Web Development Gone Awry:
Identifying and Avoiding
legal pitfalls for Web Site Developers and Clients
by K. William Kyros, Esq. Jan. 1999
I recieved a call in a few months ago from a web site developer
who had just had one of her clients terminate a web site development
and maintenance contract. The site which had taken over 100 hours
to develop included sophisticated graphics, cgi scripts and numbered
over a hundred pages. Since the site required frequent updating
the agreement had spread the cost of development over the course
of a year and included a lucrative maintenance schedule. The
parties had a good relationship and the site won an award by
a boutique review firm after being up and running for a short
time.
After two months the relationship abruptly soured.
A rival developer critiqued the site and concluded it lacked
META Tags, wasn't registered "properly" in the search
engines and that its web address or URL was flawed because it
"buried the site" in a subdirectory. The client with
the site was persuaded to terminate/break its agreement with
the original developer and hired the newcomer to "fix"
the old site.
The newcomer may have avoided problems had he not emailed the
original developer the substance of his criticism in what can
best be described as a derisive manner. In the end legal action
ensued in which more than one party was heard to exclaim "What
the hell are META tags?" Ultimately the case never reached
a dispositive conclusion as counsel for the rival developer withdrew
from the case and the rival developer defaulted.
The net results were: the original party lost its original award
winning web site (taken down by the disgruntled developer), the
developer was out of a client and lucrative maintenance agreement
and the rival developer was slapped with an unwanted law suit
and default. Web development gone awry.
Big Business
Web site development is big business.
Garnter Group estimates that it will be a 6 to 8 billion dollar
a year industry by 2000. With the internet and www threatening
to restructure markets and alter the way companies do business
internet stocks are soaring. The networked economy is here to
stay and companies like Amazon (worth 4.2 Billion 12/98), America
Online (17.7 Billion 12/98), and Yahoo (6.5 Billion 12/98) are
reaping the benefits. E-commerce sites like amazon, e*trade,
Ameritrade, ebay have given established companies a wake-up call.
The instrumentality of this revolution
is the web site developer. About 40% of the Fortune 500 paid
between $100,000 to $500,000 to develop sites, a smaller number
(about 5%) paid between $500,000 and 1 Million, the remainder
paid somewhere between $25,000 and $100,000. These numbers are
only for the initial site construction and do not include ongoing
maintenance, fine-tuning, storage & access etc. The field
is wide open and no single design firm has become dominant as
hundreds of small firms compete for big business. The New York
firm 13pt.com which developed Barnes & Noble's foray into
the www is a one man operation; the San Francisco firm www.construct.com
which boasts 10 Fortune 500 clients including Sony, Microsoft
and Sun Microsystems has 18 employees. It is truly an industry
in its infancy, and the market continues to explode as more and
more small businesses decide to set-up web sites.
Technology Meets Marketing
A careful observer will notice how a
web sites design and other difficult to measure factors such
as "ease of use" are a measure of the sites success
or failure. Each week trade publications in the burgeoning cyber-industry
feature columns and advice about web construction and design.
Internet World, Mecklermedia's weekly "voice of e-business
and internet technology" reviews sites each week with comments
such as "Not only does the information architecture need
help, but the overall design is lacking..."; "Each
subsite has a unique navigation system"; "All the main
information is easy to find with an intuitive frames-based system."
How does this play to your average technophobic
business client who wants to set up shop on the internet? Terms
such as "navigation", "subsite", "download
speed", "Browser Crashes", "Meta Tags"
are likely to fall on deaf ears or at least confused ones. The
gap in knowledge (and terminology) between techie web developers
and clients who want to establish web sites can and does lead
to problems.
Problems: Sources of Conflict
Minor disagreements are the standard
in any web site development arrangement. The process of creating
a web site is often started with little direct input from the
client and the final product is often the vision of the developer.
Good communication and greater input from the client can help
avoid classic aesthetic/ design disagreements which are often
the cause of friction. The development of a web site entails
certain unique areas of concern.
Print vs. Web
A common source of concern are the inherent
differences between print media and designing layout and text
in html. Clients frequently want to see their print materials
reproduced on their web site with the same font, layout and graphics.
A client who wants a brochure or other printed promotional materials
published on the web needs to understand the limitations of the
medium. The developer must explain the bandwidth limitations
and download times, graphic sizes and font limitations. Clients
frequently have difficulty understanding the difference between
text created in html and text done in image editing programs.
As a consequence they may request that all of the text look like
the nicer typeface developed in Photoshop, without understanding
how a page is created.
Generally, the people viewing a web
page are using the default settings of the browser they are viewing
the page from. On PCs this will probably be Times Roman, on Macs
it will likely be Courier. Additionally, text is displayed at
different font sizes in different browsers and text on PCs is
generally displayed larger than on Macs. Personally I know unfamiliarity
with this technology recently involved a client printing out
pages of his web site and faxing them to his web developer. The
client wanted to know why the font was so bizarre, it was "alleycat
bop" (or some other obscure rarely used font on his PC).
