Like you, I often waste innumerable hours surfing the web instead of getting something done. I constantly see sites without the proper legal documentation. Yes, I actually look at these things. Community sites tend to be the biggest offenders. With this in mind, let’s look at why a community website must have terms of service.
Our Community Site
Since legal articles can be a tad bit dry, let’s come up with an interesting community site…say a nudist site. Members of the site will be able to communicate with each other in a forum like atmosphere and post user generated content such as their photos, videos and what have you. The community area will be password protected, but anyone can join the site.
So, what legal issues does this site potentially face? A host of them and the terms of service would need to cover all of them.
What if someone uploads an image of their nudist family and there is a child of 2 in the picture? While most people would not consider this child porn, it could qualify and there is undoubtedly any number of law enforcement officials who would assert as much. The last thing you want as the site owner is to be dragged into court with the family on child porn charges.
Your terms can help prevent such a situation by requiring all members to be a certain age before signing up. One would also include strict prohibitions regarding the content that can be uploaded in photos and so on. Obviously, these would also need to be communicated as part of a set of site rules published within the site itself.
The federal government has issues with nudity. Most adult companies must comply with section 2257 of the United States Code. This requires the companies to maintain model releases for any of their actors. A close inspection of this section and the case law attributable to it would need to be conducted to determine if the community was required to comply as well. If so, the information would need to be incorporated into the terms of service.
If a member posts a nude photo on their site, can you use it? If so, how? These provisions would be covered in a copyright licensing clause in your terms of service. The minimum license would allow you to republish the images on the site, but what about in marketing pieces? This is an area of law every site has to muddle through and our nudist community site would be no different.
Any site that allows members to post content must comply with the Digital Millennium Copyright Act. The reason is a member may post content that they do not own or have the right to post. The true copyright owner can then sue that person and your site for copyright infringement. The “DMCA” creates a safe harbor from such claims for sites so long as you follow certain requirements such as designating a DMCA agent, which is to say you are given immunity. This is how sites such as YouTube and Facebook do not spend every minute of every day in court defending copyright infringement lawsuits.
While your community site probably isn’t going to have child porn and nudity issues, it will need to address privacy, content licensing and definitely DMCA topics. The terms of service are where these issues are addressed, which is why every community site needs them.
Contact me if you have or are launching a community website and need legal documents.
Richard A. Chapo, Esq.
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