Legal Question in Technology Law in California

Re: Terms of Use question

Web site policies should be specific for the web site. One size does not fit all.

Also, you should know that if you are engaging in e-comerce by taking credit card numbers over the web site, California law requires additional specific language in your web site policies.

Your best option is to hire an attorney to help you. Yes, it may cost a couple thousand dollars, but it is cheaper in the long run than getting sued (which will run tens of thousands of dollars in attorneys' fees).

If you have a first draft of your policies already (even if they are lifted from another site), that can reduce the number of hours your attorney will have to spend on the project, but please do not make the mistake of thinking that you can do this without an attorney qualified to advise you and competent in this area of the law.

For more information about web site policies, go to http://www.timothywalton.com/weblaw.html.

Re: Terms of Use question

You have two separate issues here. The first is whether your proposed use of the language would violate any copyright. The second is whether your proposed use of the language would violate the terms of use of the partially-copied agreement.

The answer to the first question depends in part upon whether the material you propose to "lift" is formally copyrighted or merely subject to a common-law copyright due to authorship. More-or-less "stock" legal clauses and agreements are occasionally copyrighted, but more often than not the company, or its lawyer, has "lifted" the language, or most of it, from someone else who has, in turn, lifted it, and so on. Also, it would be hard to prove originality sufficient to prosecute for material that isn't formally copyrighted and identified as such. Therefore, I would say that unless the material is clearly marked as copyright-protected, AND you rephrase it at least to some extent, you're pretty safe.

As to the second issue, your proposed use of part of the competitor's "terms of use" where the terms themselves prohibit copying could not be a contract violation unless you are a party to the use contract by having agreed to it. If you haven't agreed to a contract, its terms don't bind you and "violating" them isn't a breach. Even if you have agreed to the competitor's "terms of use," what could he sue you for? His damages would be slight, if any.

Re: Terms of Use question

Keep in mind that their terms of use may or may not serve the needs of your venture.