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Saturday, June 06, 2020

Patreon plays dirty

As I mentioned previously, Patreon has taken the highly unusual tactic of attempting to sue its customers for doing exactly what they are required to do in the terms of use, and in the process, it has publicly admitted to its deceptive practices in the legal filing.

We're clearly not dealing with the legal equivalent of rocket scientists here.

In brief, Patreon required users to first talk to them, and then go to arbitration if the matter could not be resolved by the discussion.

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. 

Patreon created the dispute by deplatforming Owen and intentionally interfering in the relationship between him and his supporters. So, Owen and the Bears talked to Patreon about the dispute as required by the terms of use. Their response was to shriek that they were being extorted... in at least one case by someone who had never had any contact with them. Since the issue could not be resolved, Patreon was informed that Owen and the Bears would be going to arbitration. But before the arbitrations were filed, Patreon surreptitiously altered its terms of use to bar one specific thing: one of the issues that it had been informed would be involved in the arbitration claim, namely, its tortious interference in the separate economic contract between Owen and his supporters. On December 19, 2019, Patreon slipped this little change into its terms of use without notifying anyone.

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.

Now, this is clearly a Deceptive Practice under 1770, which bars the insertion of an unconscionable clause into a contract. No contract can require your agreement to accept tortious interference or any other violation of your civil rights. That wasn't the only Deceptive Practice committed in Patreon's alteration of its terms of use, but that is the only one relevant here, so we won't go any deeper into that subject for the time being. Furthermore, both the arbitration company and various arbitrators have already, and repeatedly, ruled that the claims are arbitrable.

On January 3rd, the Bears filed for arbitration, separately, as required by the terms of use. So what Patreon is now asserting is that because those users filed demands for arbitration, they did so in violation of the revised terms that were deceptively changed 12 days earlier in direct response to their initial contractually-required notice... even though Patreon didn't notify them of the change. If that sounds exceptionally stupid to you, that's because it is. Patreon's legal situation is actually even more precarious than I've described it here, because the whole point of requiring individual arbitrations in the first place is to avoid class-action lawsuits, but Patreon has just filed a lawsuit against a class, both aspects of which are specifically barred by the contract. In other words, in this very lawsuit, Patreon has actually done what they falsely accuse these Bears of having done.

Since a lawsuit is a matter of public record whereas an arbitration is not, the Owen-haters on Reddit have just published all the names of the Bears being sued by Patreon. Needless to say, the Legion is on it and we will be legally retaliating very strongly in order to see that Patreon and their lawyers are severely punished for this despicable and unexpected tactic. But the doxxing has already taken place, so if any of you experiences any blowback from this, please be sure to document everything and let us know right away so that the Legion can include everything in their future filings concerning this element of the matter.

If you’re one of the Bears concerned, please don’t worry about anything. It's going to be fine. The Legion - and more - are on it, and everyone will have your back, just as you have had Owen’s. This is an absolutely desperate move by Patreon to try to further delay your arbitrations against them because they are losing very badly. And if you're wondering how this joke of a lawsuit can be a matter of public record when you haven't even been served, exactly. As you can see here, Patreon's lawyers are not following any of the rules of either the legal or the arbitration processes, which is one of the reasons they are losing so consistently and comprehensively.

Anyhow, I’ll be doing a Darkstream today and will address questions about the matter from everyone. The key right now is to remain calm, remain together, and have faith that we will be completely victorious in the end. This is not our first rodeo. We will win. And while we didn’t anticipate this level of utter lunacy from Patreon, or their desperate refusal to accept the inevitable, the enemy always gets a vote.

So, it is increasingly looking like there either won't be a Patreon by the end of the year or Owen and the Bears will own it. It's rather like finding yourself fighting a duel with someone who genuinely believes his most effective attack is to disembowel himself.

Labels: ,

61 Comments:

Blogger SciVo June 06, 2020 7:08 AM  

Is there a potential "Pile On" option for those that missed the initial wedge?

