Almost all commercial Web sites contain some type of legal terminology to notify the end user of the terms and conditions that apply to the use of the site, including legal disclaimers and copyright notices. Most sites today include hypertext links to their legal disclaimers, and this model of posting the terms of use is known as a "Web-wrap" license, based on the "shrink-wrap" license concept used for software distribution.
Shrink-wrap licenses have been held as legally enforceable, even though the end user does not sign a written contract, so it has become common practice to use these licenses on Web sites as well. The most recent case on this subject, ProCD v. Zeidenberg, involved a CD-ROM shrink-wrap license that prohibited an end user from repurposing the telephone-number data that was included on the CD-ROM. The end user ignored the shrink-wrap terms, and posted the data on the Web. The licensor sued, and the license terms were upheld, even though the telephone number data was in the public domain, and could have been freely used by the end user if he had not acquired his copy of the data from that particular CD-ROM. This reflects that a Web site may be able to protect its copyrights and other intellectual property using a Web-wrap license, and possibly also to impose additional terms relating to use and repurposing of data derived from the site.
Following is an example of some initial Web-wrap terms:
Notice to all users: Carefully read the following legal agreement before using this Web site. By clicking the acceptance button or using this Web site, you signify your assent to these terms of use. If you do not agree to these terms of use, please disconnect from and do not use this Web site.
Some Web sites go a step further, and require the user to register online in order to have access to premium content:
If you accept this agreement, you are also required to register yourself as an authorized user of the Web site by completing the online user registration form [link].
Often, registration terms require detailed information about the registrant, and allow for the possibility of future charges for subscription to the content.
Web-site terms and conditions include a list of restrictions on the permitted use of the site:
Neither the Web site nor any element thereof, including without limitation, text, graphics, images, or other materials, may be copied, repurposed, uploaded, posted, transmitted, or redistributed, except that you may download one copy of such materials to your individual computer for your personal, non-commercial use only (which also excludes any use by any governmental, educational, charitable, or other institutional use that is not strictly a personal use by you), provided that all copyright and other proprietary notices appearing on such materials must be preserved without alteration, modification, or obfuscation. With respect to any software downloaded by you from the Web site, such software, and all elements thereof, are licensed to you by the XYZ Company for your personal use only. You may not modify or prepare derivative works based upon the Web site, or any element thereof, and you may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise attempt to access the source code to any software downloaded from the Web site.
A comprehensive statement of the ownership rights to the site is generally included in a "reservation of rights" clause.
All right, title, and interest in and to this Web site is owned by the XYZ Company. The Web site is protected by United States copyright law and international treaty provisions, including without limitation the Berne Convention. All trademarks, service marks, and trade names are proprietary to the XYZ Company. All rights not expressly licensed hereunder are reserved by the XYZ Company.
Following the shrink-wrap model, most Web sites include a warranty disclaimer in their standard terms and conditions:
The Web site and all elements thereof are provided on an "as is" basis without warranty of any kind, express or implied. The XYZ Company disclaims all warranties, express or implied, including without limitation, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. The XYZ Company does not warrant that the Web site will operate or perform in a manner that is uninterrupted or error-free, or that the Web site or host server will be maintained free of viruses or other harmful code. The XYZ Company makes no warranties that the information presented on the Web site is current, up-to-date, or accurate. Some states and jurisdictions do not allow limitations on implied warranties, so the above limitation may not apply to you. The foregoing shall be enforceable to the maximum extent permitted by applicable law.
Most Web sites will also contain a limitation on liability, in which the Web-site operator disclaims liability to the end user for providing the site. Both the warranty disclaimer and the limitation of liability should be presented in capital letters, because it is more likely that they will be enforceable if they are conspicuous to the end user. This also follows the shrink-wrap model, in which vendor liability has always been limited in connection with the licensing of software:
Under no circumstances and regardless of legal theory, whether in tort, contract or otherwise, will the XYZ Company be liable to you or any other party for an indirect, special, incidental, reliance, or consequential damages, however caused, and regardless of character, including without limitation, any damages relating to lost data, computer failure or malfunctioning, or otherwise. Some states and jurisdictions do not allow the limitation of liability for consequential or indirect damages, so the foregoing limitation may not apply to you.The foregoing shall be enforceable to the maximum extent permitted by applicable law. You agree to this allocation of risk in relation to your use of the Web site.
