Legal Question in Intellectual Property in California
I have a MMORPG (masively multiplayer online role playing game) and I'm trying to rewrite my Terms and Conditions to give me more protection. I've been looking at the Terms and Conditions of some of the largest and most successful MMORPGs and have seen parts I think would be really helpful in mine. Do I have to worry about plagarism? Can I avoid plagarism if I put it into my own words? Does putting it into my own words legally weaken it?
Here is an example taken from a paragraph in Neopets.com's Terms and Conditions: "THIS SITE AND ALL MATERIALS CONTAINED ON IT ARE DISTRIBUTED AND TRANSMITTED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEOPETS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEOPETS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVERS THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NEOPETS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS SITE WITH REGARD TO THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, ADEQUACY, COMPLETENESS, CORRECTNESS AND VALIDITY OF ANY MATERIAL RESTS WITH YOU. YOU (I.E., NOT NEOPETS) ASSUME THE COMPLETE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. "
Sorry if this question is too complicated...
3 Answers from Attorneys
Yes, your own words will likely weaken your protection.
You do have to worry about plagiarism since Neopets' TOS is copyrighted and it would be trivial for them to catch you. And yes, if you change it a little bit it will possibly work for you. The difficulty is, you're not a lawyer and you don't know what small changes are important or unimportant or could have unintended effects. I've never understood why people think ALL CAPS affects the legal validity of their document. For that matter, if somebody really had a valid reason to sue you I doubt that you would be effectively protected by some boilerplate TOS that merely says you can't be sued for anything, ever. For fun reading and more info on warranties and how to disclaim them, you could Google [warranty merchantabililty] or [warranty "fitness for a particular purpose"] or [magnuson moss].
I agree with the attorney's above. You should contact an attorney to assist you in drafting this document. Certain word choice can create certain obligations and you need to be aware of them. Furthermore, using the other companies clause could open you up for copyright infringement.
Disclaimer: This communication does not create an attorney-client relationship and such a relationship can only be formed through a signed written agreement. This communication is not legal advice and should not be solely relied upon in making your legal decisions. Any situation depends on many different facts and specific laws that require an in-depth legal consultation to evaluate the best solution for your needs.
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