Blogger VD June 06, 2020 7:16 AM  

Is there a potential "Pile On" option for those that missed the initial wedge?

If you are a Patreon user, yes. Go to SG and be sure to participate in The Noticing 2.0.

Blogger Laramie Hirsch June 06, 2020 7:23 AM  

"And while we didn’t anticipate this level of utter lunacy..."

I swear, this is the theme for 2020.

Blogger rikjames.313 June 06, 2020 7:48 AM  

That is interesting. I hope you guys have enough money to take this through the court of appeals, I'd like to see if they give approval to the tactic

Blogger Salt June 06, 2020 7:55 AM  

"lawsuit can be a matter of public record when you haven't even been served"

Becomes public record the moment it is filed. Question is, who leaked it? Has to be Patreon. Why?

Blogger ScottC June 06, 2020 8:07 AM  

...the Owen-haters on Reddit have just published all the names of the Bears being sued by Patreon.

The wages of naming the Jew. Anyone who does that is cast out of polite society.

Blogger FUBARwest June 06, 2020 8:12 AM  

How long until Patreon lashes out at The Noticing?

Blogger Mauldication Bear June 06, 2020 8:15 AM  

Oh boy, this is going to be good.

Blogger White Knight Leo #0368 June 06, 2020 8:16 AM  

I have to ask VD - are these purported technocrats really that arrogant, or is this more panicked flailing? Because I can't imagine them getting a lawyer in their employ to sign off on this as something that would actually fly in the courts.

Then again, I couldn't have imagined high-level Democrat operatives openly calling for the abolition of law enforcement even two weeks ago. I thought that was something that would, at minimum, remain "the quiet part". So maybe I just lack imagination. Or maybe I haven't lost enough faith in their capacity to act in bad faith.

Blogger PragmaticTroll June 06, 2020 8:16 AM  

I've never been more disappointed that I'm NOT being sue.

Blogger SciVo June 06, 2020 8:23 AM  

@VD:
Thanks!

@Laramie Hirsch:
2020 has a lot to answer for. I could forgive utter lunacy, if it were at least interesting. But no, it had to be stupid and tedious.

Blogger One Deplorable DT June 06, 2020 8:29 AM  

Watching this from the sidelines I have to say that I have the utmost respect for Vox's loyalty to his friends, his tenaciousness in dealing with enemies, and his ability to organize and lead others.

It is increasingly looking like there either won't be a Patreon by the end of the year or Owen and the Bears will own it.

I wish you the best of luck in this. I'm personally hoping for the latter, but either would be good.

Blogger Uncle John's Band June 06, 2020 8:32 AM  

SJWs are so conditioned to amenable authorities privileging their feelings that the idea of binding rules doesn't compute.

That plus the cognitive limitations.

Blogger xavier June 06, 2020 8:42 AM  

Does Patreon user signify customer or content creator?

Thanks.

Blogger pyrrhus June 06, 2020 8:43 AM  

I'd like to be in court when Patreon's lawyers try to explain why there was no service of process.....

Blogger VD June 06, 2020 8:48 AM  

I have to ask VD - are these purported technocrats really that arrogant, or is this more panicked flailing?

Definitely the latter.

Does Patreon user signify customer or content creator?

"User" encompasses both.

Blogger VD June 06, 2020 8:49 AM  

How long until Patreon lashes out at The Noticing?

They'd have to alter their terms of use again first. But writing a right to engage in deceptive practices into their contract of adhesion is probably a little too obvious even for them.

Blogger The Masked Menace June 06, 2020 9:20 AM  

Congratulations. Any sign of desperation in your opponent is a good sign. It simply means you're close to finishing him.

Blogger Damelon Brinn June 06, 2020 9:21 AM  

are these purported technocrats really that arrogant, or is this more panicked flailing?

They're flailing now, but they really are that arrogant, which is how they got in this position in the first place. They've enjoyed a couple decades of treating "cyberspace" like it's a land outside international waters where normal laws don't apply, and for the most part, they've gotten away with that. They somehow convinced people that a company can write anything it wants into a terms of service and it becomes law, as long as it can get people to click on it and the product or service is digital. When someone finally pushed back on them, being midwits, they thought they could just outwit the complainers with a bit more tricky language.

