If you or your business runs a website, it is critical to understand the importance of Terms of Service agreements and the protections afforded by the Digital Millennium Copyright Act, also known as the DMCA. Without these protections you and your company could face significant personal liability for actions taken by other people.
Any business attorney would advise you that you should not conduct business without a contract. When you conduct business on the Internet, whether it be for sales of goods, provision of services, or just information and marketing purposes, that contract takes the form of a Terms of Service (TOS) agreement, which may also be called a Terms of Use agreement or an End-User License Agreement (a EULA). These contracts have been found to be valid and enforceable by courts, especially when the user is required to specifically click to agree to those terms. Just as in any other business contract, the terms of your contract will vary based on the specific business goods or services your website is providing, and as such, it is not a good idea to use a generic TOS or one copied from another website. Because of the significant protections that can be included in these contracts, including limitations on liability, it is critical to have your TOS created for your specific site. An attorney experienced in both business law and internet law is the best choice for such contracts, and the up-front cost for a contract will be small in comparison to the potential litigation and liability costs if you are not properly protected.
If your website allows for the posting of user-generated content such as videos, music, text, or even just product reviews, another important limitation on liability to be aware of is the Safe Harbor provision of the DMCA. If you allow user-generated content and a user uploads content that infringes a third party’s copyrights, that third party can sue not just the actual poster, but also you or your business as the owner of the website. To avoid this liability under copyright law, it is important that you comply with the provisions of the DMCA regarding appointing a DMCA agent and handling proper take-down and put-back notices. Much information on these notices is available online, but because of the critical nature of proper compliance with these laws to avoid personal liability, we strongly recommend that you consult an experienced internet attorney if you allow any user-generated content on your site.
The attorneys at Cannon, Mihill, and Winkles handle all aspects of business law, including internet law and DMCA compliance. If you have questions or concerns about your website or your business, please feel free to contact us for a consultation.