grievances

Blogger doctrev July 26, 2020 4:42 PM  

if you're desperately trying to change the rules again and again, you're obviously not winning the game.

Which applies to much more important games, as well. It's the reason absolutely no one should be surprised or demotivated by the all-out suicide attempt most major cities are indulging in.

Blogger Silent Draco July 26, 2020 4:52 PM  

Er, WHAT notification of a TOS change?

My estimate is down to 76 monkeys and 5 refurbished Apple IIs to replicate the TOS and poo-flinging.

Blogger SirHamster July 26, 2020 4:56 PM  

Ferdinand wrote:I don't know much about US law, but CAN you actually waive your right to trial? It is pretty fundamental for most law systems that the right to sue is pretty hard to get rid off.
Arbitration couldn't exist without the ability to agree to not use the courts.

Blogger Joe Smith July 26, 2020 4:59 PM  

Are... are they retarded?

Blogger WilliamT July 26, 2020 5:06 PM  

I was just on there, and there was a popup message they sent as you arrive or navigate through their website while you're logged in.

It seemed in line with that previous email going on about 'clarification' and such, glossing over what it actually is, not a fundamental change to your rights or the agreement, but I didn't manage to grab a screenshot.

No email yet, this popup might be their delivery system. If someone could grab it, I missed my chance it seems.

Blogger NewTunesForOldLogos July 26, 2020 5:11 PM  

What if I don’t agree “not to assert claims related to the suspension or termination of another person’s account.”? Perhaps my main motivation in joining patreon was to secure the ability of my favorite creator to counting receiving money through sites like Patreon?

Blogger Teek Lor July 26, 2020 5:16 PM  

You can now argue that they knew, all along, the class suits were wrong- otherwise, why the need for the sudden carve out now. Supplemental brief to court

Blogger Teleros July 26, 2020 5:21 PM  

This clause does not limit either party’s ability to file an action in a court with jurisdiction to seek injunctive or other equitable relief for disputes relating to intellectual property, proprietary data or to enforce this dispute resolution clause, including your agreement not to assert claims related to the suspension or termination of another person’s account. In any such action, the court rather than an arbitrator must decide whether such a claim is arbitrable and must decide whether the party is entitled to the requested injunctive or other equitable relief.

IANAL & all that, but this paragraph stinks of, oh what's that phrase again? "Unconscionable contract" I believe it is. I'd be surprised if either JAMS or the courts let such a thing fly, given that, as I read it, Patreon is claiming the right here to engage in tortious interference without giving you any ability to seek redress.

Wonder what the odds are on Patreon surviving its encounter with the Bears is now :) ...

Ferdinand wrote:I don't know much about US law, but CAN you actually waive your right to trial? It is pretty fundamental for most law systems that the right to sue is pretty hard to get rid off.

If you agree to go to arbitration then yes. Of course if the arbitrators are corrupt then the regular judicial system can get involved to ensure fair proceedings and such (assuming said judicial system is working correctly, of course).

Blogger Doktor Jeep July 26, 2020 5:38 PM  

Does not bode well for the system that these people even get anything other than laughed out of court.

Blogger lowercaseb July 26, 2020 5:43 PM  

when Patreon finally goes under...right before they type in COVID-19, can they also mark "Mauled by Bears"

Blogger rikjames.313 July 26, 2020 6:00 PM  

"including your agreement not to assert claims related to the suspension or termination of another person’s account"

Wut?

I think it is very likely the equity partner graduated in 1997 (all partners after his class are income only)

Jimmy White was the article 2A reporter at the last seminar he went to in 2005, and told them you can do pretty much whatever you want in a clickwrap agreement. I was at one of those seminars and everyone nodded when he said it.

He also went to a seminar in 2003 that said under the FAA you can force everything into arb and weight it your way.

So he is yelling this at the diversity, 4th gen wasp, and gods chosen income partners and senior associates, and they nod and do it.

The guy that actually knows the law was hired through their employee leasing company. He has 5 years doing real law and graduated from a top 20 school. But he is white and not a legacy wasp, so he can look at the calendar and knows he is fired at the 26 week mark, in 8 weeks, so he smiles internally and does what they say. Hopefully the cash he stacked up is enough to get him through the start up for his collection or bankruptcy firm he has planned out. Either way, screw these guys

Blogger Wayne July 26, 2020 6:41 PM  

Farce is right. Patreon's crack legal team thinks the company ToS supercedes the law.

Blogger justaguy July 26, 2020 6:45 PM  

The problem with the Bears is already in the can, what they want to do is prevent round 2 with others. It will be harder than they think but... the main rule of life is "The Stupid will be punished".

Blogger mrpinks July 26, 2020 6:56 PM  

Time for another deceptive practices push?
Loving the books and the replatforming.
Peace be with you, the ride never ends.

Blogger Yukichi Sensei July 26, 2020 6:58 PM  

Evolutionists are not right when they say monkeys with enough time could reproduce Shakespeare, as proven by any decently aware person, or this terms of service.

The only thing worse than picking court or arbitration, is saying "We force you into arbitration, but talk to us first to hurt your case, and if we do not like it, then we can sue in court."

