Can I steal someone’s TOS / TOU?
December 31, 2009 1:23 PM   Subscribe

Can I steal someone’s TOS / TOU?

I am starting an online business where products we will offer are downloadable content (spreadsheets, instructional videos, templates, etc.). I want to create a “Terms of service” / “Terms of Use” wording that will represent my interests while allowing the user a great deal of freedom.
Another website has a great TOS/TOU disclaimer that is exactly what I would want. Is it ok to copy and paste it and use it as my own? I would obviously be replacing their company info with mine, and I don’t see any copyright information on the TOS/TOU itself.

Are there any issues with this?
posted by jseven to Grab Bag (8 answers total) 5 users marked this as a favorite
No. Period.
posted by Spurious at 1:28 PM on December 31, 2009

The relevant section from here says, "...appropriating text from third-parties without permission is illegal, unless there is some substantial "fair use" justification for the taking. Use of third-party text pursuant to a license agreement should follow the terms of the license agreement. As for public domain works, one should never assume a work is in the "public domain" without independent investigation. "

Which I would take to mean everything, including a TOS agreement, but IANAL.
posted by Menthol at 1:30 PM on December 31, 2009

All text (and other media) is copyrighted as soon as it's typed, notice or no.
posted by delmoi at 1:49 PM on December 31, 2009 [1 favorite]

I don’t see any copyright information on the TOS/TOU itself.

Copyright vests immediately upon fixing a work in a tangible medium of expression. In this case, that means the moment the author hit 'save' or posted the TOS online. There is no requirement to put 'Copyright 2009' or '© 2009' or any such thing. Those are useful for ensuring actual notice, which is important for damages calculations, but it's not required for copyright protection to exist.

In a previous question on this very topic null terminated posted that the WordPress TOS is Creative Commons Sharealike licensed, so perhaps that TOS or another CC-licensed TOS would suit your purposes with necessary modifications.

Alternatively, have you considered simply asking the owners of the TOS you'd like to use as a template? I'd wager you'd get permission to use it.
posted by jedicus at 1:56 PM on December 31, 2009

Best answer: That's an interesting question -- difficult to search for, and I don't know the answer even though IAAL (although IANYL and TINLA). I think a contract, license or similar legal document, written from scratch by somebody, is likely proper subject matter for copyright to attach. (Certainly, if the author called it a "short story" instead of a "contract," nobody would argue that it couldn't be copyrighted.) On the other hand, certain legal documents, once filed with a court or agency, are fair game for other people to plunder.

One point in favor of such documents being copyrightable, and therefore risky to take without permission, is that some licenses and terms of use expressly provide terms on which you may or may not use them for your own purposes. For example, the Wordpress terms of service are placed under a Creative Commons license. If your use fits within the CC terms, you could use that TOS.

There was another AskMe question a few years ago, but none of the answers really stood out. What you'd want to see is a cite to a court case where the issue was considered and decided. Unfortunately, as I said, it's difficult to search for the topic, because "contract" and "license" appear in almost every case that also mentions "copyright," but not for the reasons you're interested in.
posted by spacewrench at 2:01 PM on December 31, 2009

Solid, legally defensible TOUs are created expensively, with the aid of lawyers. For a starter TOU I have in the past read a bunch of them to understand what was necessary to create a basic one on our side; but when money starts hitting the table - i.e. when people are paying for this usable item - then you will, for the protection of your own interests, want to involve a legal person on your behalf to help craft TOU that are legally valid.
posted by Billegible at 2:45 PM on December 31, 2009

Any document of that nature is a copyrighted work, so its form of expression is protected. Thus, if you directly copy a substantial amount of the text, you'd be infringing copyright unless you could argue that some defence applied (which would be unlikely if the purpose of your copying was, in essence, to save yourself some effort).

However, there is a grey area as to what constitutes copying of expression. For example, direct copying of a substantial amount of a text will definitely be infringement. Paraphrasing might possibly be. At some point, if your 'copying' is a copying of abstract ideas or information and not the actual expression of said information, you may not be infringing. This distinction turns on the facts of each case and is something only a lawyer could advise you on.

Having said that, there may be similar documents in the public domain or in precedent/boilerplate websites. Those would be freely useable as long as they are legitimately public domain works.

You should be careful to note the distinction between a disclaimer, 'terms of use' and some sort of contract or licensing agreement. If you are seeking to create a complex or commercial relationship, you might want to consult a lawyer.
posted by kid A at 5:42 PM on December 31, 2009

I am not a lawyer - so someone more knowledgeable than me should correct me - but I believe that the reason some boilerplate disclaimers/documents are widely used and copied is that they have been around so long that whatever creativity of expression they once held has been diluted to the point that 1) it is doubtful that any one person could claim authorship; 2) there is no commercial value in protecting any subsisting copyright in a simple boilerplate such as the disclaimer at the end of a company email.
posted by kid A at 5:46 PM on December 31, 2009

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