Blogger The Masked Menace June 06, 2020 9:27 AM  

Everybody remain focused and disciplined. This is a good sign. The opponent is tired, sloppy, desperate, and dropping his guard. We're in the kill zone.

Blogger Balam June 06, 2020 9:32 AM  

I hope you can nail Reddit to the wall as a publisher for this

Blogger xevious2030 June 06, 2020 9:51 AM  

“Has to be Patreon. Why?”

As a guess, probably the same reason for almost every other doxing. A miscalculation on their part. Acquisition would be nice, our enemies going to all the trouble of bringing us our weapons and all.

Blogger Unknown June 06, 2020 9:55 AM  

Wow and Reddit leftist scum just let doxxing like that go on. No surprises there. Good luck guys I know you can handle this.

Blogger borsabil June 06, 2020 10:01 AM  

"I hope you can nail Reddit to the wall as a publisher for this"

Not happening. I've always thought the best option to attack big tech, at least in the US with your insane defamation rules, was to nail them for violating campaign finance law. Outside the US is a different matter. UK and Australian courts have already handed out rulings that social media companies will be found liable for libelous statements made by their users against third parties.

Blogger Nihil Dicit June 06, 2020 10:06 AM  

SJWs are so conditioned to amenable authorities privileging their feelings that the idea of binding rules doesn't compute.

It must cause one hell of a whiplash to suddenly find a situation where the rules they claim to like so bad apply to them too.

Blogger Ominous Cowherd June 06, 2020 10:22 AM  

VD wrote:If you are a Patreon user, yes. Go to SG and be sure to participate in The Noticing 2.0.
I suppose I should get onto SG then. Somebody tell me how?

Blogger Glenn June 06, 2020 10:32 AM  

Whistling pass the graveyard is not a valid tactic.

Blogger Section 8A June 06, 2020 10:42 AM  

"Build your own platforms". This is ever more resonant.

The SJW playbook entails going after SG2, UATV, and Infogalactic. It won't happen because it can't happen.

Blogger VD June 06, 2020 10:52 AM  

It won't happen because it can't happen.

They will certainly try. A few will sneak in here and there. We'll be ready.

Blogger JovianStorm June 06, 2020 11:06 AM  

Is it possible that public victories in riots and such (Lefties break the law and get away with it) are emboldening the idiots at Patreon to double down on malevolence as they believe they control the courts and laws... Or is this just steam - powered stupid, barreling towards the cliff?

Blogger SirHamster June 06, 2020 11:16 AM  

Salt wrote:Becomes public record the moment it is filed. Question is, who leaked it? Has to be Patreon. Why?
There is a simpler possibility.

The midwit and halfwit anklebiters on Reddit have been trying to disprove that Vox and Owen have been taking legal actions against Patreon, under the delusion that the two are grifting.

One thing they found was that there were no lawsuits filed against Patreon. As I said, midwit. Smart enough to look up public court records, not smart enough to distinguish between a lawsuit and an arbitration.

So when Vox talked about Patreon filing a lawsuit, one of those midwits would have checked the public records, and, like the proverbial blind squirrel, found the nut.

Not to discount the possibility that Patreon's lawyers lurk Reddit and leaked to it. It would match up with their legal incompetence and bad faith.

I personally find it funny how some reddit haters think Patreon filing a lawsuit means that Vox and Owen have lost. You can also see the effect of the Gamma delusion bubble where they immediately forget that Patreon's dumb legal reaction proves out Vox's claims of legal action.


To any Bears who feel intimidated by the lawsuit, don't be. You have Vox and the rest of us backing you up, while the other side is stupid. Patreon wrote down your names on a piece of paper, trying to cast a spell of fear and intimidation. But in doing so they broke their own Terms and Conditions, so their spell will hilariously backfire.

Blogger JM June 06, 2020 11:22 AM  

How does one join socialgalactic?