Blogger thechortling July 26, 2020 7:08 PM  

That's what happens when mom and dad repeatedly tell you you're amazingly smart and wonderful and it doesnt matter that you came in dead last in science bowl, the spelling bee and all your college prep classes... you're just smart in other ways that academics and achievements don't recognize.

They just don't understand your genius. Silicon Valley is full of idiots who have never been put to the test and if recently graduated from big U's ...probably never had anything like a challenging professor. If they did, a couple of safe space visits and talks with faculty HR set everything straight.

Blogger Xellos July 26, 2020 7:31 PM  

Patreon lolyers hard at work.

Blogger tdcommenter July 26, 2020 8:13 PM  

@24 free discovery on their part.

Blogger map July 26, 2020 8:19 PM  

Silicon Valley had a good depiction of Silicon Valley lawyers:

https://www.youtube.com/watch?v=M1Wl91bnAMI

Blogger My 1 millionth internet profile July 26, 2020 8:32 PM  

@7 - A more appropriate song for Patreon, also by a Fleetwood mac alum:

https://www.youtube.com/watch?v=X6JDZjoTgF0

Blogger eclecticme July 26, 2020 8:32 PM  

@15. NewTunesForOldLogosJuly 26, 2020 5:11 PM
What if I don’t agree “not to assert claims related to the suspension or termination of another person’s account.”? Perhaps my main motivation in joining patreon was to secure the ability of my favorite creator to counting receiving money through sites like Patreon?


Good question.

I think VD has been in the weeds on this so long he does not realize we do not understand the ramifications of the changes in language.

Assuming the events happen after the changes in the TOS, is Patreon home free? Will the TOS prevent end users/subscribers from entering into arbitration for cancelling another user? With the changes can a subscriber bring an action in court now relating to the cancellation of another's account? What courts? Could a subscriber file in gopher junction NE now since they cannot arbitrate?

Can a company enforce a contract term saying you cannot sue or arbitrate?

Blogger Canadian Warlord July 26, 2020 8:57 PM  

After thinking about this, maybe they updated their TOS to win a public relations campaign. "Look how crazy these Nazis are, their complaint doesn't make sense when you read our terms of service!" Thus would work on the majority of college grads out there, who won't conceive of the idea that the rules changed.

In the right (wrong) circumstances a PR battle can lead to changes of laws to comply with public opinion. This happened in Canada with C-51, where the prosecutor (likely after seeing the evidence against them) leaked details to convict the defendant in the court of public opinion. The rage over such a "turn" as an innocent man walking free, whom _everyone_ knew was guilty, allowed the laws to be changed so this "can't happen again."

This case is not as widely known. But I do wonder if C-51 set a mental precedent for the left - that reality can be changed easily if you can convince enough people that black is white... for example.

Blogger Reader July 26, 2020 9:19 PM  

Did you ever expect these globopedohomo servants of Satan to play fair and respect the rule of law? They only know cheating, extortion, corruption and their goal is to destroy that which is true, beautiful, and good.

There is only one answer to these soulless creatures, and God will provide it. One day. In the meantime we keep fighting because to submit is to become one of them.

We were on our evening walk not too long ago, and I looked up to see twinkling stars through a thinly clouded sky. Amidst this COVID mass hysteria and rampant mob thuggery, I felt like Sam in Mordor when he looked up as the noxious miasma parted to reveal the beauty of the night sky, and noted that there is still beauty that no evil can touch.

Blogger Jeroth July 26, 2020 10:01 PM  

Aren't their ten days about up now? Or was the judge being loose with that allowance?

Blogger SirHamster July 26, 2020 10:57 PM  

eclecticme wrote:Assuming the events happen after the changes in the TOS, is Patreon home free? Will the TOS prevent end users/subscribers from entering into arbitration for cancelling another user? With the changes can a subscriber bring an action in court now relating to the cancellation of another's account?
Patreon would not be home free, because there are a multitude of legal rights that users have that Patreon's behavior is interfering with. The arbitrations are about a subset of those violated rights.

Per Vox, the LLOE has a number of legal arguments up their sleeve, which would be based on other legal rights that Patreon has violated.

Patreon's TOS cannot give them the power to tortitiously interfere or cancel all of their users' rights.

Note that "related to the cancellation of another's account" is Patreon's attempt to reframe the dispute. Patreon is pretending they can do anything they want, so accepting their language is self-defeating.

"related" is very vague. The arbitrations aren't about Patreon canceling Owen's account. It's about Patreon interfering with a contract between Owen and his patrons. It's related to Patreon canceling Owen's account, but that doesn't mean Patreon can use a vague definition of "related" to prevent arbitration.

NAL, so whether the TOS would allow suing Patreon in court, maybe. But it costs more money, which gives Patreon a legal advantage since they have fulltime lawyers and the average patron doesn't.

Can a company enforce a contract term saying you cannot sue or arbitrate?
Contracts are enforced by the courts according to the law. A contract saying you cannot sue or arbitrate is claiming the court has no power over the contract, which the courts would not accept or enforce.

