This FAQ is intended to shed some light on issue surrounding website Terms Of Service/Use, Privacy Policy and DMCA Safe Harbor Notice and Takedown provisions.
What is a website’s Terms of Service?
Terms of Service (commonly abbreviated as ToS or TOS) are rules that must be agreed to by users of a website in order to use the site or the services on the site. You usually find a link to the website’s Terms of Service at the bottom of the homepage. Here are a few examples of standard website Terms of Service:
Are Terms of Use and Terms of Service the same thing?
Simply put, Yes. They are synonymous with one another. The Terms of Service might also be referred to as a Disclaimer (of Liability).
Do I have to sign anything to be legally bound by a website’s Terms of Service?
No, there is no requirement that a user “sign” the website’s Terms of Service. In some instances there may be a click though requirement, but it’s rare.
The onus is on the user to find and abide by the Terms of Service. So, if you’re visiting a website you might want to look for the link to the site’s ToS. In fact, unless the ToS somehow violates a law (i.e. consumer protection laws) the user will be legally bound to its terms even if the user never saw or read the ToS.
Usually, a user’s only recourse if they don’t want to abide by a site’s ToS is to stop using the site. It’s not a negotiable agreement.
If I own and operate a website as part of my business, do I have to have Terms of Service?
Generally, it’s not a legal requirement. However, in most instances it makes whole lot of sense to incorporate even a basic ToS into your website.
If you operate a website that involves the sale of goods, like eBay or Amazon.com, you should consider a more complex ToS that covers issues related to e-commerce and marketing policies.
If your site incorporates a forum or other pace where users can leave comments your ToS will likely include terms that govern acceptable behavior and language, and what happens if a user posts copyright protected material (see, below).
What if I develop iPhone or Android Apps, do I need a Terms of Service?
Again, Apple and the Android Marketplace don’t generally require a Terms of Service. However, as with websites, it makes sense for a developer to include a ToS specific to the type of App.
The industry is ever-changing and recently both Apple and Android have discussed making the Privacy Policy mandatory. As we discuss below, the Privacy Policy and ToS work hand-in-hand to protect the Online Service Provider (OSP) or website owner.
I recently bought a video game and had to agree to an End User License and Terms of Service, please explain.
Many video games utilize online services as part of the game-play experience. These types of games, called massively multiplayer online role-playing game (MMORPG), involve almost all of the issues that a good ToS was meant to cover including protecting the OSP and to preventing a player from disrupting another player's game experience. The ToS for an MMORPG might also cover use of in-game currency and trading.
Along with the ToS covering the terms under which a player can operate within the game, there is also an End User License Agreement (EULA) that covers use of the actual software needed to play the game. The EULA usually covers issues related to copyright of the game software, and how the software can be used.
What happens if I violate a website’s Terms of Service?
First and foremost, a user can be barred from using the service/website – aka kicked-off the site. If the violator is a registered user, his or her account might be frozen or deactivated.
In some instances, a user’s actions might be criminal (e.g. violation of an online privacy law or cyber theft law).
Finally, a user might be subject to a claim of breach of contract. A famous ToS breach of contract case occurred last year, Sony vs Hotz, et al. In that case Sony claimed several users breached the ToS with the Playstation Network when they hacked the network. Sony filed an actual claim for damages in civil court against Hotz and several others.
What’s the difference between the website’s Terms of Service and its Privacy Policy?
Where the ToS governs the use of the website or service, the Privacy Policy is a statement that tells the users all of the ways the OSP gathers, uses, discloses and manages a user’s data. Personal information is anything used to identify an individual including name, address, date of birth, marital status, contact information, financial records, credit information, medical history, where you travel, and intentions to acquire goods and services.
The ToS and Privacy Policy work hand-in-hand (and links to both documents are usually located next to one another on a website’s homepage) to set expectations for both the OSP and user.
There are a number of different laws and regulations that govern the collection and use of information gathered from users. An OSP must take into consideration jurisdictional concerns when deciding what information to collect from users, as the laws from state-to-state and country-to-country may vary widely.
What if my website caters to children, and I collect information from them?
The Children's Online Privacy Protection Act (COPPA) affects websites that knowingly collect information about or target at children under the age of 13. Any such websites must post a Privacy Policy and adhere to strict information-sharing restrictions.
