The portability of intellectual property is increasingly a competitive issue in business, and therefore an important subject of legal debate. A corporation expends a lot of capital providing its employees with the resources and compensation necessary to create, all the while tempering its hopes with the reality that a key employee may be lured elsewhere and have to be replaced (along with his or her knowledge, both technical and of the company).

This creates some amazing tension when the Internet and one of its greatest platforms, Twitter, become involved. A great deal of publicity has attended the story of Noah Kravitz, an employee who amassed about 17,000 Twitter followers while micro-blogging for PhoneDog, a South Carolina company that reviews mobile devices and apps. Mr. Kravitz departed his employer in 2010, joining another company in essentially the same market space and changing his Twitter handle, effectively porting the 17,000 followers with him.

PhoneDog has sued Kravitz, seeking $340,000 from him on the theory that the followers constituted a customer list. The primary legal questions arising are:

Were the Twitter posts made on behalf of PhoneDog? With the company’s authorization? With the attendant business benefit intended to accrue to PhoneDog? Also, were the Tweets made using company equipment and on “company time”? The answers to some of these questions should be fairly straightforward, but others can be amorphous in the employment context.

The clearest path to avoiding a dispute like this: hire a good e-commerce lawyer to draft an Internet and social media use policy your company can implement. This is secondary, however, to having each hire execute a solid employee agreement that clearly lays out the ownership of intellectual property created during the working relationship and addresses the assignment of rights that are either ancillary or could be unclear.

Most people are not out to cause any kind of fight or overthrow at work, but they have to know what the rules are beforehand so they can be accountable for following them. Social media is quickly creating a world where the professional and personal blend, and where both are conducted on the fly. About one-half of companies have yet to issue a policy giving guidance in these spheres, and that is creating some major fault zones in the employment law and intellectual property law landscapes.

Links:  Fortune CNN and WRAL Tech Wire articles on the controversy


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