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Written by Leah Driver November 20, 2006 Marketing Exclusively for Clients
This is a response to those who would be mad if a marketing company (and in my opinion, that's basically what an SEO is) did work for a competitor years after doing work for them. Granted, I live in the US and I noticed the original post along this vein was from the UK, so I may be comparing apples to oranges but -- you've got to be kidding me, right?? |
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this post ran in 
| I had originally posted about limiting marketing vendors from doing similar work for competitors. We have a standard consulting agreement for that purpose. But you are correct that US courts assert the rights of individuals to work and make money in their chosen field. That is where non-competes become gray, as has been pointed out. So we limit the period of the non-compete to 2 years after our work has been completed. The legitimacy of any non-compete is based on the ownership of the knowledge gained during the engagement. When I pay someone for internet marketing help, they need to learn about my business: customer personas, keywords, etc. We do testing. We learn what works and what doesn't. There is a cost associated with this work and this is what I am paying for. All I am saying is that it would be unfair for a vendor to take the specific knowledge that has already been paid for and sell it to someone else, either during the engagement or soon after. We have determined that period to be 2 years. Tim Klimasewski |
David Spahr
said:
| It should be noted that the person doing the optimization work on your site is also bringing his/her knowledge into the project. Further, that person's knowledge is probably more important to your ranking than the knowledge of your business that you provide or you would not be hiring them (although knowledge of your business is vitally important). That person is likely to use the same kinds of techniques to optimize your site as they would with anyone else's site. This, in itself, make the whole non-comp idea pretty shaky (I am not an SEO BTW). Further, it should be noted that there could be some copyright issues. If the SEO uses his original ideas on your site, his contribution to your site probably has copyright standing unless you have a carefully worded "work for hire contract" with them. Remember, technically they are not your employee. They are a sub-contractor. "Copyright Basics" says: ---------------------- "Only the author or those deriving their rights through the author can rightfully claim copyright. In the case of works made for hire, the employer and not the employee is presumptively considered the author. Section 101 of the copyright statute defines a "work made for hire" as: - a work prepared by an employee within the scope of his or her employment or - a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary." ---------------------- The important wording in section 2 is " if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." When hiring an SEO this issue may have as much importance as any non-comp agreement. David Spahr |
Dan Jeffers
said:
| I don't think there is a moral dimension to non-compete agreements, not between parties that have parity in the original negotiation. Basically, is someone does work for me, I pay them. If they learn from it, great. If that bothers me, I can pay them less and call it an internship. If they use my contract to increase their own ability to serve other clients then I should get a discount, if I ask for it. If I really don't want them to work for a competitor, I can pay them a lot more, something equivalent to the amount of money they'd likely lose (discounted by the security of having a steady paycheck, of course). Non-competes only get exploitative when the party with greater negotiating power forces them on the other party as a condition of the initial contract or employment. Dan Jeffers |
Nathan Holley
said:
| The discussion on marketing exclusivity and non-competes has been interesting. My take on this issue is fairly similar to others I've read here. I don't feel it's reasonable to expect a non-compete to be relevant for, say, over 3 years (or 4 years as the SEO being sued disclosed in his post). It is really, really hard to enforce any kind of non-compete in my experience. When dealing with very short term contracts these kinds of contractual obligations can hold some legal sway, but in anything over 12-18 months they're pretty useless. I've worked with lots of contractors over the years. Only on two occasions was I concerned about competitive intelligence - both times I hired the people full-time! The kind of work I was doing demanded some research and knowledge that I had earned over the course of several years. These people knew my niche inside and out. It would have been disgustingly simple for them to take that intelligence and market in a competing field and probably do very well against me. I continue to hold them on retainer and have for the last several years. This kind of situation scalded me on the whole arrangement. Now I "chop up" my contracted work into smaller pieces to avoid giving lots of specific knowledge to any one firm or part time employee. I'm getting much more specialised in the duties I outsource and it's nice to keep things simple and not have to worry about non competes and all that bother. |
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