Can I use Facebook’s TOS & Privacy Policy for my website?

by Antone Johnson at Bottom Line Law Group

QUESTION:

I’m creating a social networking site.  Is it legal for me to basically copy off Facebook’s terms of service and privacy policies and just amend them for particulars of my own site?  Or can Facebook file some sort of complaint against me for that?

ANTONE’S ANSWER:

I can’t advise you (or anyone) to go ahead and copy another site’s content of any kind verbatim, which includes its Terms of Service and Privacy Policy, without the company’s permission. That said, legal documents are regularly used as sources and templates (even within the legal community), and lawyers often mix and match good language they (we) find in various places to create new documents that are custom-tailored to the client’s needs. It’s debatable where exactly fair use ends and copyright infringement begins; copying an entire work verbatim would likely be deemed infringement (unless perhaps used for academic study or the like), whereas copying a sentence or paragraph would not be. In practice, I’ve never heard of any site being sued for copying another site’s TOS or Privacy Policy. In theory, it’s possible.

The broader point that Naomi made below is a good one. TOS and privacy policies are not boilerplate; although they have many similarities, it’s important to draft them to reflect the specific features, functionality, privacy practices and risks associated with your business. After all, these form the contract between your company and each of its thousands or millions of users, so every opportunity should be taken to make them as favorable as possible. A qualified Internet lawyer who does this for many clients can generally prepare these documents in only a couple hours’ time after interviewing the client and getting a solid understanding of the site.

by Naomi Kokubo

I wouldn’t be surprised if this sort of thing happens all the time, but there are risks in involved. Much of what Facebook is doing may not apply to your particular situation. I doubt your site is a carbon copy of Facebook, and you need to make sure your TOS/Privacy Policy match your business.

Also, I’m not a lawyer, but you should check to see if there is a copyright notice on the document. If there is, then copying it verbatim and publishing it would be copyright infringement.