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I want to copy a Terms & Conditions agreement from a competitors site & swap out their name for mine. A few entrepreneurs I know have also done it but I wanted to make sure there aren't any implications. If you can take a template from Scribd.com or legalstoc.com I assume you can also copy one from another site?

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9 Answers

up vote 16 down vote

This issue comes up from time to time and attracts a great deal of misunderstanding (some of which is expressed in answers / comments already provided).

I will make some basic points and cite blog posts that discuss those points in detail:

  1. The legal term for the issue you are raising is copyright infringement. Please see Copyright Protection in One Easy Lesson and Copyright Registration: Whether, When and Why.

  2. Whether the copyright "fair use" defense is available in any given instance is highly fact-dependent and depends on an assessment of four factors. Please see The “Fair Use” Defense: One Term, Two Different Meanings.

  3. I know of one reported case that directly addresses your issue. The holding: Copying of non-boilerplate provisions constituted copyright infringement. Please see Can I Create my Standard-form Contract by Starting with Someone Else’s?

Disclaimer: This post does not constitute legal advice and does not establish an attorney-client relationship.

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+1 for the excellent references. I guess the test is whether or not the terms and conditions are boiler plate or not. It does seem a bit confusing since all of the legal contracts I tend to review have this huge list of basically the same exact words. Some even have specific phrases that are required to be exactly as worded due to some act of congress. – Jarie Bolander Feb 16 '10 at 1:19
Just a friendly comment: When you originally wrote this, your post was at the bottom of a long list. As your excellent answer was upvoted it changed position. Now your first line reads "misunderstand [...] above", which seems to refer to my post specifically. "Above" and "below" aren't the best words to use in the Stack Overflow voting system. :-) – Jesper Mortensen♦ Sep 22 '10 at 20:38
@Jesper Mortensen: Thanks - always something new to learn. I deleted "above" and will try to remember not to use it in the future. – Dana Shultz Sep 23 '10 at 22:52
up vote 18 down vote

Just to clarify in case there is any doubt: Yes, outright copying a legal document is illegal. And wrong.

You will almost certainly not get sued and all that. But that is besides the point. If you make your living from software, then you make your living from rights granted to you by copyright and intellectual property laws. So do respect other peoples copyright as you would want your own respected.

Having said that, there are plenty of good templates to work from which are licensed to you free of charge or for cheap. There are already helpful answers with sources of freely licensed templates in this discussion. I would like to additionally mention Automattic's Terms of Service for Wordpress.com. This ToS is in plain, understandable English, and it is pretty comprehensive. Creative Commons has a overview of the license under which you can modify and reuse Automattic's document here.

Edit: Yasmine, you could open a new question, more to the effect of "My new site does X , Y and Z in the market for Q, what should I think of with regards to Terms of Service etc". Without specifics of your business we can't really guide you, and the guidance you can get for free on this site can go a long way towards keeping your legal bills down.

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+1, Good point that standard documents can be had legally. The issue appears with a more vertical-specific agreement like software EULAs rather than e.g. privacy policies. – Jason Feb 15 '10 at 21:49
up vote 0 down vote

Doug G - that is one of the most ridiculous statements to make. Most success is attributed to good decisions, knowledge, hard work, network, timing, and luck. If you can add competitive advantage to the mix you may have a sustainable business model.

Regarding getting sued for finding and using T&C is not likely. However, do not use a direct competitor and do not use verbatim. Change it up a bit. You can follow suggestions to use templates and samples. Or you can see what other non-competitor companies are using and build from that.

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Apparently this line of thinking originates from T. S. Eliot: "Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different." – Steve Wilkinson Feb 17 '10 at 8:37
up vote 2 down vote

I heard about this TOS generator service in a podcast. I haven't tried it out but it looks promising:

http://terms-of-service-generator.legalriver.com/

They also have a privacy policy generator.

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up vote -1 down vote

"Behind every success there is a crime".
Consider this the first step towards success.

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up vote 1 down vote

Any lawyer will advise you against doing such a thing because of the reasons Jason listed. It is technically infringing on their copyrighted material.

What normally happens is people "borrow" the terms they like from various T&C's and reword them for their own use. I would advise against outright copying since that does violate copyright laws.

Most of the standard T&C's are so generic that you can go to a place like http://www.nolo.com and buy a boiler plate one. That way at least you have a solid base to build on.

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Outright copying violates copyright, even with a link back to the original. You're only allowed "fair use", which covers something like a newspaper quoting a few lines from a competing newspaper, for the purpose of public debate. Here is one description of "fair use": wiki.creativecommons.org/…. – Jesper Mortensen♦ Feb 15 '10 at 20:57
As long as you reference the source and quote the text, you can use it. You are correct that the amount of use could get you in trouble, even in terms of fair use. For example, if you quoted an entire T&C contract, then that would probably be a problem. I am glad you provided the link. It's a good reference. – Jarie Bolander Feb 15 '10 at 21:27
If you're being strict on copyright, you can't quote more than a few sentences. Bloggers tend to stretch this, and because the authors typically benefit from the exposure and for others it's not worth the lawyer fees, it's not enforced. But it's illegal, and certainly for large chunks of a -- legal! -- document it's illegal. – Jason Feb 15 '10 at 21:49
Agreed that the strict interpretation would disallow you from just quoting the terms. Answer edited and incorrect/misleading statement removed. – Jarie Bolander Feb 15 '10 at 23:49
up vote 2 down vote

If so, I think a lot of lawyers would be in jail! ;-) I think we've all seen boilerplate agreements reused from who knows what source.

Of course, you should understand what terms & conditions you are signing up for from the copied document - and if you have council, having them review a complete document (vs. writing up one from scratch) is a more cost effective route.

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@jimg: The larger legal offices create the boilerplate templates in-house. When you think of the mindset in that business, some of their competitors would love to get them on a copyright infringement. – Jesper Mortensen♦ Feb 15 '10 at 20:32
up vote 5 down vote

Yasmine, you -probably- won't get sued, but it leaves you open to your competitor pointing out that you copied a part of their site. Why load a gun and hand it to your competitor?

Instead, either buy one from legalzoom or check out Gene Landy's IT/Digital Legal Companion and use a better T&C.

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Good point -- how about this, copy from a non-competitor, in fact someone not even in your industry with no possible reason to sue. Competitors always have a reason to sue so you usually want to be extra-careful around them. – Jason Feb 15 '10 at 21:47
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@Jason: I still think that copying is wrong, but now to something else: If you copy from someone in a non-related industry, you risk missing important industry-specific issues. For example social networks might want to address copyright, libel, hate-speech etc of user-generated content; you might miss this if you get terms from a non-user-generated-content site. – Jesper Mortensen♦ Feb 16 '10 at 14:41
up vote 7 down vote

Great question.

I think we've all done that before. It's hard to ask a lawyer whether it's legal because lawyers want you to pay them to make those documents.

Typically lawyers tell you that copying is a mistake because you might have different specific scenarios you need to cover. And yes, copyright is copyright, and in the US copyright holds even if you don't write something like "Copyright 1999" on it.

At the same time I've never heard of someone getting sued over that kind of duplication.

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