How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Jane T (LLC) Your Own Question

Jane T (LLC)
Jane T (LLC), Lawyer
Category: Intellectual Property Law
Satisfied Customers: 8435
Experience:  Worked closely with the Intellectual Property areas of a law firm and a major U.S. corp.
Type Your Intellectual Property Law Question Here...
Jane T (LLC) is online now
A new question is answered every 9 seconds

Are Terms of Use (TOU) agreements on websites copyrighted

Customer Question

Are Terms of Use (TOU) agreements on websites copyrighted? I am starting a website similar to craigslist in that there are postings by users. No downloadable TOU form covers the situation of postings. The craigslist TOU is excellent, and I could paraphrase and modify it. But is it copyrighted? On the craigslist site I can find no specific mention of it being copyrighted. May I use it? Your legal view?
Submitted: 5 years ago.
Category: Intellectual Property Law
Expert:  Jane T (LLC) replied 5 years ago.

DearCustomer

 

The rule of thumb under common law in the US is that even if something is not officially copyrighted through the US Copyright office just placing it into a written form (recorded form, etc.) provides it copyright protection of a kind. Further, just because one website page may not indicate it is copyrighted that does not mean that elsewhere on a site a statement regarding a reservation of all rights, including copyright, is not posted (and that too would likely be enforceable). In addition to this, Terms of Use (ToU) are legal contracts and normally should be specifically written for a website because, if a website that is copying a ToU does not follow exactly the same format, operations, information use, user policies, and everything else a ToU may refer to on the original site (including other legal terms or contracts on the original website) just copying it may be entirely ineffective for protection of any kind and may even be harmful if it misrepresents anything or fails to discuss something the "copying" website does.

 

 

Jane T (LLC), Lawyer
Satisfied Customers: 8435
Experience: Worked closely with the Intellectual Property areas of a law firm and a major U.S. corp.
Jane T (LLC) and 3 other Intellectual Property Law Specialists are ready to help you
Customer: replied 5 years ago.
Jane - Thank you. On your last point, I wouldn't copy it all. I bought and downloaded a TOU, but it doesn't have about 6 paragraphs I need that cover posting of ads. I wouldn't copy even those from craigslist, but would paraphrase, fitting to exactly what I am doing. But you suggest that even this runs afoul of a copyright. My choices: ask craigslist if I can use it (unlikely they'd say yes), pay some attorney a boatload for something that should be off-the-shelf since we are not breaking any new legal ground here, or ... What? Know where there would be TOU language applicable to ad posting, and not copyrighted? I'd pay a modest sum to download, and I'm no dummy, and could fit standard language into my situation. Your thoughts?/
Expert:  Jane T (LLC) replied 5 years ago.

DearCustomer

 

There were two parts to my original post. The first deals with the copyright issue and ends with the words "too would likely be enforceable)." The part about the copying of someone else's ToU is a part of contract and ebusiness law. Actually, the reason to have an attorney write a ToU, just like having an attorney write a contract for something like selling a boat, business or something that has been done a hundred times before, is NOT because "new legal ground" is being broken but because every use and every website is unique and the dangers, risks, and protections it needs are unique. Copy, or paraphrasing something (even if it avoids a copyright violation as it is different enough) may lead to a situation where a person ends up with something that not only fails to provide them appropriate protection but which actually makes them liable for failure to follow their own policies, misrepresentation, failure to protect consumers, and anything else.

 

The reasons contract are written the way they are is because of the importance courts, and the law, place on language. Language that many may believe provides a clear explanation for their purposes may utterly fail to provide a legally enforceable term. For example, some may thing a term "Notify seller of any problems to cancel contract." would be sufficient to let a buyer off the hook if he/she has a problem, but probably not. For one thing, what is a "problem" (does anything else in the contract define it?). Second, how is that "notice" supposed to be delivered? If that is not spelled out then a court has to figure out if the "delivery" made was "reasonable" and if the "notice" contained sufficient language to be enforceable? The point of the example is to show how specific,accurate, and important language becomes in law. I was shocked when a law professor explained that cases have been lost based on how a comma was used or inappropriately placed in a contract. That may seem small, but it is accurate.

 

Coming up with one's own language may be simple, but assuring the language one uses means what one thinks it means, in the legal world, is a far more difficult matter. It can take me a week to write a "simple" contract of just a page or two, even where no new legal ground is broken. That is because assuring the language does not fail in its purpose or later create more problems than it avoids is difficult, even for a person with a legal degree.

 

I have seen sights that do provide ToU, Privacy policies, etc. (although I cannot remember the names of any at this time). These sites normally suggest anything created be run by an attorney and, preferably that would be an attorney who is knowledgeable in the area of cyberlaw or ebusiness or technology law.

 

 

Customer: replied 5 years ago.
Although I'm not a lawyer, I've worked with corporate contract lawyers for a few decades when I worked in a larger company. I put together major contracts, combining my knowledge of the business side specifications with more standard liability, termination, choice of law and other parts, and THEN ran it by an attorney, paying for only an hour or two of attorney time, rather than a week had I turned the full job over to an attorney. I would like to do that here. In any case, you have answered my question, and I will pay. Unfortunately, I still do not have a path to a solution, but I thank you.
Expert:  Jane T (LLC) replied 5 years ago.

DearCustomer

 

I have reviewed contracts have drafted and sometimes it is better and less expensive, but not always. Because ebusiness is a fairly new area there is little "precedent" to fall back on and things can change with new court decisions. I just wanted to be sure the reply included the risks of copying or creating own language.

 

Thank you for using JA.

 

 

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Alex Reese

    Lawyer

    Satisfied Customers:

    2588
    Experienced in intellectual property law
< Last | Next >
  • http://ww2.justanswer.com/uploads/sosolid007/2010-08-05_070536_Suitpic.jpg Alex Reese's Avatar

    Alex Reese

    Lawyer

    Satisfied Customers:

    2588
    Experienced in intellectual property law
  • http://ww2.justanswer.com/uploads/scottymacesq/2009-6-10_221523_small.jpg Robert McEwen, Esq.'s Avatar

    Robert McEwen, Esq.

    Lawyer

    Satisfied Customers:

    387
    Licensed Texas General Practice Attorney
  • http://ww2.justanswer.com/uploads/tswartz123/2010-02-08_225658_Tommy.jpg Thomas Swartz's Avatar

    Thomas Swartz

    Lawyer

    Satisfied Customers:

    374
    Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    371
    I assist my clients with IP questions that arise in their daily course of doing business.
  • http://ww2.justanswer.com/uploads/personwilt/2010-1-10_164828_person1.jpg Wilton A. Person's Avatar

    Wilton A. Person

    Lawyer

    Satisfied Customers:

    339
    MBA, Experienced and Knowledgeable in Intellectual Property Law
  • http://ww2.justanswer.com/uploads/BA/bart0358/2012-1-23_232424_1056.64x64.JPG BartEsq's Avatar

    BartEsq

    Researcher

    Satisfied Customers:

    192
    Juris Doctor
  • http://ww2.justanswer.com/uploads/IP/ipesq/2012-1-9_164431_RetouchPortraitHighResCopy.64x64.jpg ipesq's Avatar

    ipesq

    Lawyer

    Satisfied Customers:

    134
    Specializing in patent prosecution, trademark and copyright registration/enforcement.