Here is the link: http://foreverplaying.com/script/terms.php Please comment on the wording, enforcability, and if there is anything I forgot to add. Thank you!
The problem with copying someone else's TOS and modifying it is laws vary according to location. One site's TOS may be fine for where they are located and not applicable in another. You need to understand that just because you post something in your TOS, it doesn't make it legal. For instance, your site isn't going to be able to use Fair Use as a defense for copyright violations. Your site runs advertising and is considered commercial. No matter what your TOS says, if you are posting content that you do not own or which you do not have express permission to use, you can be held liable in court. You should pay an attorney to review and modify the TOS according to your location and site.
Adding to what mjewel said, just having a TOS is not enough, you need to know what is in it and what your responsibilities and obligations are to your visitor. If you don't live up to what you promised the visitor, you will be in breach of contract. Further, since you are providing the TOS to the visitor on a take it or leave it basis, you are in a position to provide yourself plenty of protection in many areas if the TOS is properly created. Getting help from an experienced lawyer in this field will help you in making sure your TOS is an enforceable contract, that you have properly limited your liability, that the jurisdiction and venue are properly reserved, that you are not liable for the actions of your members, and much more. In reading the TOS you posted, I think it misses on most of these issues. _________________________ Andrew M. Jaffe Attorney at Law netlaws.us 330-666-5026
I agree with mjewel and jaffe. Unless a site is an absolute clone of a site in the same jurisdiction that happens to have a well-drafted TOS, there almost certainly need to be changes from that TOS. I would just add that when you take the TOS from another site, you are making a big leap of faith that their TOS is well done in the first place. From all the terms and conditions pages I have read on the internet, that is rarely the case.
I see. I'm running low on budget so I was hoping I could just write a simple TOS that will protect my basic rights. It doesn't have to be perfect, just enough to keep my site safe from simple problems. Did I do an okay job for that? Thanks for any help you guys could provide.
That's a funny website you have there. I already read the ToS (well quick glance ) looks ok for me. What are you worried about if may I know?
I'm worried about copyright infringement; like if someone posts their game to my site and I use their game on my site could they sue me?
Of course they could sue you. An owner is responsible for content on their site. Even if you purchased a game from someone who told you they were the owner, and it turns out they weren't, the real owner can sue you for infringement and/or demand that you pay them a usage fee. Most would probably ask that you take it down before initiating and legal action - but that is not required. If they file a DMCA with Google, your site could be removed from the search results. If you're running adsense, you can lose your account. This is where a TOS won't get you off the hook.
Then how do all these blog sites work because from what you are saying, if someone posts content to my site and they aren't the real owner, my site will take the charges?!? And in all these blog sites I'm sure that people are stealing content from other sites. Why don't the blog site owners get banned? How does this work?
If you were caught for shoplifting, would you defend the charge by saying millions of other people do it, so why are you charging me with it? Sure, not everyone get sued, but the risk of a lawsuit is always there. It's a risk you take - even youtube is being sued for copyrighted content other people uploaded - in fact, they are being sued for a billion dollars. Even if youtube wins in court, they will be out over a million in legal fees.
This is something I never knew... So is there any good phrase I can put in my TOS that will 'kind of' protect me from copyright issues, or is it practically impossible to protect my site from copyright issues?
Copyright infringement is illegal and there is no wording that makes you immune from a possible lawsuit. What you should do is have an easy way to report infringement and respond immediately to any DMCA filings. I would make it clear that only copyright holders can upload content, however, the fact is that the copyright holders aren't likely to ever submit something so you can assume that almost everything someone uploads is potentially infringing upon someone else's copyright. Again, I would wait until I had the money to consult with an attorney because if you do get sued, your legal fees will be huge compared to what it will cost to have something written for your site. I would from a legal entity to put the site into so your personal assets are protected.
But you just told me that there is no way for me to be protected so what is the point of talking with an attorney? I took your advice about making it easy for people to contact me about copyright infringement.
I said there is no way to be absolutely immune from a lawsuit for infringement - which is different than saying there isn't a safer way to go about it. It's clear you don't want to do it the right way (if it costs you money), so I suggest you go ahead and throw something up and forget about it.
If there are any lawyers here, could someone give me a generic phrase which protects my rights if someone posts content to my site which they do not own themselves? Thank you.
You may be able to "protect your rights" against the party who posts the material by putting an appropriate provision in your Terms of Service. It could be as simple as: You will not post content or take any action on this site that infringes or violates someone else's rights or otherwise violates the law. However, that does not mean you have the right to publish content in violation of someone else's rights or other violates the law. If you do that, you are still responsible for the content. It just means that you have the right to go after the person who violated your terms and conditions. Keep in mind, that going after the person who violated your terms and conditions is often impractical if not impossible: 1. Most website owners don't know the identity of their users. At most, they require a valid email address. Knowing that a user has an email account at hotmail, yahoo or gmail isn't much to go on. You may have the user's IP address, but that is often difficult to trace, and if the user is accessing your site through a public computer, such as from his school library, knowing the IP address may put you no closer to the offender than the email address. 2. Even if you know or are able to learn the user's real name and address, you may not be able to get jurisdiction over the person , despite language to the contrary in your terms and conditions. 3. Even if you have jurisdiction, you may find that the person was a minor or had some other legal incapacity that makes your contract unenforceable. 4. Even if you can get over hurdles 1, 2 and 3, the amount of your potential legal damages may not be worth your time and effort. In addition, in the U.S., unless a contract clearly specifies that a damaged party can also collect its legal expenses, the winner must pay all of his own legal costs out of his damage award. 5. If you can get over hurdles 1, 2 and 3 AND your damages are sufficient to justify bringing a legal action, and you win (which is never a certainty), you still need to COLLECT the damages. How many of your users are really financially capable of paying any substantial damages? My guess is that it is a very small percentage. In short, you should certainly have appropriate language in your terms and conditions, but don't count on it to protect you from anyone.
Wow! Considering what you just told me it seems like accepting user content is a dangerous action to take. I'm suprised that there are so many sites out there that do this. Thanks for the advice.
It's a calculated business risk, but you have to understand that there is a risk. Dealing with violations promptly will help. If your site infringes someone's copyright or violates an individual's privacy rights due to a posting made by a user, in most cases the person will be satisfied if you simply remove the material from your site. There are some aggressive companies that may seek royalty payments or statutory damages, but they are relatively rare and probably have bigger problems than your site.