Dropbox Developer Terms and Conditions

https://www.dropbox.com/developers/reference/tos

by Paul-ish • 9 years ago

88 55 9 years ago

Given that nobody reads these things anyway, how enforceable are they? People just click 'Accept' and continue doing whatever they want.

stickydink• 9 years ago

Very enforceable. You clicked accept, you accepted. If you didn't read it, that's on you.

According to the American Bar Association's wording on "Best Practices for Ensuring Enforceability" [0]

There is a check-box that users must click adjacent to an affirmation similar to, “By clicking on the box, you are indicating that you have read and agree to the Terms of Use”;
The webpage is designed so that if the user does not check the box manifesting assent to the terms, the user cannot proceed in the transaction;
In addition to a check-box that users must click, the terms of use are available either in a nearby scrolling text box or a nearby hyperlink;
Any hyperlink of the terms is obvious, e.g., “Terms of Use” is underlined and has decent size lettering and visible coloring (not small lettering and not obfuscatory coloring);
Any hyperlink of the terms has a central or obvious location on the webpage, e.g., the hyperlink is directly below the “I Agree” button (not relegated to the bottom of the webpage, which would require the user to scroll down to a submerged portion of the webpage);
Any hyperlink of the terms immediately displays the terms (instead of requiring the user to click on a series of hyperlinks to view the terms);
The terms of use are evident in every webpage on the website (rather than visible on only one webpage), in addition to requiring users to attest that they have read the terms of use;
The terms are in readable font (at least 12 point); and
The agreement contains all requisite elements of an enforceable contract (e.g., consideration, sufficiently definite material terms, etc.).58

[0] https://www.americanbar.org/publications/communications_lawy...

brndnmtthws2• 9 years ago

Seems absurd to me. Companies could claim they put whatever they want in that text and the burden of proof would lie with the end user.

detaro• 9 years ago

please don't use code formatting for quotes, use

this style instead

(surround the text with asterixes for italics)

Chaebixi2• 9 years ago

Haven't the courts put extra limits on the terms that are enforceable in click-through EULAs? E.g. a court would strike a click-through term where you "contractually agreed" to pledge Facebook all your current and future income in exchange for the ability to post photos of your cat.

jgowdy• 9 years ago

Which is funny because in the past and in other legal areas, a contract requires a meeting of the minds, requires that everyone have adequate representation available, etc. Yet with click through contracts you have none of that. You don’t even have any sort of validated identification of the party that supposedly “signed” the “contract.” You have lopsided terms that do nothing to create equity between parties or indicate that informed negotiation took place. It’s just one party dictating terms to another party, with the ability to rewrite those terms on a whim with some petty opt-out period.

EULA / TOS click wrap and shrink wrap licenses make a mockery of contract law out of convenience, transferring effectively what was supposed to be a reasonable agreement between two identified and informed parties and making it a completely one sided agreement dictated to one party, which nobody has actually identified until a claim arises.

The alternative is to not have license agreements. License agreements just end up including terms that companies wish they could change about the law but can’t. So instead of having to get politicians to ban reverse engineering, they just include it in their license. Instead of having to get policiticans to ban or limit class action lawsuits, they just force you out of the courts.

pktgen8• 9 years ago

Very enforceable, thanks to the GOP-stacked Supreme Court. See AT&T Mobility v. Concepcion (https://www.supremecourt.gov/opinions/10pdf/09-893.pdf) and Amex v. Italian Colors (https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf).

TillE• 9 years ago

It's a developer agreement rather than an EULA. Unless you're just a hobbyist messing around, you should definitely be reading those.

soufron• 9 years ago

Good luck to apply it internationaly...

gtirloni• 9 years ago

Suing Dropbox from overseas will be quite a challenge for developers too.

JorgeGT• 9 years ago

Dropbox International Unlimited Company appears to be based in Ireland, and thus subject to EU law.

joshmn• 9 years ago

I'm guessing this has to do with them filing for their IPO.

fortythirteen2• 9 years ago

Yup, plan on something not very favorable to their dev community coming out when they go public.

