If you spend any time reading the legal press (or even the mainstream press) you might come away thinking that the primary function of the Internet today is to breed intellectual property litigation. It is certainly true that websites that rely on user-generated content create unique intellectual property issues, but the vast majority of these disputes never make it to the courtroom: They are settled by a Digital Millennium Copyright Act (DMCA) takedown notice or other formal or informal process between the rights-holder and the service provider.
The more complicated cases in this area arise not between websites and third-party rights holders, but between websites and their own users. In those cases there is no simple, statutory fix (such as a takedown procedure) and courts often end up examining the complex “terms of use” that govern the intellectual property and other rights apportioned among the user and the website. But there is a threshold question in those cases: When should a user be bound by those terms of use in the first place?
Importance of “Terms of Use”
