I am not sure if he did or not, I changed that part on my forums and it reads a little different but I did add the ToS and Privacy Policy to it and extended the window to 400px high.

I changed mine as well. My TOS is a novella. I also have separate copyright statements, privacy statements, and privacy policies. But if I had to prove in a court of law that every member has agreed to those specific terms it would be a challenge.

Oh yeah PSF, that is why the ToS should only be viewed as an agreement between the owner and user(s) , if the user(s) break the ToS they should immediately ban or deny them access.

In the OP's case of course this is just so different and really sucks for the OP, it will be very hard to do something if he is not willing to spend money and time I think.

The point though is that the OP can still run his site with the original name...etc and the serach engines will drop the indexing of the stolen content because it's been dupliacted, anyway, he's nothing to loose fro trying every avenue like a DCMA.....etc, worst they can say is no!

Its also worth noting that since recently Google takes DMCA requests into account with ranking. The more DMCA notices a site gets, the lower the ranking.
But basically the OP can get that whole site out of Google, effectively cutting off their organic search influx.
The duplicate site would still be able to email all members to get it active.