My reading is that the article skips a step in its analysis. Note that I did not watch the linked video with the video game lawyer and whatever he says is probably more contextually useful than what I say:
I’d be more apt to call this an illusory contract where one party reserves the ability to choose how it performs. This destroys the mutuality of agreement in which the contract rests. In some circumstances this might get you to a win simply by escaping the contract. But not if you want damages; in this situation an equitable remedy that does not presume the existence of the contract would be exactly what you would want.
On the other hand all of these clickwrap licenses seem to reserve the right to change at any time. I think the only reason that they are not adjudicated as illusory is the existence of mandatory arbitration clauses but I’m not sure. I’d be interested in being set straight if someone reading this is more knowledgeable.
I’d be more apt to call this an illusory contract where one party reserves the ability to choose how it performs. This destroys the mutuality of agreement in which the contract rests. In some circumstances this might get you to a win simply by escaping the contract. But not if you want damages; in this situation an equitable remedy that does not presume the existence of the contract would be exactly what you would want.
On the other hand all of these clickwrap licenses seem to reserve the right to change at any time. I think the only reason that they are not adjudicated as illusory is the existence of mandatory arbitration clauses but I’m not sure. I’d be interested in being set straight if someone reading this is more knowledgeable.