Can companies change their terms of use?

Reader Cheryl Brownstein isn’t happy about changes in the terms of use of genealogy websites — AncestryDNA, in particular — that occur long after a user begins using the website.

“Can the company simply change the terms that you agreed to when submitting your DNA several years before they published this change?,” she asks.

Short answer: yep, they sure can.

As long as they do it right.

Now… let’s stop for a minute, back up and make sure we all understand what we’re talking about here.

Terms of use, or terms of service, are the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it.

The phrase “terms of use” isn’t defined in the old legal dictionaries. The closest they come is the definition of “use” by Black to include “the right given to any one to make a gratuitous use of a thing belonging to another.”1 Wikipedia says terms of use, terms of service and terms and conditions are all the same thing (they are) and defines the phrase as “rules which one must agree to abide by in order to use a service.”2 That’s a pretty fair definition.

These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.

So… in the context of a website like AncestryDNA, the terms of use govern whether we can use the AncestryDNA service and, if we do, what rights we’re giving AncestryDNA.

But, you’re thinking, if it’s rules, how can it be considered a contract? Nobody gave you a choice about the rules when you subscribed to a service like AncestryDNA, did they?

Actually, they did. Exactly the same kind of choice we have in a lot of things in life: take it or leave it. When we create an account with one of the many services we use around the web, commercial and non-commercial, there comes a point in the join-up or subscription process where there’s a button or a check box or something. It always says something like the example shown in the graphic below: if we click on it or check the box, we’ve agreed to be bound by whatever the terms of use are. Our choice is to agree, or not use that website.

You may be wondering if these terms of use are enforceable. Easy answer: yep, they sure are. This is just a contract between us as the users and the website and courts enforce these just the way they do any contract. They look for evidence that we knew what the terms were and we agreed to them.

Most websites use the button or check box system. In court cases, it’s called a “clickwrap”3 or “click-through”4 because you can’t get to what you want until you click. And federal and state courts enforce clickwraps all the time.5

They even usually enforce them where you don’t have to specifically click through but the terms are clear on the website page where you sign up; that’s called a “browsewrap.”6

So… once we sign up and we agree to these rules, can a website like AncestryDNA change the rules and enforce the change?

Again, the answer is yep, as long as the company does it with notice, and the notice is clear and unambiguous.7 It’s only if they don’t tell us about the change, or when the changes are mentioned in links in obscure sections of a webpage that users are unlikely to see, that the courts generally won’t enforce the changes.8

But as long as they make it clear that the rules are changing so that we have a choice to keep using the site or leave, that’s generally enough.

In the case of AncestryDNA, the website itself provides specific notice of changes, it announces the changes in its blog9 and it even, sometimes, provides notice by email.

It may not seem fair that a website can change the rules after the fact and present us with a take-it-or-leave choice, but that’s what the law allows.


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1204, “Use.”
  2. Wikipedia (http://www.wikipedia.com), “Terms of service,” rev. 3 Aug 2017.
  3. Specht v. Netscape Communs. Corp., 306 F.3d 17, 22 (2d Cir. 2002).
  4. Vernon v. Qwest Communs., 2012 U.S. Dist. LEXIS 31076 (D. Colo. Mar. 8, 2012).
  5. See e.g. Kraft Real Estate Invs. v. HomeAway.com, 2012 U.S. Dist. LEXIS 8282 (D.S.C. Jan. 24, 2012); Fteja v. Facebook, 2012 U.S. Dist. LEXIS 12991 (S.D.N.Y. Jan. 24, 2012); United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009); Durrett v. ACT, 2011 Haw. App. LEXIS 767 (Haw. Ct. App. July 12, 2011); Fieldtech Avionics v. Component Control.Com, 262 S.W.3d 813 (Tex. App. 2008); Adsit Co. v. Gustin, 874 N.E.2d 1018 (Ind. Ct. App. 2007).
  6. See Ticketmaster v. RMG Tech., 507 F. Supp. 2d 1096 (C.D.Cal. 2007); Major v. McCallister, 302 S.W.3d 227, 229-231 (Mo. Ct. App. 2009).
  7. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 233 (2d Cir. N.Y. Aug. 25, 2016).
  8. See Douglas v. United States Dist. Court, 495 F.3d 1062 (9th Cir. 2007), cert. den. 552 U.S. 1242 (2008).
  9. See e.g. Eric Heath, “Setting the Record Straight: Ancestry and Your DNA,” Ancestry blog, posted 21 May 2017 (https://blogs.ancestry.com/ : accessed 17 Aug 2017).
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