Ask HN: Is legal language copyrighted?

https://news.ycombinator.com/item?id=1125840

by jrwoodruff • 16 years ago

20 8 16 years ago

news.ycombinator.com

Long story short: I need legal language regarding submissions to a site I will soon have in beta-testing. I would like some legal language in place regarding indemnification, privacy and use of information; is there anything to stop me from grabbing said language from Digg or Reddit and adapting it for my own use? What are the dangers here, and do legal contracts fall under copyright laws in the U.S.?

I would love to find a trustworthy site with information on this question, and yes, I will be hiring a lawyer for this information, eventually.

rksprst• 16 years ago

Not sure about the legal implications but there are a couple sites that have their terms of use / privacy policy under creative commons. Wordpress has their ToS under CC share alike: http://en.wordpress.com/tos/

grellas• 16 years ago

17 USC section 102(a): "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression . . ."

This section includes a list of eight "works of authorship" (literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion picture and other audiovisual works, sound recordings, and architectural works), but that list is not intended to be all-inclusive. In addition, the categories are broadly construed, as for example to sweep computer programs and compilations into the definition of "literary works."

Thus, there is nothing preventing legal language from being copyrightable as long as it constitutes an "original work of authorship." And, if you go to any site that offers legal forms for download, you will find the vendor claiming copyright in the contracts being offered, thus presumably precluding others from taking the same contracts and re-selling them.

That said, the kinds of legal language and contracts you are talking about are almost never made the subject of copyright, I think, simply because they are usually not "original." Most clauses for indemnification, etc. are recycled over and over. Lawyers themselves will often lift them for re-use.

You are right to be concerned about the potential risks in this area but, in practice, I have never heard of any large website complaining of copyright violations from use of legal language similar to theirs and I think the practical risk of borrowing their language is low. For much of the standard stuff involved, I would think it would be nearly impossible for them to prove that the language used is "original" as required for it to be copyrightable.

Moreover, to sue for federal copyright infringement in the U.S., the copyrighted material needs to be formally registered with the copyright office. I would seriously doubt that any large website bothers with this formal requirement over a matter about which they normally could care less (other than making sure it protects their own legal position as used on their site).

I don't know of any definitive place to find a discussion on this but I believe this gives you a pretty good overview of how this area generally works. You can and should check with your attorney about details for your specific situation.

alain94040• 16 years ago

The GPL for instance is copyrighted. You'd think they are a group that wouldn't assert copyright needlessly.

You can find some "public" terms of service and other boilerplate stuff for your web site by digging a little bit. Just don't copy verbatim without understanding what you are doing.

munishdayal• 16 years ago

I agree with grellas that while Digg or Reddit (really their legal counsel) could technically claim a copyright in the legal written work that you are adapting for your own use, realistically suing you for copyright infringement on their terms of use and privacy policies wouldn't be worth their time, and you could potentially assert a successful defense of fair use. I don't know the specifics of your business so I can't give you specifically tailored indemnity, privacy and use of information clauses for free (yet!) but that type of work is not hard for a lawyer, really shouldn't cost you very much and shouldn't take long (a couple hours). The much bigger issue in my opinion (and why copying Digg, etc long term isn't a good idea) is whether adapting their policies will adequately protect your rights and liabilities and those of your business well, especially those idiosyncratic to your business. If you just need boilerplate for the time being you can avoid this whole issue by using privacy policy and terms of use generators; I found a few here:

http://www.bennadel.com/coldfusion/privacy-policy-generator....

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

redsymbol• 16 years ago

I'm not a lawyer. You should talk with one before doing anything.

That said: I asked this question directly to my attorney a couple months ago, as she was reviewing a contract I had cobbled together from similar specimens I found on the web. She said that no, legal language found in contracts is not at all copyrightable in the USA. I've informally gotten the same response from a couple of other attorney friends over beers.

The funny thing is, from what I've been able to find about copyright law - again, as an entrepreneur and as an open-source/free software programmer, not an attorney - there is no explicit exception I know of for contract language. My guess is that common legal practice has evolved so that the courts won't enforce it, and attorneys won't pursue it, for a basic reason: it would be overwhelmingly stupid to do otherwise.

Contract language is normally intended to be precise, clear and unambiguous. If every contract had to be tweaked because some propane-tank business in Montana or something just happened to use the same wording before you did... well, that would be a minefield that makes the software patent mess look like a tranquil field of daisies in comparison.

netcan• 16 years ago

What would be a curious minefield is if contracts were patentable. Say some company comes with with a novel and profitable way of structuring a financing contract (or a way of packaging financing contracts for resale) and gets to keep it under patent as a piece of competitive advantage to encourage innovation.

bmr• 16 years ago

As mentioned, legal language is (supposed to be) clear and concise. You'd have a strong argument that the merger doctrine should apply.

The merger doctrine holds that when there is only one way to say something (or a limited number of ways), then it cannot be copyrighted. One common example from the case law is game instructions.

Just as there's really only one way to say "The player who rolls the highest amount goes first", there's really only one way to say "Florida law governs any dispute".

Certainly run it by a lawyer willing to make the advice official. Good luck.

matthewmarkus• 16 years ago

This is an interesting question. It looks like one could claim a copyright in contracts in theory, but there are several practical problems to making a contract copyrightable. Personally, I always thought that copyrighting contracts might make them unenforceable since copyrights could limit a public court's ability to interpret and publish rulings on protected contracts.

Here are the best resources that I found on this matter:

Re: copyright notice on contract http://www3.wcl.american.edu/cni/9908/23029.html

Ask HN: Is legal language copyrighted?

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