Can one copyright a legal agreement?
October 17, 2007 3:02 PM   Subscribe

Is it possible to copyright a legal agreement? I'd like to do some cut and pasting of a few Terms of Service agreements but don't want to run afoul of the law.
posted by Pinwheel to Law & Government (24 answers total)
 
Get a lawyer. If you cut and paste a few terms of service agreements, don't expect the finished product to have anything resembling the desired legal effect.

Someday, when you get sued, you'll wish that you had spent a relatively small amount of money to get your agreements done right rather than hundreds of thousands of dollars to fight a lawsuit where you have to defend the cut/paste job.
posted by The World Famous at 3:09 PM on October 17, 2007


That's not in the budget at the moment. But what do you think, if I used a found TOS, am I violating copyright law?
posted by Pinwheel at 3:22 PM on October 17, 2007


I don't know whether or not it is possible to copyright such an agreement, but The World Famous is probably correct - you should get a lawyer to do this. If you insist on going it alone, know that every capitalised word in a legal document is assigned a meaning elsewhere in the document. So if you cut and paste willy-nilly, you'll need to make sure that all of your terms are defined. (not a lwayer, not legal advice)
posted by taliaferro at 3:27 PM on October 17, 2007


Will it be in the budget when you get sued? You cannot half-ass these things. The regrets I see when they come into my office--Nobody would try to cure themselves of cancer, why don't they pay a few hundred to get a lawyer to draw this sort of thing up? The only purpose of a TOS is to get people to comply with it. The only way you know is if you are suing them for violating it. If you didn't do it right, your ass will be in a sling and the whole purpose of getting the TOS agreement will be lost.
posted by Ironmouth at 3:27 PM on October 17, 2007


that every capitalised word in a legal document is assigned a meaning elsewhere in the document.

Reason number one not to do this yourself. This is simply not true. Sometimes it is, but you can't make blanket statements like this.

No offense, but you can't play guess with this shit. You just can't.
posted by Ironmouth at 3:30 PM on October 17, 2007


Ironmouth, I accept your wisdom on this matter. But the question is: is it possible to copyright a legal document?
posted by Pinwheel at 3:32 PM on October 17, 2007


okay, besides the "get a lawyer" remark, yes, TOS agreement are copyrighted. Basically everything is copyrighted.

That being said, I don't think you'll get in trouble because most TOS agreements are basically the same.

If I were a cash-strapped startup looking to cut corners, I'd still get a lawyer. I don't think you should worry about getting sued for copying somone's TOS if you're not worried about your TOS being totally ineffective.

I don't know what you're doing this this for, but if it's some sort of web app, just copy it. The moment you generate revenue, please see a lawyer and revise it.

The odds of your web venture succeeding are small, so I see why you're trying to cut corners...but seriously TOS agreements can be boilerplated out pretty easily (do you not have any lawyer friends? lawyers who will do it free as long as you get future services from that lawyer?)
posted by unexpected at 3:33 PM on October 17, 2007


the answer is, it depends. To copywright something is one thing. To enforceably do so is another.

One thing I would not do is copy a realtor's association contract. They are animals with that shit.

It isn't something you can just answer, that's the problem. Few legal questions have an easy yes/no answer to them.
posted by Ironmouth at 3:56 PM on October 17, 2007


Wordpress has licensed its Terms of Service under Creative Common's "Attribution-Share-alike" license. Would this TOS fit your needs?
posted by null terminated at 4:03 PM on October 17, 2007


That's not in the budget at the moment.
posted by PinwheelPoster at 5:22 PM on October 17


Then you shouldn't be running a business. Seriously. You haven't budgeted to seek appropriate legal advice about something you perceive to be an important issue for you, and yet you want to run a contract-based business with important terms and conditions? And you want to run a business? Even more astounding--you would seek legal advice over the internet from either (1) people who are unqualified to give it to you or (2) people qualified, but professionally prohibited from doing so? You need to re-evaluate your budget and priorities.

Drafting your own legal document is legally precarious insofar as you may not be protecting yourself appropriately. Wholesale copying something is legally precarious, as well.

Think of it as your health. Would you say, "It's not in my budget to go see a doctor right now, but I this funny looking mole on my hand. I saw someone remove a mole once, so I am thinking about doing it myself"?
posted by dios at 4:07 PM on October 17, 2007


Would this TOS fit your needs?
posted by null terminated at 6:03 PM on October 17


I'll let this go, but let me just add that the answer to null terminated's question is something that the poster won't know. And therein lies the problem of doing your own legal work. "I think I have everything covered" is dangerous unless you know what needs to be covered.
posted by dios at 4:10 PM on October 17, 2007


(And what Ironmouth said.)
posted by dios at 4:11 PM on October 17, 2007


okay, besides the "get a lawyer" remark, yes, TOS agreement are copyrighted. Basically everything is copyrighted.

Whoa, whoa, whoa there.

A TOS agreement may be copyrightable, but that's certainly not something you can just assume. Copyright requires an "original work of authorship". It is safer to assume that a TOS is copyrighted than to assume that it's not, but, to be pedantic, you simply can't say that "all ___ are copyrighted".

The two answers you're looking for are these:

1. Get a lawyer
2. If you insist on not getting a lawyer, why not just send emails to the sites you want to use the TOS of and ask if you can use their verbiage? (Assure them that you won't hold them responsible if it's not good enough/legally enforceable/etc)
posted by toomuchpete at 4:51 PM on October 17, 2007


TooMuchPete, the Berne Convention is really very broad. Effectively, everything anyone writes is automatically copyrighted.

A claim that something is not an "original work", and thus isn't entitled to copyright protection, requires a court challenge. Absent such a challenge, the presumption is that copyright is in force.
posted by Steven C. Den Beste at 5:00 PM on October 17, 2007


I'm not sure anyone would say, "Yes, go ahead and copy my TOS" if you asked.