Apparently someone had simply changed the default fonts in Netscape.
The problem was easily discovered and remedied. In other cases
though the problem will only be apparent after the developer
has fashioned a site they believed met the clients expectations,
only to discover the client wants the site to look "exactly
like my yellow pages ad". (Actual request). The point is
that many clients will continue to equate web sites with print
media. Solution: The best means to avoid a potential conflict
is for developers to spell out exactly what they are capable
of doing with the materials the client provides, the developer
(and client) should attempt to incorporate this discussion into
the signed agreement between the parties in the form of a contract
memorandum.
Search Engines
Many web developers offer as part of
their consulting services some degree of web site promotion after
the finished product is ready to go online. Indeed the promotion
of the site will often be viewed as more critical than the actual
quality of the site itself, with most clients primarily concerned
that their product or services are "found" by the millions
of web surfers. Most of this promotion will involve "registering"
the web site on the major search engines. Companies like doubleclick.com
offer banner advertising on the search engines for thousands
of dollars a month. However, most of the promotion in the search
engines is free and involves "submitting" the site
for inclusion into the search engines. The best known search
engines (the big seven) are Yahoo, Alta Vista, Infoseek, Lycos,
excite, hotbot & miningco. each use different indexing procedures.
Yahoo and Miningco tend to be very selective and include only
sites visited by a human being who decides that a particular
site is worthy of inclusion. The other sites rely on software
called "spiders" that surf the net and index words
or phrases used in the site. There is often no sure fire method
of guaranteeing that a particular site will be in the "Top
10" results of a given search, but every web developer tries.
Techniques known as META Tagging and headlining are effective
in some, but not other search engines. META tagging involves
placing a series of key words or phrases in the html code that
is not seen by the end user, but is designed to attract the attention
of the "spiders"-software that indexes the material
in the search engines. Headlining involves the more obvious practice
of repeating certain words or phrases in the html title or body
of the web site.
Registration and promotion in the search
engines is an obvious, but often overlooked source of conflict.
Here again the gap in knowledge between developers and clients
may often result in confusion and frustrated expectations. Two
issues are frequently encountered: Lag Time and Appearance/ranking.
Lag Time
The search engines take their time before
indexing a site that is submitted or registered (if they include
it at all). The reasons for this lag time vary, some of the software
is slow, 100,000 new sites go online every month, the site is
deemed unworthy by the web master at Yahoo etc. There is little
a developer can do to account for the lag time which can be weeks
or months, except to warn the client that registering a web site
isn't the equivalent of putting an advertisement in the newspaper.
A site needs to "grow," be indexed in the search engines,
book marked by potential customers etc. before it generates a
tremendous amount of activity. Developers often are faced with
clients asking them why the site isn't in Yahoo: Answer: the
site went up yesterday.
Ranking
Assuming the site is registered, it
may not be exactly where the client would like it to be. "
I want my site to be first..." This request is also a common
one among developers, who must carefully explain the value of
promotion as well as the inherent limitations of such efforts.
As anyone who has ever surfed the web knows, the use of the search
engines is an inexact science. A search for "Exxon"
in Alta Vista for example, turns up an environmental groups site
devoted to the the Exxon Valdez oil spill. For these reasons
the best way for developers to stay out of trouble is to include
an absolute disclaimer in the agreement, absolving the developer
of any responsibility for placement in the search engines. Short
of that the developer needs to make certain that the client understands
how the search engines work (or do not as the case may be) and
should attempt to incorporate that understanding in the contract.
Browser Software
Web sites are unique because their content is created in a
format that allows the data to be displayed on all sorts of computers
running all sorts of software. There are dozens of "browsers"
available that people will be using to look at the content created
for a particular site. A browser is a piece of software that
interprets and displays the data on the site. While most of the
users will be using Netscape or Internet Explorer, others will
be using aol's browser, scooter, web reader, web viewer or others.
Additionally many older versions of Netscape and Explorer are
still installed. Each of these browsers interprets data differently
and data on older browsers can be significantly altered. For
example, both Netscape 2.0 and Explorer 3.0 fail to support a
common layout tag called tables commonly used on web sites to
align information. On these browers- sites which use tables to
arrange data will appear "scrambled." Data such as
images and text formerly neatly arranged in invisible tables
will be stacked or shifted. Since it is impossible to guarantee
a web site will look the same on every machine, the agreement
should stipulate that the client acknowledges that certain end
users may not have the technology to support certain functionalities
of the site.
Dear Mr. Kyros,
I am currently a student hoping to be involved with the web
development field. Your article, "Web Development Gone Awry",
was so great! It highlighted a lot of topics that a new web-designer
would not initially think about because he or she may be more
consumed with landing a client first. Thank you so much
for publishing some of your knowledge on the Net! I will definitely
visit again and refer you to my fellow students.
Thank You,
Soo M. Lee
A future Web developer
|