Because the Web site may be available on a worldwide basis, many sites contain a clause relating to this issue:
This Web site is presented by the XYZ Company from within the United States, and company makes no representation that materials in the Web site are appropriate or available for use in locations outside the United States. Neither the Web site, nor any underlying information or technology may be downloaded or otherwise exported or reexported into, or to a national or resident of, any country to which the United States has embargoed goods (for example, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria) or to anyone on the U.S. Treasury Department's list of Specially Designated Nations or the U.S. Commerce Department's Table of Denial Orders. By downloading or using any element of the Web site, you are agreeing to the foregoing and you are certifying that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, you are responsible for complying with any and all local laws in your jurisdiction which may impact your right to use the Web site.
Finally, license term and termination language, as well as miscellaneous boilerplate terms are also included to create a complete license agreement. In addition to legal disclaimers, the Web site should bear appropriate copyright notices. Although failure to include a copyright notice in a work created and published today will not result in forfeiture or invalidation of the copyright, as was once the case, there are still significant benefits to using copyright notices. The notice serves to alert others that copyright protection is claimed. This may discourage unlawful copying, and precludes infringers from claiming that they were "innocent" infringers. In addition, the notice entitles owners to recover statutory damages and attorneys' fees from infringers in accordance with other provisions of the copyright laws. The copyright notice must contain three elements:
- Copyright Symbol. The symbol (the preferred choice because of international copyright treaties), or the word "Copyright," or the abbreviation "Copr." Variants on the symbol are accepted only where it resembles the c closely enough to indicate clearly that the copyright symbol is meant. An acceptable variant is (c), which should be used if the symbol cannot be used. According to the United States Copyright Office, unacceptable variants include: C and [c], among others; thus it is not advisable to depart from the approved variants.
- Year of First Publication. The year the work was first published (which typically is the year copies were first made, sold, and/or distributed, and which is not necessarily either the current year or the year the work was created). It is acceptable for a notice to contain, in addition to the year date of first publication of the current version, earlier year dates indicating the presence of previously published matter in the work. A year date will be acceptable in Arabic numerals or Roman numerals. The year date may only be omitted in limited circumstances not relevant to Web sites, such as in toys and dolls.
- Copyright Owner's Name. The copyright owner's name (or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner). The main issue is whether the name that appears is reasonably sufficient to identify the owner of the copyright. If not the original author, the copyright claimant will have acquired all rights under the copyright originally belonging to the author.
In order to comply with foreign copyright treaties, the phrase "all rights reserved" should also be used. This is not part of the copyright notice itself, but is acceptable if in juxtaposition to the proper notice. As an example, a proper form of copyright notice would state:
1998 XYZ Company, Inc. All Rights Reserved.
Once the proper form of copyright notice is determined, the notice should be placed in a manner that gives end users reasonable warning of the copyright claim. For maximum protection, it is advisable to place the copyright notice on the home page, as well as throughout the site, such that end users entering different pages of the site will be made aware of the copyright claim.
With respect to computer programs that may be downloaded from the site, there are a number of locations for the copyright notice that have been approved by the United States Copyright Office:
- Include the notice in machine-readable form so that it appears on visually perceptible printouts either with or near the title or at the end of the work.
- Display the notice at the user's terminal upon sign-on.
- Legibly place the notice in a durable manner on a gummed or other label securely attached to the copies, or to a container for the software (this option applies to copies distributed in tangible media, and is not applicable to digital delivery of copies).
- Have the notice appear continuously on the terminal display.
It is also customary and advisable to include copyright-notice information in the "About Box" for the computer program. This information generally includes the copyright notice for the entire program, any copyright-notice information for portions of the program licensed by third parties, and a warning statement regarding unauthorized copying. A sample warning might read: "This computer program is protected by United States copyright law and international copyright treaties. Unauthorized reproduction or distribution of this computer program may result in civil and criminal penalties, and will be prosecuted to the maximum extent of the law."
Conclusion
The foregoing is an overview of sample legal disclaimers and notices that are used in protecting copyrights on a Web site. In addition, appropriate trademark notices should be used at all times, and the legal disclaimers should be part of comprehensive terms of use for the Web site that are consistent with the business model being pursued.
Catherine is a cyberspace attorney with the law firm of Wilson Sonsini Goodrich & Rosati in Palo Alto, CA, and is solely responsible for the content of this column, which is not offered as legal advice. She can be reached at [email protected].