Blogger nono June 06, 2020 11:22 AM  

They are trying to impost new terms of use ex post facto? No wonder they are getting there a$$ handed to them in arbitration.

Blogger KPKinSunnyPhiladelphia June 06, 2020 11:30 AM  

In other words, in this very lawsuit, Patreon has actually done what they falsely accuse these Bears of having done.

Of course, this is THE tell of a lefties in general, and shitlibs in particular.

Not involved in this at all, but I will be cheering loudly from the sidelines as you stick the shiv right up into the place where the sun don't shine.

Blogger Grey Carter June 06, 2020 11:42 AM  

I will be entering The Noticing 2.0 later today.

Blogger Jack Ward June 06, 2020 11:50 AM  

Sun tsu, in his grave or warrior heaven, must be laughing his ass off. Got to be.
Sometimes it's so much fun to lurk here.
I really ought to find out who Patreon's lawyers are, if any, to be sure I never contract with them.

Blogger maniacprovost June 06, 2020 12:03 PM  

Let me get this straight... they're trying to intimidate a group of people who are so stubborn that they refuse to wear a mask inside Costco?

Blogger SamuraiJeff June 06, 2020 12:11 PM  

The lawyers probably work for free because fuck this global homo shit

Blogger SamuraiJeff June 06, 2020 12:15 PM  

Maybe you should watch more Owen and vox day?

Blogger Joe Smith June 06, 2020 12:35 PM  

"In other words, in this very lawsuit, Patreon has actually done what they falsely accuse these Bears of having done."

It's always projection and inversion. The powers that be don't seem to be able to help themselves. Like everything else with these people, if you want to know what they're doing, just get them to accuse you of something; whatever that something is, that's what they're doing.

Blogger VD June 06, 2020 12:43 PM  

How does one join socialgalactic?

1. Subscribe to Unauthorized.
2. Buy a subscription at Arkhaven.

Blogger Ominous Cowherd June 06, 2020 1:56 PM  

VD wrote:2. Buy a subscription at Arkhaven.
On it! Like a fat kid on a Snickers bar.

This was enough to push me over the edge to subscribe to the book of the month.

Blogger Balkan Yankee June 06, 2020 2:32 PM  

Let me get this straight: The Patreon crew blindly maneuvered itself onto the legal equivalent of death ground, realized it belatedly, panicked, and then committed multiple blunders, placing Patreon in serious legal jeopardy and its very survival in doubt?

Did I get that right? Because Patreon's behavior seems almost too stupid to be true.

But if it's true, then it's time to put the bounce back into the rubble.

Blogger Gregory the Tall June 06, 2020 2:57 PM  

Jack Ward wrote: "I really ought to find out who Patreon's lawyers are, if any, to be sure I never contract with them."
Problem is there's plenty of other bad lawyers around whom you must learn to avoid as well.

Blogger SirHamster June 06, 2020 3:49 PM  

Balkan Yankee wrote:Did I get that right? Because Patreon's behavior seems almost too stupid to be true.
Reality reserves the right to be stranger than fiction.

Fiction limits the idiocy of its characters.

Blogger Storm Rhode June 06, 2020 4:41 PM  

My baby momma disagreed about iron knuckles knocking the jaws off demons last night. I know what I'm subbing to.

Blogger TMLutas June 06, 2020 5:05 PM  

The idea that any lawsuit major enough to materially change the ownership of a company as prominent as Patreon is going to be resolved within the year is uncharacteristically optimistic of you Vox.

The throat clearing might be over by next year.

Blogger Beardy Bear June 06, 2020 5:14 PM  

Stand fast. Our enemies are hellbent on preventing their own retreat. Primo Victoria!

Blogger Ray - SoCal June 06, 2020 5:28 PM  

Thanks Vox for continuing the replatforming fight, through all the trial and tribulations. It’s making a positive difference.

