Intellectual Property Law
Intellectual Property Law Questions? Ask a Lawyer
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.
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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