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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.
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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: 6 years ago.
Category: Intellectual Property Law
Expert:  Jane T (LLC) replied 6 years ago.



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 other Intellectual Property Law Specialists are ready to help you
Customer: replied 6 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 6 years ago.



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 6 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 6 years ago.



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.



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