Photobucket's Attempted TOS Amendment Mostly Fails–Pierce v. Photobucket(blog.ericgoldman.org)

blog.ericgoldman.org

Photobucket's Attempted TOS Amendment Mostly Fails–Pierce v. Photobucket

https://blog.ericgoldman.org/archives/2026/03/photobuckets-attempted-tos-amended-mostly-fails-pierce-v-photobucket.htm

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The most interesting technical detail in this case is the "negative option" consent problem. Photobucket's theory was that logging in after a TOS update constitutes acceptance — but the court found the notification was insufficient for users to knowingly consent to such a significant change in how their data would be used.

This raises a broader question that affects any cloud storage service: what level of notification actually constitutes informed consent when you're retroactively changing the commercial use of data that users uploaded under a completely different understanding?

The DMCA 1202(b) angle is also underexplored in the coverage — Photobucket allegedly removed copyright management information from photos before licensing them. That's a separate and quite serious exposure that goes beyond the biometric claims.

The deeper issue for users is the fundamental mismatch between "free storage" business models and long-term data custody. When you upload to a third-party server, you're implicitly trusting their future business decisions — decisions made under pressures that didn't exist when you signed up.