“By using or visiting the YouTube website or any YouTube products, software, data feeds, and services provided to you on, from, or through the YouTube website (collectively the “Service”) you signify your agreement to (1) these terms and conditions…”
Browsewrap agreements tend to be difficult to uphold in court. Clickwrap agreements are usually upheld unless they contain eyebrow lifting language such as “the user transfers ownership of his or her soul to Faceb…” err, some imaginary site.
Any halfway decent set of terms will next contain a minimum age clause. This language restricts the use of the site to individuals over a certain minimum age. There are two reasons for this – capacity and COPPA.
If the website in question sells something, then one or more clauses detailing critical ordering issues such as payments, refunds, returns, processing, and delivery schedules must be included in the terms.
Under copyright law, the person who creates a tangible work is automatically considered the owner of the copyright associated with that work – a concept known as common law copyright. Common law copyright causes online businesses a host of problems. Primary among these is can a website publish content uploaded by a user without getting express permission from that user?
The answer involves a deep dive into the murkiest areas of the law, a place where one can easily become confused while also finding a sure cure for insomnia. Few lawyers dive to such depths. Instead, they deal with this problem by inserting a clause in the terms in which the user grants the site a license to publish the content.
Code of Conduct
Every site needs a code of conduct to keep the trolls under control. If a troll proves particularly unruly, the site can then claim a breach of the code and eject the troll off the web and into the sun where they turn into stone never to be heard from again…or something like that.
The Digital Millennium Copyright Act of 1998 provides websites with immunity from copyright infringement lawsuits based upon content uploaded by users of the site. If I take a video of a movie at the theater and upload it to YouTube, the site cannot be sued. I can, but not the site.
This DMCA protection keeps sites from being dragged into court endlessly for content they did not post so long as the site meets certain requirements such as publicly designating a DMCA agent [try DMCAAgentService.com if you need an agent] to receive complaints. Posting a DMCA policy is another one of the requirements. Certain lawyers include the policy in the terms while others prefer to publish the policy as a stand-alone page on the site and then reference it in the terms. Regardless of the approach, sites allowing user-generated content should have a DMCA clause in the terms.
Can people be evil? Oh, yes.
As a lawyer representing everything from forums to dating sites, I can tell there are people who will think nothing of joining a site for the sole purpose of spamming ever member of the site with an affiliate link nobody is going to click. I’m pretty sure the members of the Dora the Explorer forum aren’t particularly interested in refinancing their mortgage.
A warranty is essentially a promise that something will work as expected or, in the case of information, be accurate and up to date. If the promise is not true, one can pursue various claims for monetary damages.
A good example of a warranty in action involves a new car. When the car is purchased, the buyer has a reasonable expectation the vehicle will work for a certain period of time without needing any repairs. In fact, the car company acknowledges as much by giving the buyer a warranty that the car will function for a certain number of years or until a certain number of driven miles are accumulated. If the car breaks down before then, the manufacturer repairs it at no cost to the buyer.
What does any of this have to do with websites? Some attorneys have argued warranties of usability apply to websites. One example might be an implied warranty that if a person joins a site, that site will be up and running 24 hours a day for eternity. Any website owner knows this is an impossible standard since servers can suffer glitches, the power can go out, the new intern can accidentally erase half the backend database or 13-year-old Dima in Vladivostok can hack the site and replace the home page with a gif of a giraffe doing something unspeakable with a frog. To prevent liability in these situations, lawyers insert a warranty waiver clause that theoretically should prevent the business from being held liable for such problems.
A limited liability clause in the terms of a website benefits both the user and the owner of the site…ah, that isn’t actually true. This clause only benefits the owner of the website in question. The limited liability clause is an attempt to cap the potential damages a user can claim if something tortious occurs on the site. Tortious means illegal – the type of illegal where money damages are claimed, not the type of illegal where you go to jail. For example, the clause might cap the damage claim of a user at the total price they have paid to be a member of the site or a random number such as $759.
Jurisdiction and Governing Law
For example, a website owned by a business in San Diego should have terms requiring the user to agree that any disputes will be litigated in the Superior Court of San Diego County. The clause should also detail that California law will be used in determining the outcome of the dispute.
The value of these clauses should be apparent. Most websites don’t have the funds to defend lawsuits across the country much less across the world. If a business can force the suing party to come to the county where the business is located, the cost of defense drops dramatically as does the likelihood of the lawsuit actually moving forward.
Richard A. Chapo, Esq.