Drafting Effective Terms for Your Community

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Running a vibrant community that engages your consumers is a hard thing.  Care and feeding are essential to it.  If you stand up a community and do not have staff dedicated to the effort, you are doomed to failure.  The good news is that failure will come quickly.  There are other failures that come slowly, or sometimes don’t come at all.  This is where well drafted Terms are essential.

Let me start this by reiterating my point about proper care and feeding of the community.  If your team isn’t staffed to do this right, don’t bother with terms.  You will not need them.  Your community will fail.  If you think these terms only apply to communities that you setup (company owned website, for example), think again.  Care and feeding go with every place where you make your presence known, Facebook, Twitter, LinkedIn, Quora, Pinterest, etc.  If you go there, be prepared to support it.

 

Why Bother With Terms?

Most legal protections are like auto insurance.  You may never need it.  In fact, you hope you never need it, but you still pay every six months to keep that insurance.  Granted, the state requires you to, but it does protect your investment in your wheels.  Terms and Conditions for your community are just like that.  It provides you protection down the road.

The risks of not having well drafted terms are present, even though they aren’t as apparent as that guy weaving from the left lane to the exit right in front of you.  Are you using any information that your users are going to give you?  You need to tell them.  Are you planning on republishing their content in your marketing materials?  You need to get their permission.  Want to let your users tell you how to improve your products and services?  Proper licensing is required.

The good news is that most of this stuff is pretty easy.  The hard part is making it easy to understand.

 

Personal Information

You should have a robust privacy policy and statement somewhere on your website.  While I think you should make some statement about the information you are collecting within your community, make sure to point the users to your privacy statement so they understand your data collection and sharing practices.  If you want a robust community to build and thriving conversation to flourish, I would also suggest being clear about what you are not going to do with the information there.

 

Copyright Permissions

This community will have user-generated content (UGC).  Even if it is just textual comments and threads, copyright still applies.  Once you start to move into video and photos, your copyright problems become even greater.  Start with a statement that gives your company license to the content.  A statement like “you grant to us a worldwide, nonexclusive, royalty free and sub-licensable license to use, reproduce, prepare derivative works of, display and perform” should give you some breathing room.  If you take their content and use it somewhere that has a greater visibility, I would recommend getting something further in writing.  I am not a fan of click-through agreements where your liability exposure is greater.  Think full page ad in the New York Times.

If you let users submit photos, audio and videos you have an additional problem.  Frankly, you have this problem with text, but it becomes more apparent with these mediums.  What you are worried about is if they recorded someone without their permission.  A statement like, “you represent and warrant that you have all the rights and authority to the content you are submitting and you will provide to the Site Operator, upon such request, such permissions so that the Site Operator may fully enjoy the license that you are providing.”  Again, if you are doing something greater with the content from the community, I would recommend going back to the poster and actually perfecting those permissions.  If you have to go and retake a photograph or reshoot a video, it is a small price to pay to prevent future heartache.

 

Help You, Help Me – Unsolicited Submissions and Feedback

Users love to tell the brands they love how they can be better.  Those same users may known your brand even better than your own employees.  While the large majority of users want you to be better, there are some users who have ulterior motives.  Even if they are giving something to you in good faith, there may be other claims to it and like a good insurance policy, you need to prepare for the worst.  Most companies have a policy of not receiving something unsolicited from a third party.  You need to mirror that in your Community Terms

A statement like, “Site Operator does not accept unsolicited submissions and any such postings to the Community will be deemed non-confidential and non-proprietary and will remain the exclusive property of Site Operator.  Site Operator may use the submission in any manner, for any purpose without compensation.”

 

DMCA-Proofing

Since you are receiving the copyrighted works of someone and will be republishing that for everyone to see, you need to have a statement regarding your DMCA process.  I talked just yesterday about the DMCA, so please go back in time to look at what I said there.

 

General Provisions

This section is mostly fire and forget, but you need to have it.  If you are a lawyer, it is also the most lawyer-sounding part of the terms so it helps justify that billing rate.

    • Governing Law/Jurisdiction/Venue – This tells everyone where you want to fight any disputes.  Quite frankly there are arguments that will gut this provision, but it is a start.
    • Severability – Invariably something you write is going to be found invalid.  If you don’t think so, just read what’s been happening to social media policies.  This allows the rest of the document to possibly survive.
    • Survival – this is where the lawyers will get you.  We talked above about licenses and permissions.  Those sections are typically removed from this provision.  What this provision does is allow you as a site operator to continue using all your stuff basically in perpetuity, if it says so.  When you are reading Community Terms, do not fail to read this section as well.

 

Sample Community Terms

I will work some on putting together a Sample Community Terms and make it available on this website under a Creative Commons License.  Come back regularly to see what I have.  If you have any suggestions or feedback about that or this subject, you can email me at solomolaw@icloud.com, or just leave a comment.

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