SHOULD ENTREPRENEURS COPY THEIR COMPETITORS’ FORMS?

By

Rob Hassett

 

Clients often want to know if it is okay to copy what I call “Internet Related Legal Documents” (or “Internet Documents”), such as Terms of Use and Privacy Policies from unrelated websites.  It may be, but here is what you should consider in deciding whether and what to copy.

Ownership of Copyrights in Forms

Does copying and using a third party’s forms constitute copyright infringement?  It will if  that third party  owns copyrights in the form.  This will help you determine if anyone owns copyrights and the chances of having to deal with a claim.:  

(1)  Most clauses in Internet Documents have been copied and recopied so many times that there is no way to determine  who may be an owner. So if searching with Google or Bing it  turns out that the same  clause appears in many documents of unrelated companies, and not written by the same group of lawyers, it’s unlikely that anyone holds rights in those provisions. It would still be a good idea, as a precautionary measure, to change the wording of the clauses.

(2)  Copyrights can also protect the order in which clauses appear, so  It would be a good idea, if there are not many forms with the same order, to create  your own.    

 (3)  Is there any difference  in risk if you copy a form written in plain English?  Yes, because most plain English documents are drafted without much, if any, copying.   If so, it is more likely that the owner of the website has and may assert copyrights in the form.  

(4)  Also, copying a form is much less likely to be the subject of a claim if there is no copyright notice on the form or the website or if the copyright has not been registered in the U.S. copyright office. —  copyright.gov..  If you are relying on such lack of a notice or registration, you should have an attorney do the search to determine the truth about  the situation.

Other Concerns

 

(5)  It is highly unlikely that your business is exactly the same as another.  Blind copying of forms may therefore not fit your company’s manner of doing business and could be the basis for such claims as fraud, action by the Federal Trade Commission or action by other federal and state agencies.  For example a clause in an agreement for a large company may list a number of security measures that are maintained by the large company but which are way too expensive, and not required for your small company to implement.

(6)  if you are sufficiently successful you may want  to convert your Legal Documents to plain English.  That would, in most cases, require a rewrite by your own attorneys and/or staff, but would be viewed favorably by anyone who understands how the process works.

 

 

 

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About Rob Hassett

Rob Hassett is an attorney in technology, entertainment and corporate law with Hassett Law Group/Business Law Partners in Atlanta, GA. He is a co-author of a leading volume on internet and interactive media law and has taught many classes in the professional education program at Georgia Tech.

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