Once upon a time I was looking at starting up a webhosting company, and we worked with a lawyer on several things, including a TOS/AUP. He basically told us that, given our budget, we should visit lots of competitors and 'model' ours on theirs, and then have him do a final review.

I think you'll find that most AUP/TOS are practically the same anyway. I've noticed some pretty obvious cut-and-paste jobs, even: every now and then they screw up and don't even remove all the references to the place they lifted it from. (It should go without saying that these are extremely small places and not 'real' businesses.)

That said:

(1) IANAL, and am not actually saying you should copy someone else's. I'm just saying it's common and that it's usually impossible to tell.

(2) You'll probably be fine if you don't have a lawyer look it over. Just like you'll probably be fine if you drive your car with no insurance, and that you'll probably be fine if you use your woodstove even after you decide that paying for fire insurance is a waste of money. In other words, it's probably a good idea to have a real lawyer look it over. If nothing else, do it on your own and then ask an attorney to just look it over.
posted by fogster at 5:14 PM on October 17, 2007


I would go for it. Your odds of being called out on it are close to nil. I would review a couple of sites and synthesize them for maximum obscurity.

Boilerplate language and pleadings are notoriously cannibalized from other sources. I do it all the time.
posted by Mr_Crazyhorse at 6:53 PM on October 17, 2007


I don't mean to be rude, honestly. But neck and neck with reason number one to get legal advice -- because many right-thinking people on the site tell you to -- is reason number two, which is that most of the authoritative-SOUNDING legal advice, including from people who tell you to get a lawyer, is just wrong. Even what To take just one example, what the reasonable Steven Den Beste writes is way too categorical, doesn't adequately distinguish between the act of copyrighting (writing down) and whether the material is copyrightable, and the part about the need for a court challenge has a lot of assumptions built into it -- and, by the way, the presumption that something is copyrightable attaches only upon registration.

But to stop being prickly and answer your narrower question, "is it possible to copyright a legal document?" Yes.
posted by Clyde Mnestra at 7:05 PM on October 17, 2007


Public Citizen has a hilarious letter on their website in response to a sleezy lawyer claiming that his victims can't publish the outrageous demand letter he sent them because it is copyrighted. Of course, Public Citizen posted his demand letter too.

I take this to mean that it's ok for you to use the TOS, especially if they don't specifically prohibit it.
posted by alms at 8:17 PM on October 17, 2007 [1 favorite]


Public Citizen has a hilarious letter on their website in response to a sleezy lawyer claiming that his victims can't publish the outrageous demand letter he sent them because it is copyrighted. Of course, Public Citizen posted his demand letter too.

I take this to mean that it's ok for you to use the TOS, especially if they don't specifically prohibit it.


You're joking, right? There's a huge fair use difference between the situations.
posted by Clyde Mnestra at 8:23 PM on October 17, 2007


Also, a document which is produced by a lawyer is considered a work product. Use of said product for other than fair use considerations can be construed as violation of copyright in the same way that use of music could be. Both are composed as part of the person's work and choosing to use someone else's work as your own brings a whole mess of nightmares.

Please, budget for the lawyer of your own. You will thank yourself if you EVER go to court over the thing.

That being said, I have seen a Chinese video game company which, when I read their TOS, it had a ton of spelling errors from the translation program they used. Also, they even forgot to replace World of Warcraft with their own game's name in a couple of places.
posted by slavlin at 9:38 PM on October 17, 2007


As a lawyer, I'd be shocked if there was a common legal document in existence that wasn't a Frankenstein-like amalgamation of prior words, phrases, and terms. Of course, every document has its new, unique provisions. But starting from form language is a daily occurrence for transactional lawyers.
posted by pardonyou? at 6:50 AM on October 18, 2007


Amazing. I had been wondering this for a while and ask.mefi comes to the rescue. I had assumed that, as Steven C. said "Effectively, everything anyone writes is automatically copyrighted."

But here's a twist. Lawyer A sends me a legal agreement. I make a few amendments and revisions and send it back to him. He reviews, agrees to my changes and sends the modified version it back to me to be signed. I sign it.

At this point, I have provided content and modified the contract and it is no longer an original work. Or is it? Would I be able to turn around and use that contract (assuming it's something boilerplate like an estoppel) with the expectation that my use would be supported in the event of a challenge?
posted by mjbraun at 10:22 AM on October 18, 2007


Mjbraun, I am not sure what lesson you've extracted from this discussion, but if it's anything other than "it depends," well . . .

In your hypothetical, IF we assume the original work was copyright-protected (e.g., that it was original, not simply functional, etc.), your innovative use may still be restricted as an infringement of the original author's rights in derivative works. Fair use, etc., would still be germane as defenses.
posted by Clyde Mnestra at 11:01 AM on October 18, 2007


1. I've asked (and received permission) to use portions of a TOS before. It's really not something that most people really care about "owning", in my experience.

2. "Effectively, everything anyone writes is automatically copyrighted."

Simply not true. There's an entire category of things (in the U.S., at least) which are uncopyrightable, to say nothing of the originality requirement. The Berne Convention is primarily about reciprocity, not about what is copyrightable. It also explicitly recognizes that different countries have different copyright protection schemes, by requiring countries to recognize all works published/performed within their borders to be protected equally regardless of where they were originally published/performed.

The closest that the BC comes to setting copyright standards is its three step test, which is really more of a limitation on limitations than anything else, and it's only been tested once, IIRC.

From OPs position, this is certainly the safest assumption to make, but in the interest of people who might come back here later under different circumstances, the distinction is worth noting.
posted by toomuchpete at 12:36 PM on October 18, 2007


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