Blogger VD June 06, 2020 6:08 PM  

Let me get this straight: The Patreon crew blindly maneuvered itself onto the legal equivalent of death ground, realized it belatedly, panicked, and then committed multiple blunders, placing Patreon in serious legal jeopardy and its very survival in doubt? Did I get that right?

Pretty much. It's almost impossible to even imagine any way out for them. And it's about to get a LOT worse, as there are some bells that cannot be unrung.

Blogger tublecane June 06, 2020 8:07 PM  

@19- Devil Mouse recently did a very funny thing on Twitter. It was planning to run some sort of "Remember When?" thing for Star Wars nostalgia, possibly making use of people's tweets tied to some hashtag (don't remember what). Which I think would be fine, because tweets are public, aren't they? So who knows why they have notice.

Anyway, the funny part is they put the world on check that they owned every tweet containing that specific hashtag. A hashtag which Diznee probably didn't invent. Eventually, this changed to the more reasonable claim that they owned every subtweet to their tweet about the Remember When thing. Which is of course also ridiculous.

I don't know what sort of crazy person would get it in their mind that Diznee could own a hashtag like that.

The fascinating part to me is that they thought they could lay claim to it by simply announcing--ex officio--that it was theirs. You weren't required to click on anything. You weren't even required to see the tweet. They were informing you of something that apparently was already an established fact.

Are they stupid? Is this mumbo-jumbo that might as well have never existed (like most tweets) and somebody felt like getting paid for it? Or does Diznee Legal see itself as a Finders Keepers sailor on the high seas of the web, saying: "Argh! This here be mine, matey!"

Blogger Unknown June 06, 2020 9:40 PM  

Well said

Blogger Gregory the Tall June 07, 2020 4:47 AM  

A most satisfying post and a most satisfying Darkstream.

1st question: Is it possible that they have no money (or do not want to show the outcome of this to their investors yet) and are therefore trying to push the day of reckoning into the future?

2nd (related) question: Is there any of way of finding out if they have thousands of other arbitrations going against other disgruntled clients?

Blogger VD June 07, 2020 8:40 AM  

Is it possible that they have no money (or do not want to show the outcome of this to their investors yet)

Yes. Their behavior has not been consistent with a company that supposedly received $65M in investment last year.

Is there any of way of finding out if they have thousands of other arbitrations going against other disgruntled clients?

They don't.

Blogger Gregory the Tall June 07, 2020 10:48 AM  

Are you ready, Big Bear? Uh-huh
Anchor Bear? Yeah
Mountain Bear? Okay
Alright fellas, let's go!
...
And the man the back said everyone attack, and it turned into a courtroom blitz...

Blogger Ominous Cowherd June 07, 2020 1:32 PM  

How do I identify my Patreon account in the Noticing? Is that the username? Or is it the 8 digit number in the url associated with my username (i.e., https://www.patreon.com/user/creators?u=12345678)

Blogger Gallant June 07, 2020 3:13 PM  

Few people have contact with civil law. Filing something alone means nothing. I can file a paternity custody suit against the 5th poster on this thread for custody of the 12th poster on this thread on behalf of myself my disabled friend, VD’s pet beagle. Victory is another matter but you go pay the fee and put it on the docket.

Blogger Blip1222 June 15, 2020 4:10 AM  

Have you read Douglas v. US Dist. Court for Cent. Dist. Cal., 495 F. 3d 1062 (9th Cir. 2007)? They can't just change their terms of service without giving you notice first. All the people involved would have signed up under the old terms of service, the change is an unaccepted offer without notice.