ProAm• 9 years ago

Favorable to shareholders.

sillysaurus3• 9 years ago

Hmm, like what?

mooreds• 9 years ago

Or just setting the developer program to be (more) favorable to the company.

zitterbewegung• 9 years ago

Yea, probably turning it off.

airfishey• 9 years ago

This was my first thought as well

varenc• 9 years ago

interestingly, you can opt-out of the arbitration clause in the next 30 days by emailing here: developer-terms-opt-out@dropbox.com

QAPereo2• 9 years ago

Binding arbitration is societal and legal poison, and must be killed. I strongly encourage everyone in the mean time, to opt out ASAP!

Edit: At least you’ll be in court, or part of class action, rather than stuck in their arbitration system!

For example they can use it to argue that sending an opt-out mails indicates that you have read the clause. It also indicates that you have read the TOS in general. It also indicates that you agreed to the rest of the TOS. Etc etc.

Edit 2: It doesn’t, it implies that you read this thread, or their announcement.

TekMol2• 9 years ago

I would expect that if you send the opt-out mail that will weaken your standing in court. Everything you give the other side makes the other side stronger and gives them more vectors to argue and attack.

Chaebixi2• 9 years ago

For example they can use it to argue that sending an opt-out mails indicates that you have read the clause. It also indicates that you have read the TOS in general. It also indicates that you agreed to the rest of the TOS. Etc etc.

You could point to this thread, and say "I read a NY Times article a few years ago that said arbitration was shitty Then I saw people saying 'email this address to opt out,' so I did." That statement could also be entirely accurate.

pktgen8• 9 years ago

Quite simply, if you fail to opt out, you will have almost no chance at all of successfully fighting the arbitration agreement. Period. The Supreme Court precedent leaves little room for dispute on this point. So yes, everyone should follow the instructions and opt out.

Paul-ish3• 9 years ago

Maybe someone could start a service that automatically opts them out from arbitration clauses. Extra nice if it will send snail mail for the TOSes that require snail mail opt out.

eganist• 9 years ago

Lawyers willing to opine:

14.5. NO CLASS ACTIONS. Developer may only resolve disputes with Dropbox on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

Is this exact thing what's being considered in some of the more recent Supreme Court cases? https://www.npr.org/2017/10/06/555862822/no-class-action-sup...

pktgen8• 9 years ago

Is this exact thing what's being considered in some of the more recent Supreme Court cases? https://www.npr.org/2017/10/06/555862822/no-class-action-sup.... -- but that's still being sussed out.

(Not a lawyer.) It's the same issue, but a different context. The issue currently before the Supreme Court is whether the National Labor Relations Act, which provides workers the right to unionize and engage in concerted activity, prohibits class-action waivers. The (eventual) outcome of that case will not be relevant to the Dropbox agreement at issue here, because the Dropbox agreement is not an employment contract.

joering22• 9 years ago

IANAL, but as far as I understand this is grey area and some courts/judges will see something like this differently, because there is a set of rules that courts find irrelevant whether you put them in your terms or not. For example, you can agree to the terms where point 1.2.3 says "you agree that our employee can break into your house in the middle of the night and strangle you to death". The mere explanation "they agreed on the terms" clearly will not suffice; furthermore courts have found that terms of service have to be reasonable that a sound person would have to agreed upon (sorry not enough time to find citations). Whether the judge will dismiss lawsuit because corporation told them "no in-court litigation" or not is really up to a judge and not a cover-them-all type blanket.

pktgen8• 9 years ago

Unfortunately, the GOP Supreme Court has made these arbitration agreements nearly bulletproof. What you've written makes a lot of sense and is how it should be, but judges now have very little leeway in not enforcing arbitration agreements. See AT&T Mobility v. Concepcion (https://www.supremecourt.gov/opinions/10pdf/09-893.pdf) and Amex v. Italian Colors (https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf). (Concepcion in particular originated from a California Supreme Court ruling that these agreements were unconscionable and unenforceable in certain situations.)

xphilter• 9 years ago

No. This waiver would be valid in court. The other cases deal with employee-employer relationships.

DannyBee5• 9 years ago

Lawyer here.

Some of those cases are about the NLRB's authority, not anything else. I didn't look up all of them. Past that so, as far as i know, attempting to waive class arbitration is untested against an explicit state policy, and i have doubts it would survive.