Blogger My 1 millionth internet profile July 26, 2020 11:06 PM  

Can a company enforce a contract term saying you cannot sue or arbitrate?

Anyone who's dealt with lawyers and judges and other bureaucrats will know they don't take too kindly to citizens, even corporate citizens, telling them to mind their own business. Courts may agree that a case is not under their jurisdiction, but that's not the same thing as being told by an outside party that it isn't. Patreon seems to be learning this lesson the hard way with the current judge they drew.

Blogger furor kek tonicus ( The Surprised Pig hadn't had any idea he tasted this good ) July 26, 2020 11:17 PM  

22. justaguy July 26, 2020 6:45 PM
The problem with the Bears is already in the can, what they want to do is prevent round 2 with others.


the problem with your hypothesis that these changes are merely prophylactic to future suits is the fact that Patreon has ALREADY used post hoc changes to TOS to argue for the existing arbitrations to be thrown out.

now, while that has yet to be demonstrated for the latest round of summary TOS edits, that's mostly because Patreon hasn't gone back to court yet.

Blogger Lance E July 26, 2020 11:29 PM  

It's weird, they seem to actually believe that by saying "we can change these conditions at any time", they can make the changes retroactive.

Even if they literally put in the contract that they could make retroactive changes, it would be unconscionable and no court would respect it.

But they can't really believe that, can they? I keep thinking it must be gaslighting, because nobody could be that stupid...

Blogger Nostromo July 26, 2020 11:39 PM  

Patreon ToS plagerized from Calvinball.

Blogger JamesB.BKK July 26, 2020 11:41 PM  

They are working to contain the next and later waves. The Noticing is ripening.

Blogger JamesB.BKK July 26, 2020 11:56 PM  

serve to exemplify their now realized deficiencies and failures in previous and ongoing legal cases with undesirable outcomes.

This is alas the essential purpose of contracts : in view of past experiences including of others. Just not experiences that are ongoing absent agreement of both or all sides. Patreon is in a consumer facing business but tried and still tries to avoid the natural consequences of that, some of which can lead to extinction of the firm or the wipe out of its equity positions and some debt claims in Chapter 11 Rehabilitation, assuming in the latter case the firm is considered worthy of survival. It is trying to wriggle free from a trap of its own making. It could fairly easily get closer to that goal by undoing the action complained of. Nemesis meet Hubris?

Blogger TiredPoorHungry July 27, 2020 12:01 AM  

Does the Sandman have a patreon account?
Wish I could help you but without female jurors/judges to woo I'm at a complete loss.

Blogger TiredPoorHungry July 27, 2020 12:25 AM  

Every case is different. My twin brother was facing disaster after his case gained noterority from a headline in the local rag tititled "Something Sinister in Batavia" whats worse his prepaid lawyer failed to show up at the trial and my Bro went Bro Bono.
A little back story seems in order. My brother was brushing his newly rescued pooch when he hit a tangle and got nipped by the large young dog. Reflexes kicked in and bowser got popped in the head and yelped. Luckily the neighbor next door with the 3 rescued greyhounds saw the whole thing. I arrived shortly after for the 4th of july party to see my bro cuffed and splayed over the cop car hood.
Yada yayda yadya
And thats when my brother interrupted her testimony to blurt out.... Am I the only here who is wondering whether she was wearing those coke bottle glasses while she was washing her hair in the sink?
Standing O, case dismissed.

Blogger JamesB.BKK July 27, 2020 12:27 AM  

all partners after his class are income only

"Partners" - in name only if they do not share in all profits or losses whether generally or on a limited non-management basis and thus definitionally "limited partners" - are not partners. It is deceptive to hold out otherwise.

Blogger Servant July 27, 2020 5:23 AM  

@Canadian Warlord

Bratty immature mental patients describes ninety percent of the tech industry so...

Blogger Valtandor Nought July 27, 2020 6:35 AM  

I'm not a lawyer, but the reading I've done around the subject would suggest there are three things here that are unenforceable. Ouster clauses, which attempt to deny the courts jurisdiction without providing an alternative that is satisfactory to the courts; purporting to allow one side to alter a contract with retrospective effect, thus denying all other parties to that contract certainty as to their contractual rights and obligations; and attempting to exclude or limit liability for intentional torts.

All such clauses would likely be found contrary to public policy and not enforceable by the courts, or for that matter by a competent arbitrator.

Blogger Avalanche July 27, 2020 8:23 AM  

@34 "gives Patreon a legal advantage since they have fulltime lawyers"

Not with the fulltime lawyers they already seem to have!! It's kinda like saying 'that guy has good protection against rioters because he has TWO NERF guns,' is it not?

Blogger Tars Tarkas July 27, 2020 10:14 AM  

I can't wait for the spectacle of the supposedly right wing gammas who dedicate half of their waking hours to hating Owen react to this.
The latest claim is that Owen was going to rip off his Patreon supporters by offering to settle for 3.5 million and not tell them about the settlement and that would be somehow bad, even though Owen getting paid was the entire point of the whole exercise.
They cheer on Patreon because they think it will make Owen Butt-hurt. They hate Owen so much that they cheer on the people who hate them.

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