We are often asked to review web site terms of use.  Here are five provisions that often seem to be missing in action (in no particular order):


No Scraping


iStock_000005643842XSmall.jpgWith automated screen scraping tools readily available, this data harvesting technique presents issues for websites that allow users to search for data.  Even if you aren’t troubled that others may obtain mass access to the data, you may want to prohibit such activity simply to avoid the performance hit it may cause.  Of course, such provisions in your terms of use won’t stop someone who ignores them, but courts in a number of jurisdictions seem willing to enforce them if they are not buried and especially if they must be clicked through.  A recent case from Virginia’s Eastern District provides a nice overview of what works and doesn’t.  Also noteworthy on this front is Google’s recent decision to eliminate its not so long ago introduced “track changes” feature for Google Reader, which used screen scraping to track changes at web sites selected by users.  


No Spamming


It certainly won’t stop SPAM, but adding a provision that explicitly prohibits the use of your domain and mail servers as a destination for unsolicited bulk communications may give you extra ammunition in going after someone who seeks to disrupt your business by clogging your email servers with a stream of junk or flooding your employees with email rants.  If your site includes any built in email forwarding capabilities (for example, send a copy of this to a friend), provisions like this are even more important. 


Missing or Incomplete DMCA Provisions


Does your site include a facility for user contributed content—for example a comments section?  You’ll want to be sure your terms include DMCA procedures.  But you can’t stop there.  You also need to register a designated agent (to receive notifications of claimed infringement) with the Copyright office.  Then, you need to make sure there is a mechanism in place to provide timely response to any such claims.  If you don’t, the DMCA limitations on liability for third party content won’t protect you even if they might otherwise apply.  


Missing or Bad Copyright Notice


The rules for a proper copyright notice are pretty simple, so it is interesting how often one sees this mistake.  Of course, a notice is generally not required to establish a copyright interest in the U.S. (except for older works), but a proper notice can enhance your rights and give you extra ammunition in a battle with someone misusing your site.  A proper notice needs to include the following elements:

  • The symbol © (letter C in a circle); the word “Copyright” or the abbreviation “Copr.”;
  • The year of first publication.  If the work is a derivative work or compilation including previously published material, the date of publication of the compilation or derivative work is sufficient.
  • The name of the copyright owner.

One needs to comply with the registration and deposit requirements as well, but getting the notice right is a critical first step.


U.S. Government Restricted Rights


If your site provides access to downloadable software  that may be of use to  the U.S. government or any of its agencies, you’ll want to consider including a “Restricted Rights” notice.  Failure to do so could expose you to claims of ownership from the government.  Even if your site does not provide access to software, you may want to consider the implications of government access, especially if you are a government contractor or seek to become one.