In our design piracy series we recently examined the following text found in the terms of service for various 37signals products:
We've discussed this and the fact that you can not copyright look and feel. Unfortunately today my attention was drawn to one of my favorite new apps, GitHub.
I've used GitHub, and it's great... but today someone pointed me to the following excerpt from the GitHub Terms of Service (emphasis mine):
Seriously, guys? Almost everyone I've spoken with is decidedly against the spin 37signals is trying to put on copyright law... and here we have a well-known [or well on it's way] service with strong OSS ties following in their lead... Is this intentional? Someone please tell me it isn't.
I then decided to Google "look and feel of the service is copyright" and found an alarming 376 results.
Is this a case of simple borrowing from the 37signals Terms of Service word for word, or is there a more generic legal template that ALL these sites are using for their ToS? I spot checked maybe 10 of the search results at random and the "look and feel" clause was exactly the same, word for word.
In fact, the entire terms of service in several cases appear to be mostly the same with the only noticeable difference being the name of the service in question. (probably a lot more than "several", but who wants to read 376 ToS documents...? Not I.)
Anyone have any light to shed on this? I think it's a disturbing trend to find the "look and feel copyright" myth propagated (knowingly or unknowingly) by so many web apps.
Update: I actually just noticed one small difference... the the Highrise ToS actually specifically mentions "design elements or concepts"... the "or concepts" not being found in a lot of our original results (also not found in the Backpack or Campfire ToS)... so lets Google the latter part of the phrase: "visual design elements or concepts without express written permission"... 66 total results.
Update #2: I received confirmation that the GitHub ToS was indeed inspired by 37signals (one down, 375 to go). It was also suggested that I e-mail a member of the GitHub team with concerns regarding the ToS. Those concerns could then be raised when their terms of service are reviewed by a lawyer in the near future. E-mail sent. I hope it makes a difference.
From the close of my e-mail (and this goes out to those other 375 sites as well):
I hope GitHub isn't the kind of place that would mindlessly absorb another companies point of view on a much disputed issue without thinking it through for themselves. A few small changes could remove this bias completely from your Terms of Service. I think it's in everyone's best interest that an application's terms of service stick to defining terms of service and do not attempt to add to, modify, or misrepresent copyright law.
Idle thought of the day: I wonder if any of those remaining 375 companies are actually using a 37signals inspired ToS (including: "look and feel of the service is copyright") to protect a 37signals inspired "look and feel"? :-)