Editors note: Please welcome Intellectual Property attorney Lauren McClanahan. We are honored to have her as a contributor to our blog.
There’s always a crazy rush around the launch of a new Magento e-commerce website, and/or mobile app. You and your team steadily check off all the boxes on your to-do list, and then your developer asks for your terms and conditions (T&C). You think about this for a nano-second before deciding to swipe some existing T&Cs from the internet. Done. Project complete. High-fives all around.
Your developer shakes his head, resigns himself from the situation and does as you ask. After all, he covered himself from liability in your contract and provided you with resources warning you away from this action.
Pop quiz time:
- T/F: No one ever reads the terms and conditions.
- T/F: If the terms and conditions are good enough for [insert name of large corporation], then they’re good enough for me.
- T/F: I can change the terms and conditions later and not be liable for the temporary version.
If this intro was not already incredibly direct about the author’s feelings on copy/pasting T&Cs, the answer key to the above quiz is: False. False. False.
Like many things in life, you get what you pay for (or don’t pay for). And I’ve complied a short and sweet list of why copying is A. Very. Bad. Idea.
One — It’s a Binding Contract
Just because there’s no signature and no one actually reads the contents doesn’t mean that regulators won’t hold both parties responsible for the agreement. T&Cs are CONTRACTS. They govern disputes, limit your liability, and dictate how consumers are allowed to use your site. As a business owner, it is YOUR responsibility to know the promises that you are making to your customers. It is not up to your web developer.
At a minimum, your T&Cs should discuss:
- How users are expected to interact with your site, what they are allowed to contribute, and what they are not allowed to do;
- How you will go about amending the T&Cs from time-to-time;
- A statement to the effect that you are not responsible for or encourage illegal behavior on your site;
- Special provisions regarding children’s access and use of your site;
- Ownership of content housed or contributed to the site;
- Which law and legal jurisdiction will be used to resolve disputes; and,
I’ve seen some pretty laughable T&Cs, like the one below that is less than three sentences long and sloppily contains the name of an unrelated company. Don’t be Company X using Lobster Marketing Group’s T&Cs.
Two — It’s Possible to Incur Fines
The agency in the U.S. responsible for catching businesses making false promises to consumers is the Federal Trade Commission (FTC). And if you’re not careful or ignore (or misplace) warning letters, you could be slapped with a fine so hard that your whiplash mimics snap bracelets from the 90s. Whip-CHA!
The risk of copying another’s T&Cs includes taking on the liability for confusing, misleading and deceptive promises. This may occur if the terms you swiped don’t apply to your actual operating activities or goods and services.
Several state agencies also monitor for deceptive or misleading consumer promises, including promises regarding the collection and use of personal information. Breach of these key terms can result in fines, shut downs, or even jail time.
Even if you later update your T&Cs, you can still be held accountable for the promises unintentionally made through the initial versions of your T&Cs. Your liability and responsibly *should* be laid out in those T&Cs.
Three — It’s Possible to Be Sued
When you take someone else’s work without permission and use it for your own purposes, you have likely just committed intellectual property infringement. Companies who take the time and effort to create legally binding and effective content for their apps and websites often scout for infringement, commonly sending cease-and-desist letters demanding take-down and payment. If those letters are ignored or you take content from a litigious company, they’ll take you straight to court where they may be awarded damages ranging from the hundreds to hundred of thousands.
Aside from your own copying and subsequent infringement, you can also be held accountable for the actions and intellectual property theft of those using your website. If you allow others to conduct illegal activity (or turn a blind eye), you could end up in the court room with them.
Common Magento e-commerce infringement includes the swiping of: T&Cs; privacy policies; cool photos; copywriting; and source code.
Don’t take someone’s stuff. It’s not cool, and you could be legally bound to bad promises, fined, or sued.
Your business is unique. Take the time to draft T&Cs and contracts relevant to your operations, products, and services.
Don’t task your developer with your job. He doesn’t want to deal with bad T&Cs.
If you need help, hire an attorney experienced in e-commerce and technology law.
About Lauren McClanahan
Lauren McClanahan is a privacy and branding attorney, equally adept at creative campaigns as well as technology transactions. Lauren leads clients through copyright, privacy, regulatory, and trademark considerations in optimizing successful e-commerce portfolios. She is a leading voice among women practicing in technology law and an IAPP Young Privacy Professional. Her primary practice areas include copyright and trademark law, data privacy, sports and entertainment law, and technology transactions. Lauren serves as a lead for the Knoxville Technology Council’s Women in Tech Committee and is a Board of Director for the Tennessee Women’s Theater Project and the Putnam County Library Foundation.