Is it Legal to Copy a Terms of Service, Terms of Use or Privacy Agreement from Someone Else’s Website?

Is it Legal to Copy a Terms of Service, Terms of Use or Privacy Agreement from Someone Else’s Website?

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We get contacted from prospective clients almost on a daily basis asking if it is OK to use a website agreement form or copy and paste someone else’s website agreement into their own website. Is it illegal to copy someone else’s terms of use and place it onto their own website? Is it illegal to copy someone else’s privacy agreement and put it on their own website? The answer is that it depends on whether or not the person who you are copying from has copyright protection, copyright ownership in those website agreements.

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It seems that every website out there has its own terms of service, terms of use, and privacy agreement. Why can’t I just copy someone else’s website agreement, or website agreements, in order to place them on my own website?

My name is Internet Law Attorney, Enrico Schaefer. I’m here to discuss the pluses and minuses of cutting and pasting someone else’s website agreement, and placing it on your own website. The first question that we always get from prospective clients about this issue is, is it legal or illegal to copy someone else’s terms of service and put them on their own website? Is it illegal to copy someone else’s terms of use and place it onto their own website? Is it illegal to copy someone else’s privacy agreement and put it on their own website? The answer is that it depends on whether or not the person who you are copying from has copyright protection, copyright ownership in those website agreements.

Now, that can be a relatively complicated issue. If the website owner who you’re looking to copy from has hired an attorney or otherwise drafted their terms of service or terms of use or privacy agreements in a way in which a court would consider it to be an original work, that is to say they just didn’t copy it from someone else, then they probably have copyright protection in those website agreements. If they have copyright protection in those website agreements, then you’re cutting and pasting those and putting them onto your website could result in a claim of copyright infringement.

The first thing I always tell folks is, because you don’t know the extent of copyright protection in someone else’s website agreements, you should never cut and paste them and put them onto your own website. But there’s a more important issue here. Why would you want to simply cut and paste someone else’s website agreements? You have a unique Internet business model. If you’re a startup company or a small business that is looking to grow, and you’re looking to upgrade your website agreements, then you should contact an Internet law attorney, who can help you draft those agreements specific to your business model.

Every business model has unique risks. Every web play, every Internet offering brings unique issues to the table, and your website agreements need to deal with those issues. If you’re collecting a particular type of information, then your website privacy agreements need to disclose and reflect that. If you are particularly risk adverse on a particular issue, then your terms of service needs to make sure that you aren’t offering any warranties that back your disclaiming warranties concerning those issues,  limiting damages and controlling venue and choice of law, and some of these other things that could be very important to you.

What I always tell clients is this, your website is incredibly important to your business model. If you end up having someone coming to your website and engaging in a transaction with you, or perhaps just reviewing the information on the site, you may have entered into a contract with that person. If something goes wrong, they might sue you. The first thing the court is going to look at is your website agreements in order to see what the terms of your relationship are with that potential website visitor or customer.

These agreements are perhaps the most important agreements that you will ever have. They’re not specifically negotiated, so you don’t have to come up with a new website agreement every time someone comes to your website. You get to do it once, and it gets to apply to everybody. That’s the good news, right? You don’t need a contract every time. You’re simply going to put it on a template. That contract is going to become a contract between you, your website visitors and your customers. You get to do it once. Do it once, and do it right.

If you’ve got a privacy agreement or a terms of service agreement, or a specialized e-commerce agreement, what you need to do is make sure you’re putting one of those agreements in play that is going to be specific to your business. If you’ve already got an agreement in place, you need to take a look at upgrading that agreement to suit your business model or to accommodate any changes in your business model that may have occurred.

I always tell clients, think about these website agreements in terms of versions. You’re going to dedicate a sum of money to get them to a certain point. Then as revenue and budget allows you’re going to upgrade those agreements to increase your protection, increase your customer satisfaction. Make sure that you are disclosing the right information, including the right provisions and protecting your company. You don’t want to bet the farm because you didn’t spend a little bit of money getting the right website agreements in place.

My name is Internet Law Attorney, Enrico Schaefer. We’ll see you next time.

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