"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.[1] Indeed, a party can't unilaterally change the terms of a contract; it must obtain the other party's consent before doing so. Union Pac. R.R. v. Chi., Milwaukee, St. Paul & Pac. R.R., 549 F.2d 114, 118 (9th Cir.1976). This is because a revised contract is merely an offer and does not bind the parties until it is accepted. Matanuska Val Farmers Cooperating Ass'n v. Monaghan, 188 F.2d 906, 909 (9th Cir. 1951). And generally "an offeree cannot actually assent to an offer unless he knows of its existence." 1 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 4:13, at 365 (4th ed.1990); see also Trimble v. N.Y. Life Ins. Co., 234 A.D. 427, 255 N.Y.S. 292, 297 (1932) ("An offer may not be accepted until it is made and brought to the attention of the one accepting."). Even if Douglas's continued use of Talk America's service could be considered assent, such assent can only be inferred after he received proper notice of the proposed changes. Douglas claims that no such notice was given."

https://scholar.google.com/scholar_case?case=2000111622584998103&q=douglas+v+district+court&hl=en&as_sdt=4,114,129

Blogger Blip1222 June 15, 2020 4:47 AM  

The Unfair Competition Law (UCL) is also extremely powerful in California for counterclaims. Anyone sued should take a look at it. If they violate literally any law, state, federal, municipal, whatever (the "unlawful" prong) or engage in any kind of business practice that is "unfair" then you can sue them. A common defense strategy in California is to counterclaim under the UCL with something totally random and unrelated. Oh, I breached this contract? Well you violate the Made in USA law or you are violating privacy laws or on and on and on. If you are a Patreon customer and they sue you, then all you have to do is find one law anywhere they've broken and argue it injured you. Then you can counterclaim and seek injunctive relief, restitution, attorney's fees if you are seeking an injunction that benefits the public (California Code of Civil Procedure 1021.5).

So guess what happens then? THEY HAVE TO MOVE TO COMPEL THOSE CLAIMS TO ARBITRATION or they now have to defend them in state court. Their theory is that only claims that they cancelled a creator don't have to be arbitrated. So they literally would send you right back to arbitration on a totally different claim and would keep all of your arbitrations alive (but on a different issue). Also you cannot send claims for public injunctive relief to arbitration under current 9th Circuit law. That's the Rent-a-Center case from 2019. So doing this would cause part of the claims to go back to arbitration (meaning they have to pay all the arbitration fees again) but then they also have to deal with the public injunctive relief request in state court as well as the attorney's fees request. Their maneuver literally just means they have to fight on both fronts at once if a defendant makes the right counterclaims. All the defendants need to do this is find some laws that are violated (not hard, start reading privacy statutes, FTC regulations - they count, the CLRA counts as a law under the unlawful prong, etc.). Don't restrict the search to a specific subject matter or the current issues in the case, just anything that you have arguably been injured by.

Also note that one-sided fee shifting provisions are unconscionable under California law. Their provision shifting attorney's fees only for claims about cancelling another creator, which can only apply to you and not reciprocally to Patreon, is a CLRA (and thus UCL) violation.

https://scholar.google.com/scholar_case?case=12236474564945782397&q=perez+v+direct+tv+holdings&hl=en&as_sdt=4,321

And their new clause allowing them to sue to enforce this (in the dispute resolution section) is also clearly unconscionable. California law says that it is unconscionable to write the arbitration clause so that you have to have arbitration for claims likely to be raised by the consumer, but the company can go to Court. Patreon allows courts to resolve claims "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." Who is likely to assert an IP or proprietary data claim? Not the consumer. They just exempted three claims for themselves from the arbitration clause but force all consumer claims into arbitration - classic substantive unconscionability.

Carmona v. Lincoln Millennium Car Wash, Inc., 226 Cal. App. 4th 74 - Cal: Court of Appeal, 2nd (2014)

Blogger Blip1222 June 15, 2020 5:24 AM  

Last comment (probably) is the bind Patreon gets put in with UCL counterclaims on random unfair practices or unlawful conduct is that they either allow you to (a) get discovery on those claims and that topic, or (b) have to send it back to arbitration to avoid discovery. The more topics you can come up with viable UCL claims for, the more this is a huge problem. You are in charge of the forum. Theoretically everyone could just file some new arbitration demand on a UCL unlawful claim of their own and they're right back in the same situation they started in. So the defendants here now have lots of options - file more arbitration demands on some claims, try some as counterclaims in the SF action for the discovery, etc. It is only limited by how many bad business practices of Patreon the defendants can identify.

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