Information Technology Reference
In-Depth Information
How is the user to know of such change before accessing their cloud space?
Notice would accomplish this, but the user would still need to figure which terms
changed. Proper notice then should not only alert the user to a change but indicate the
term or terms that have changed and include a mechanism for acceptance, e.g., click-
to-agree. The four cloud services reviewed differ in approach with iCloud and
Dropbox providing notice of material changes via email to the user. There may still be
an issue regarding what the provider versus the user believes are material terms for
which notice should be provided. A material term is one that goes to the heart of the
bargain or agreement. Price is an example of a material term. For the cloud user a
significant change in storage capacity might also be material.
The other two cloud providers, OpenDrive and Amazon Cloud Drive, simply post
the changes to their websites. A user would need to be vigilant by checking the date of
the last update to see if there has been a recent change then compare the TOS in effect
previously (remember to save a copy for easy access) with the newly posted TOS to see
what has changed. Users need to be aware of the consequences when terms can change
without notice and use equates to assent to those changes. It is questionable whether an
approach such as “check our website for changes” is a legally valid mechanism for
purposes of assent to those changes. In mass market agreement scenarios such as those
for cloud services, where every customer gets the same TOS, at least one federal
appellate court indicated that using a “check our website for changes” mechanism is
indeed not valid. The United States Court of Appeals for the Ninth Circuit in
Douglas v.
Talk America, Inc.
[2], concluded that posting of changes followed by use of service is
not enforceable. “Talk America posted the revised contract on its website but, according
to Douglas, it never notified him that the contract had changed. Unaware of the new
terms, Douglas continued using Talk America's services for four years” [3].
The court
concluded that the new terms were not part of the agreement: “Even if Douglas had
visited the website, he would have had no reason to look at the contract posted there.
Parties to a contract have no obligation to check the terms on a periodic basis to learn
whether they have been changed by the other side” [4]. Once a contract is formed any
changes represent an offer for additional terms, an offer that in theory requires separate
and distinct assent. The court further commented on the problem of providing notice
unless the notice also identifies which terms changed: “Nor would a party know
when
to
check the website for possible changes to the contract terms without being notified that
the contract has been changed and how. Douglas would have had to check the contract
every day for possible changes. Without notice, an examination would be fairly
cumbersome, as Douglas would have had to compare every word of the posted contract
with his existing contract in order to detect whether it had changed” [5]. Although
iCloud uses a click-to-agree mechanism for initial contract formation all of TOS
reviewed here adopt a use-after-posting-equals-assent approach for changes in terms. It
is determined that the agreements examined raise contract formation and assent issues.
The Impact of TOS in the Cloud Environment: Unintended
Consequences
3
The TOS establish the operating rules of the service, including the obligations and
responsibilities of each party towards each other and other users. The TOS do much
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