Is It OK To Steal Terms of Use From Someone Else’s Website?
The Terms of Use, sometime referred to as Terms of Service, is a legal document that details the rules for using your website. Among other things, your Terms of Use specifies how you will resolve disputes that may arise between you and users of your site, limit the amount of damages you may be liable for in a dispute, disclaim liability for specific actions, limit and control user access to protected content, and protect your intellectual property.
As you can see, having a well-written Terms of Use can be very beneficial for your website. So you may be wondering, “Do I have to hire a lawyer to write my Terms of Use, or can I simply borrow one from another website?”
To save time and money, some website owners may decide to simply cut and paste the Terms of Use from someone else’s website, without any appreciation for the risks of doing so. At first glance, using pre-existing Terms of Use might appear to be a cost and time-saving measure, sparing businesses the effort of drafting their own legal agreements. However, this shortcut can quickly become a double-edged sword. Businesses often have unique operational models, policies, and customer interactions that differentiate them from their peers. When copied Term of Use are out of sync with these distinctive characteristics, complications are bound to arise.
While it is certainly possible to copy the Terms of Use language from another website, it is generally not a good idea to do so for several reasons:
1. Copyright Infringement
The advent of sophisticated scanning and plagiarism detection tools has transformed the online landscape. These tools are designed to comb through the vast expanse of the internet, identifying instances of duplicated content. When it comes to website Terms of Use, this means that copying another site’s Terms is no longer a hidden or inconspicuous act. Infringing content can be swiftly detected and flagged, exposing the copying website to potential legal action.
Copyright infringement is a serious matter with legal and financial consequences that should not be underestimated. To avoid the risk of facing costly legal action, it is best to refrain from stealing someone else’s Terms of Use.
2. Poorly Drafted Language or Missing Clauses
The Terms of Use that you copy and paste onto your website may be poorly drafted, which could wind up confusing your customers, or worse, causing you to agree to things that you do not necessarily want to agree to. Furthermore, the Terms of Use may not be enforceable due to poor drafting, which means that you would lose any legal protections that you thought you had.
Aside from the loss of reputation that may result from a poorly drafted Terms of Use, there are real risks to your business if the legal agreements that govern use of your website are poorly drafted.
Seemingly minor details can have major legal implications. Consider warranties and subscription renewals: specific formatting requirements such as using all capital letters can affect the enforceability of these terms. If these crucial clauses are not presented conspicuously, they may not be enforceable in certain jurisdictions, leaving the business vulnerable to legal challenges and unfavorable outcomes.
Missing Protections: A Critical Oversight
Copying Terms from another website often stems from the assumption that those terms cover all necessary legal protections. However, this assumption is far from accurate. It’s alarmingly common for copied Terms to lack essential elements, including crucial protections for intellectual property, disclaimers of liability, dispute resolution mechanisms, and guidelines for prohibited uses of the website.
In addition, some of the so-called “boilerplate language” regarding choice of law or choice of venue, which dictates where and how disputes may be resolved and under what body of law, could inadvertently leave an unsuspecting website owner forced to travel to an inconvenient location, such as another state, to resolve any legal disputes that may arise.
3. Different Business Model or Business Practices
The Terms of Use most likely will not apply to your website as every website is different and you may not want to find yourself bound by the unfavorable terms of someone else’s agreement.
Refund Policies: A Case Study
Consider a scenario where a business copies the Terms of Use from another company that allows customers to request refunds without any reason. However, the copying business operates on a policy of offering refunds only within a specific timeframe or under certain circumstances. When a customer demands a refund, citing the copied Terms of Use, the disparity between the actual practice and the copied policy becomes apparent.
In this situation, the copying business may find itself in a difficult position. Customers who believed they were entitled to a no-questions-asked refund might be disappointed or even angered when the reality doesn’t match their expectations. This could lead to legal disputes, bad reviews, and a tarnished reputation. Additionally, the business might have to decide whether to honor the mismatched policy or inform the customer of the actual refund policy, both of which could result in dissatisfaction.
Warranty Woes
Another potential issue arises when businesses copy warranties from other companies’ Terms of Use that don’t align with their own warranty practices. If a company that typically doesn’t offer warranties suddenly finds itself bound by copied terms that promise years of coverage, it could face significant financial liabilities and operational challenges.
Customers may rely on these warranties when making purchasing decisions, only to be disappointed when the company fails to deliver on the promise. Furthermore, the company might need to allocate resources to handle warranty claims and repairs that they weren’t prepared for. Such a disconnect between the promised warranty and the actual practices can undermine customer trust and lead to costly legal battles.
In both of the above scenarios, any upfront savings from copying someone else’s policies is illusory. Rather than spending a little bit of money up-front to hire an experienced website attorney to draft their Terms of Use, the business may end up hiring a more expensive litigation attorney to defend them in a costly legal dispute that may arise in the future.
To avoid the pitfalls of copying Terms that don’t align with their business practices, companies should invest the time and effort to develop their own carefully tailored agreements. This involves understanding the company’s unique operational aspects, customer interactions, and the legal and regulatory landscape it operates in.
Consulting legal experts can be invaluable during this process. Attorneys with expertise in business law can help draft Terms that not only comply with relevant regulations but also accurately represent the company’s actual practices and policies. Crafting Terms that are in line with the business’s operations helps build customer trust, minimizes disputes, and safeguards the company’s reputation.
4. Navigating Consumer Protection Laws
Consumer protection laws vary significantly across different jurisdictions, and they can significantly influence the contents of a company’s Terms of Use, particularly when it comes to transactions involving consumers. Countries like the United Kingdom and Australia have strict rules regarding what can and cannot be stated in Terms of Use concerning consumer purchases. For instance, the consumer protection laws in the United Kingdom may require businesses to allow consumers the right to cancel purchases and prohibit charging cancellation fees. Failure to incorporate these mandated terms could lead to complaints from buyers and subsequent investigations by authorities, potentially rendering the entire Terms of Use unenforceable.
The intricacies of these laws can catch businesses off guard, especially if they are copying Terms from other sources without a clear understanding of the legal landscape that exists in every market where they plan to do business. While copying someone else’s Terms might seem convenient, it can inadvertently omit or misrepresent crucial clauses that align with consumer protection laws. In essence, a “one-size-fits-all” approach falls short in accommodating the diverse legal requirements that different businesses face, depending on where they plan to do business.
Conclusion
In the digital age, businesses often look for shortcuts to save time and resources. One common shortcut is copying existing Terms of Use from another company’s website and applying them to their own operations. While this approach might seem convenient, it can lead to significant problems if the copied terms do not align with the actual practices of the business. From refund policies to warranties, mismatches between the copied Terms of Use and a company’s actual operations can result in confusion, disputes, financial losses, and wasted time.
In short, you will not reap the benefits of having your own Terms of Use on your website if you simply copy from another site. Instead, it is recommended that you hire an experienced attorney to draft your site’s Terms of Use, rather than steal someone else’s work.
If you are looking for Terms of Use that are customized for your business and that includes all of the protections that you need, please feel free to contact my office for assistance.
Marc Rossen
Attorney at Law
Marc Rossen is an attorney who’s practice includes helping web-based businesses navigate the ever-changing legal requirements for websites.