The only case about this so far is whether class action arbitration waivers are enforceable in general in the face of it being "too expensive" to arbitrate individually (no state law, etc, was at issue here), and the answer is "yes, they are enforceable". This is not surprising, these kinds of straight policy arguments rarely are winners in court. A state law would instead be a preemption issue.

It's one thing to say "you must arbitrate", which is clearly covered by the Federal Arbitration Act. That is why state laws that attempt to ban such clauses are preempted.

However, there is nothing that i'm aware in that act (though admittedly, it's been a while since i looked at the act), that preempts state laws prescribing the form of arbitration.

Thus, a state law saying "arbitration is awesome, but banning class arbitration is against our public policy", if they exist, should be valid. Preemption must be very clear.

Again, it's been a while, but when they were first preempted, states mostly did not have such laws on the books (IE they found required arbitration to be against public policy, and that was preempted by the FAA. They did not have laws that said that banning class arbitration to be against public policy)

Of course, if someone knows of a part of the FAA that explicitly allows prescribing the form of arbitration, then yeah, everyone is gonna lose.

Funny story: most of the places that pushed so hard for required arbitration had clearly not thought through the consequences. They still haven't, AFAICT.

I remember having lunch with one of the counsel at EBay and some other companies about a year after the original supreme court ruling on class actions, and he was very happy they could require arbitration (they got a lot of nuisance suits, to be fair to them), and asked me why Google didn't require arbitration (Note: I'm not legal counsel for Google, i haven't been involved in Google's TOS in years, blah blah blah)

I pointed out that class action/courts generally at least required a licensed lawyer to maintain and work on the suit, which was expensive, whereas arbitration could be done by lay people, and that he was essentially betting that nobody could make it cost effective to have a paralegal or someone manage fifty arbitrations at once, or a class arbitration.

I suggested that was probably a bad bet. I still believe it to be a bad bet. (It hasn't changed a lot because the other side of this is still fighting to the death instead of considering new business models. They are very much not used to dealing in volume)

pktgen8• 9 years ago

Thus, a state law saying "arbitration is awesome, but banning class arbitration is against our public policy", if they exist, should be valid. Preemption must be very clear.

Concepcion seems to make it very clear that such a rule would be preempted by the FAA. The nonsensical reasoning in Concepcion applies just the same if the rule invalidates class waivers specifically (that is, permits the arbitration agreement to be enforced but strikes only the part prohibiting class actions, which would result in arbitration proceeding on a class basis) as it does if the rule invalidates the entire arbitration agreement (as the CA Supreme Court rule did).

pktgen8• 9 years ago

I pointed out that class action/courts generally at least required a licensed lawyer to maintain and work on the suit, which was expensive, whereas arbitration could be done by lay people, and that he was essentially betting that nobody could make it cost effective to have a paralegal or someone manage fifty arbitrations at once, or a class arbitration.

This depends on the state. Some states still consider that to be unauthorized practice of law, even in arbitration.

Even if a law firm wants to manage hundreds of individual arbitrations, finding individual people to opt in makes that very difficult. In consumer cases, the harm to individual consumers is often very small. The law firm would have to advertise to those consumers somehow and those consumers would have to take the time to opt in and give individual attention to the minimally-valued case - just not very practical or scalable.

pktgen8• 9 years ago

Dropbox's ToS for their file storage service also has an arbitration clause: https://www.dropbox.com/privacy#terms.

We Both Agree To Arbitrate. You and Dropbox agree to resolve any claims relating to these Terms or the Services through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to Agreement to Arbitrate below. This includes disputes arising out of or relating to interpretation or application of this "Mandatory Arbitration Provisions" section, including its enforceability, revocability, or validity.

joering22• 9 years ago

Initial application, still worth reading: https://www.ycombinator.com/apply/dropbox/

Personally I'm disappointed Drew (still a CEO) would agree on these changes, but hey! with $1 billion dollars in pocket I assume he doesn't have to care about what anyone says anymore.

xyzabc123• 9 years ago

What about these changes do you think he'd not agree to?

Paul-ish3• 9 years ago

It looks like the HN title was changed. To clarify, I posted this to point out that an arbitration clause was recently added to the terms.

Dropbox Developer Terms and Conditions

Related Stories