It is highly advisable to consult with an attorney knowledgeable in online privacy issues before operating a web based service that collects information from child users.
Do I have to have a Privacy Policy on my website?
Not necessarily, but like having a ToS it’s a probably a good idea to consider using s Privacy Policy.
That having been said, some states have implemented regulations for privacy policies. In California for instance, The California Online Privacy Protection Act of 2003 requires "any commercial websites or online services that collect personal information on California residents to conspicuously post a privacy policy on the site".
The Terms of Service on my website prohibit users of the site from posting content that doesn’t belong to them. This means I can’t be sued for copyright infringement, right?
Wrong. However, an OSP can take advantage of “Safe Harbor” against liability by following some fairly simple rules.
The Online Copyright Infringement Liability Limitation Act (OCILLA), part of the Digital Millennium Copyright Act (DMCA), is a federal law that creates a conditional safe harbor for OSPs and other Internet intermediaries by shielding them for their own acts of direct copyright infringement (when they make unauthorized copies) as well as shielding them from potential secondary liability for the infringing acts of others.
In order to take advantage of this safe harbor the OSP must follow certain rules set forth in OCILLA.
For context, websites like YouTube could not exist if not for OSCILLA’s most common safe harbor found in § 512(c). Much of the content posted on YouTube is done so without the permission of the copyright holder, but by complying with OSCILLA YouTube is able to avoid liability for hosting the infringing content.
If simply prohibiting users of my site from posting infringing content doesn’t protect me, what can I do to avoid liability for copyright infringement?
First, the OSP must “adopt and reasonably implement a policy” of addressing and terminating accounts of users who are found to be “repeat infringers.” Second, the OSP must accommodate and not interfere with “standard technical measures.” An OSP who complies with the requirements for safe harbor is not liable for money damages, but may still be ordered by a court to perform specific actions such as disabling access to infringing material.
In addition to the two general requirements listed above, § 512(c) also requires that the OSP: 1. not receive a financial benefit directly attributable to the infringing activity, 2. not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3. upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.
The scope of first two additional requirements is beyond this FAQ, however with regard to the third requirement a copyright holder will give the OSP written notification (which includes specific information) of claimed infringement which will then prompt the OSP to remove the infringing content.
It’s important to note that in order to “reasonably implement a policy” regarding how to contact the OSP, the policy must be easy to find on the website. Thus, this notice and takedown policy is often found as part of the ToS, of course.
I posted a video on YouTube. Today I received a notice that the video violated the site’s copyright policy and was going to be taken down unless I submit a counter-notice. What does all of that mean?
If an OSP receives notice from the copyright owner that content posted on the website is not authorized, the OSP, as part of OSCILLA, is required to notify the user who posted the content and offer them a chance to file a counter-notice.
If the user files a counter-notice, claiming they do have the right to post the content on the website, the OSP will restore the content to the website, unless and until the party that is claiming infringement files a complaint in federal court. If there is no counter-notice filed, then the content is taken down and removed from the website.
Sounds confusing, but it’s really quite simple.
What is a designated copyright agent?
OCILLA requires OSPs seeking to utilize the safe harbor provisions to designate an agent to which notices of copyright infringement will be sent. This agent registers with the US Copyright Office, and will be listed on the notice and takedown policy (usually in the ToS) and on the Copyright Office website.
Still Have Questions?
Protecting an online business with a solid ToS, Privacy Policy and Notice and Takedown provision has become an increasingly important part of operating a website or online service. We here at ARC Law Group can help assist you if you have questions about use of these online protection tools, and can even serve as your designated copyright agent. You can contact us at info@arclg.com.
Mark A. Pearson is a founding partner at ARC Law Group. He's helped license music, film, and technology rights on behalf of his clients. Mark can be reached at mark@arclg.com.
You understand and agree that use of this blog does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided on this blog is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.
I also believes the same that Terms of Use and Terms of Service both are the same thing..And so Terms of Service can also be referred to as Terms of Use or sometimes merely a Disclaimer,especially regarding the use of websites.
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Posted by: Chanel Wallets | 05/21/2012 at 07:39 PM
An OSP must take into consideration jurisdictional concerns when deciding what information to collect from users, as the laws from state-to-state and country-to-country may vary widely.
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Posted by: mightystudents | 02/10/2013 at 04:51 PM