First of all, remember that, just because it's in a contract, that doesn't mean it's enforceable. Plenty of contracts have legally nonenforceable clauses (or clauses which are questionably enforceable), which is why almost every contract also has a clause that says, 'if any part of this contract is deemed unenforceable or invalid, the remainder shall remain in effect'.

There are also other reasons that a clause might be legally enforceable in the general case, but still struck down in a particular suit given the context of the specific contract in question.

> We live in a society that has created a system in which you must have money to pursue legal recourse

Depends on what you mean by 'legal recourse'. You're welcome to, for example, go to small-claims court and have both sides represent themselves[0]. That's as close to free as you can get.

The problem is that legal recourse for large matters must cost money. You wouldn't want to go to trial for a large civil suit without a lawyer, because there's too much at stake for you to risk it by representing yourself. But lawyers cost money, because they have the opportunity costs of their own time to worry about.

And it's not like you can't get decent representation for free. You can get a lawyer on contingency, which basically means that you have to convince them that your case is solid enough that you're likely to win. In that case, you don't have to pay much (or anything) up-front.

[0] In some states, you cannot have a lawyer represent you in small-claims court - both sides must represent themselves.

I agree that GP's perspective doesn't match reality, but for a different reason. The reality is, I think, that consumers do not care what is in the EULAs they sign. And this isn't just due to ignorance, lack of resources, lack of bargaining power, or any of those things. (Note, that I'm not saying these issues don't exist--just that they aren't the actual reasons why most consumers sign EULAs.) It's because, for the average transaction, the likelihood (and magnitude) of any real dispute is regarded as so low that most people are OK signing pretty much anything. This, I'd venture, is almost always a rational decision from a consumer's perspective. but the problem is that these individual decisions can add up to more than the sum of their parts by insulating companies from the broader regulatory goals of certain privately enforceable laws (i.e., laws that an individual has to sue to enforce). The freedom-of-contract defense GP is giving doesn't properly come to grips with the fact that many legal claims serve purposes other than vindication of personal rights (or, more broadly, the right to bring any claim in court, especially class actions), and therefore should not be so easily waived.

In most cases, consumers have zero ability to negotiate contracts. You can't negotiate a EULA. You either accept it, or find a different product. And if some piece of software is vital to something or other else you need with no alternative, you don't even have much of a choice on whether or not to accept it.

In the case of non-negotiated contracts ... such as with large companies offering goods for sale ... the way an oppressive contract term is bargained away by consumers, is by them choosing the goods or services of a competitor who does not have that term.

If the term is indeed material to the consumer, and if it is not oppressive to the company for them to give it, then at least one competitor will offer it, in order to win some portion of the market away from incumbents.

This usually does not happen with contract terms, because consumers do not look at the terms, nor usually do they care about the terms.

There was a great paper a few years back that calculated the time needed to be spent would everyone actually read the fine print---it was staggering and thus a great visceral way to get across how broken contracts are.

Legal and contractual bloat is a real problem.

> Consumers have not been taught how to properly negotiate and enter contracts,

Did you negotiate your ISP contract ? you can't negotiate if every ISP have the same policies.

I'm just curious what Comcast and Google are trying to defend against. You'd think that the cases your typical home subscriber and probably your business subscriber would bring would in most all cases be litigated in Small Claims court. It would be about early termination because the connection is too poor or the uptime does not conform to contract.

Are they trying to quash class-action suits or what? I haven't got a clue, someone more familiar with the subject should clue us all in.

Not really. Arbitration has long been a path that judges recommend for non-criminal cases to reduce strain on the court system. I know that it can often seem nefarious, but a major part of the modern civil court system involves reducing the (frankly, unbelievable) strain on court resources, which are finite (and in many states, being reduced for budgetary reasons).

Shouldn't it scare away customers that a company will only do business with them if they cannot be held in court for misdeeds regarding that business? I sadly understand that consumers don't read the fine print. But really, this clause should be treated as a dealbreaker.

> you could legally have someone sign a contract waiving [t]his right [...] However, the contract would be unenforceable

I understand I can write any nonsense and sign it, probably because of freedom of expression or something. My point was whether that contract would be enforceable. If such a thing wasn't enforceable Google and others wouldn't be putting it in their contracts.

> "the state would be pressing charges, not the victim"

I figured, so I edited in (about 30 seconds later, not sure if you fell in that time gap): "Assuming he doesn't die and it's him, not the government, that prosecutes/sues me."

Not exactly. This opinion only decided that an arbitration clause can disallow class-wide arbitration. The real answer to GP's question is the Federal Arbitration Act (which, by the way, was also the statutory basis for Concepcion): https://en.wikipedia.org/wiki/Federal_Arbitration_Act

> Why ban it?

Because it prevents creating a class action to group together impacted customers. Individually it may not be worth it for a customer to proceed with a claim. En masse, there is an economy of scale.

Now I'm not in favor of frivolous lawsuits and these clauses are clearly intended as a defend against them, but if the response to that problem shouldn't be binding arbitration everywhere. It should be tort reform.

They also both line politicians' pockets to ensure laws get passed in their favor? (Google has donated to over half of Congress according to OpenSecrets.org, in actual cash donated I think Comcast might still be on top, but the gap's closing fast.)

I'd also comment on their mutually horrible customer service, but at least Comcast HAS people you can call, even if they're lousy.

This was in direct response to the article, in which Google Fiber's new policy strips users of their Constitutional rights.