Can’t I Just Copy Someone Else’s Terms of Service?

I’ve had clients and entrepreneur acquaintances who have confided in me or told me when I have asked where they got their website’s or app’s terms of service and privacy policy tell me that they copied the ToS and Privacy Policy from a competitor’s site or app, or I’ve had people ask me if they can simply just copy terms and privacy policies from another site. The answer to that question is no. There are a couple of reasons why — the first is that it is a violation of copyright, unless the site or app consents to others copying their terms and privacy policy. As I’ve discussed many times before, copyright attaches the moment a work is fixed in a tangible medium (which includes in a computer file), so all terms of service and privacy policy statements are copyrighted. Realistically speaking, nothing bad is likely to come if you copy another site or app’s terms of service or privacy policy. It’s not worth the time and expense of pursuing a legal claim, not to mention that there is enough boilerplate floating around that can make prosecuting a copyright claim difficult. However, you still never want to intentionally open your startup to liability. But there is another, more practical reason why you shouldn’t simply copy another site or app’s terms of service or privacy policy — every site or app, even if they offer the same general product or service, operates different from every other site or app. It makes more sense to construct terms of service and privacy policies from scratch to explain the specific functions and policies of your site, rather than trying to modify another site’s terms and policies to fit how your site functions. Doing it that way, you’ll end up describing functions and policies that aren’t a part of your site, or forget to include functions and policies that are. I would imagine many website and app developers who copy another site or app’s terms and policies do so because they don’t feel that they’re knowledgeable and experienced enough to draft a custom set for their own site or app. When that is the case, perhaps it is better to hire an attorney with knowledge and experience in drafting terms of service and privacy policies. If I’m going to renovate my kitchen, I don’t know much about home renovations, so I’m going to hire a contractor who does know about kitchen renovations. It may seem a poor use of financial resources to pay an attorney to draft something as seemingly trivial as terms of service and privacy policies. However, your terms and privacy policy may constitute an agreement between your company and your users, so it makes a little more sense to hire legal help. And in any event, if you do not feel comfortable or knowledgeable enough to complete a task in building your company, why not hire someone who is?

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