The terms and conditions for a website are incredibly important, but a lot of people wonder what goes into the agreement and why it is so long. Terms and conditions and intellectual property rights considerations are as good a place as any to start the tale.
Most sites invite lawsuits because the terms and conditions they post are horrifically inadequate or just inapplicable to what is occurring on the site. I’ll give you an example. I was once looking at a dating site. The owner/webmaster had apparently copied the terms from eHarmony and then made a few changes. This person was not a client, so I can tell you as much.
The terms on the dating site were hilariously incorrect. As a simple example, the terms listed California as the venue for any lawsuit. The site, however, was registered to an individual in Pennsylvania. Can you imagine this person’s surprise when they learn they must fly to California to defend a case? This problem was only one of many errors in the terms for the site.
If you learn nothing else when reading articles on this site, understand one thing – the terms and conditions for a website act as a binding contract. You are as bound by those terms as is your visitor. Given this, it is critical the language reflects the reality of your site and business. “Borrowing” terms from another site or using a free terms generator is the equivalent of painting a big red target on your site and daring lawyers to sue you.
Intellectual Property Rights
Intellectual property rights include copyrights, trademarks, and patents. In your terms and conditions, you must include clauses covering the use of these rights. Let’s look at a few examples.
Assume I have a blog. I own the copyright to everything I write on the blog. I need to define how readers can use my content in my terms and conditions. For example, can visitors copy and paste the articles in a forum? How about on another blog? The answer needs to be spelled out in the terms.
Now let’s take a look at the issue from the other side. Let’s assume we have a site where we allow individuals to upload content. The content could be anything from text to photos to videos to music and so on.
The individuals uploading the content own the copyright to the material. As a site, what right do we have to use the material? What if we want to create marketing material for our site that includes some of the material, such as in a screenshot image? We may run into problems if an individual sees their identity and content in our marketing materials. To prevent such a result, we must address the issue in our terms.
On top of all this, any site allowing members to upload content is going to need to comply with the Digital Millennium Copyright Act of 1998. Part of the compliance process involves including specific language and a DMCA agent contact point in the terms. If a site complies with the DMCA, it can avoid being sued for copyright infringement. If the site fails to comply, it is going to lose this “safe harbor.” Failing to put the correct language in one’s terms is one way to fail.
YouTube is a company in a unique position when it comes to intellectual property. The company allows individuals to post videos. The company also gives these individuals the option to “share” the videos with other YouTube members in a manner allowing those members to repost the videos on their independent sites.
YouTube must address the intellectual property issues surrounding these practices in its terms. This necessity is one reason the terms and conditions for sites such as YouTube and Facebook are so long. Do your terms and conditions address intellectual property issues? Do you really know what they state?
Terms and conditions are incredibly important when it comes to protecting yourself from legal claims. Intellectual property rights disputes are the single biggest cause of lawsuits on the web. Using your terms to position yourself to minimize the risks associated with copyrights, trademarks and patents is a must unless you enjoy being sued.
If you have questions about your terms and conditions and intellectual property rights, feel free to contact me for a free review.
Richard A. Chapo, Esq.
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