Monday, August 24, 2015
Wants to Copy Website's Terms of Service
Yes, copying terms of service (TOS) without permission is infringement. However, you don't hear of many lawsuits over TOS theft possibly because the copyrights are so "thin" and the origins of so many are murky. That is, it may be difficult for a copyright owner to claim the TOS as an original work of authorship. (There's something strange -- we almost said "ironic" -- about the fact that TOS's prohibit copying yet they are so often, pilfered or cobbled together from various sites, often by lawyers). Another obstacle for someone coming after you is the "merger doctrine," a copyright principle that excuses copying if there are a limited number of ways to express an idea.
Bigger concerns. Even if the threat of infringement does not loom over your website, there's a bigger issue -- your ability to enforce your TOS against an errant user. If you sue someone over a TOS violation, the opposing attorney will want to know the origins of your TOS ... and that's when you have to reveal you nicked it from a competitor's website. It may still be enforceable but a legal shadow hangs over your TOS especially if you copied irrelevant sections or failed to remove names not applicable to your business. If you want to avoid these potential hassles, there are online TOS generators and some sites such as WordPress and Automattic have made their TOS available for others to use under Creative Commons (CC) licenses. Also, the CC folks have tried to simplify the business of creating a TOS. And of course there are always attorneys prepared to create or customize TOS for your company (or copy them from treatises).
P.S. Dept. Keep in mind that a court is more likely to enforce your TOS if the user has to click to agree.