Would you believe "several generations, if not an eternity"? This question isn't the latest Zen riddle, or updated Gertrude Stein witticism. Instead, this was the actual issue - and answer - facing a New York court in late 1999.

The case involved a noncompetition covenant signed by a website content developer, who agreed not to work in "direct competition" for twelve months after he left employment. When the developer resigned after only eleven months to take a better offer, in the same general online field, the first employer tried to get a court order to block him from working.

The court disagreed, however. It let the developer take the new job, since it saw no "direct competition" between the developer's different duties for the two employers, under the narrow definition of "competition" written into the contract.

The court also refused to block the developer from working in any Internet businesses in the same industry as the first employer, generally. Although the first employer feared that the developer would "inevitably" disclose its trade secrets to another firm in the industry, it had no evidence that such leaks had occurred, or would cause any harm. The first employer could easily have written a contract defining competition more broadly, but it did not.

More interesting than the details of this particular case, however, was how the effect of the Internet - and "Internet time" - forced the court to change traditional legal rules. That effect proved particularly strong in a dispute as fact intensive as deciding what is "competition".

"Internet time" has become the latest media buzz phrase for the rapid, sometimes instant rate of change, in everything involving the Net. The growth – and decline - of companies, the movement of information, and the introduction (and replacement) of new technologies all happen much faster online than off.

The court could not ignore this reality of today's Net life, and how it complicated the comparison of the two employers' businesses to see if they were in "direct competition". The court complained of "the difficulty in assessing the characteristics of (the second employer), an embryonic business entity that will compete in a nascent industry which is evolving and re-inventing itself with breathtaking speed."

Against that background, the court questioned the fairness and need for any restriction on employees, even one as short as one year. Although attorneys often recommend that a one year limit on employment after an employee leaves is so reasonable that few courts will challenge it, here the Net made even one year too much.

Instead, the court struck down a one-year noncompetition covenant as "too long, given the dynamic nature of this industry, its lack of geographical borders and (the developer's) former cutting edge position with (the first employer), where his success depended on keeping abreast of daily changes in content on the Internet."

Not only did the court side with the developer, but it also threw out the whole restriction - rather than protect the first employer's expectations by reducing it to a reasonable time or scope. The court apparently was offended by the overreaching effort to keep the developer out of a rapidly changing industry entirely, without any evidence it of harm from the developer's new job.

"When measured against the information technology industry in the Internet environment, a one-year hiatus from the work force is several generations, if not an eternity. Clearly, the balance of hardships tips decidedly in favor of the (developer)."

Although just one case, this court clearly understood that the unique aspects of the Internet and online economy forced it to throw traditional legal rules out the window - such as the rule of thumb that a one-year covenant will always stand up in court. Both employers and employees in the Net economy must be sure that form contracts truly reflect the realities of today's e-world - or rewrite them in Internet time.

For example, employers might insist on prohibitions on stealing clients or employees, instead of simply prohibiting competition - which can change with each new website or technology. As job descriptions change by the minute, employees, in contrast, should avoid broad restrictions that may lock them out of jobs or technologies that don't exist yet.

So how long was a year in Internet time for the developer in this case? It was, in fact, no time at all - the actual time that the court required him to honor his noncompetition covenant.

Copyright 1999 Stanley P. Jaskiewicz, Esquire

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