Many businesses without the money or other resources to support in-house web development projects frequently contract with outside web developers. However, the Internet is awash with offers of web design services by individuals with questionable or impenetrable qualifications, and it is not uncommon for less experienced and less professional web designers to take short cuts to project completion by copying content found on other parties’ web sites and incorporating that content into the works created for their clients.

Aside from reflecting a poor work ethic on the part of the developer, this conduct is legally and economically problematic for the business ordering the work. Copying of a third party’s original work without a license to do so constitutes copyright infringement, and, even absent intent to infringe or even knowledge by a business that the content belongs to another, it can subject the business to stiff penalties in the form of the content owner’s actual damages or of the statutory damages allowed under the Copyright Act. Copyright infringement also is a valid basis for injunctive relief, giving a court the authority to order that the business shut down its infringing site. Even without a court order, the same result can occur if the content owner sends a notice to the business’ Internet service provider (ISP) under the Digital Millennium Copyright Act (DMCA). Under the DMCA, an ISP may avoid liability for infringing content hosted on its servers if, upon notice of the presence of the content, it disables access to the infringing site. Either way, an otherwise well-intentioned business potentially can have its Internet presence shut down, its business thereby disrupted, and its reputation damaged due to the actions of a vendor.

For these reasons, it is important that a contract with an outside web developer specify that all work to be completed must be original and that the web developer is to assume full risk and responsibility for third-party claims based on the work produced. In some cases, it may also be a good idea to insist that the developer maintain coverage for third-party claims naming the business as an additional insured or, if that it not feasible, to include a liquidated damages provision in the contract requiring the developer to reimburse the business an agreed amount in the event that the work it produces is shown to be a copy of another’s. As with all other vendor agreements for project work, it is advisable to allow a knowledgeable attorney to review the agreement prior to signing.

Posted by Marketing Department at 07/27/2009 04:22:03 PM |