Enjoining Former Employees from Taking Software
| Publication year | 1995 |
| Pages | 1771 |
1995, August, Pg. 1771. Enjoining Former Employees from Taking Software
Employers are frequently confronted with the problem of what to do when employees who have developed or worked extensively with computer software quit their jobs to join competitors. The obvious dangers are that the former employees will duplicate the software for the competitor or use trade secrets about the software's development, applications, workings and potential enhancements to create similar or better programs. This article explores some of the issues that arise in lawsuits to enjoin former employees from taking or disclosing computer software.
Assuming an employer has taken the appropriate steps to protect its software, the source code that makes up a program is clearly protected under copyright law.(fn1) Even if an employer has not registered its copyright nor sought patent protection where appropriate, trade secret laws will protect confidential software.(fn2)
In addition, copyright and trade secret laws also will protect other property related to the source code, such as flow charts, training manuals and other design documents.(fn3) Similarly, both copyright and trade secret laws protect a company's software from being used to create derivative works---"new" programs building on parts of the former employer's software.(fn4)
More difficult issues arise when a former employee takes or threatens to take confidential information about software, but not the software itself. Although ideas are not protected under copyright law, certain computer know-how is protected under trade secret laws.(fn5) For example, how to approach certain programming problems, software architecture or systems that combine nonconfidential components may well constitute trade secrets.(fn6)
To obtain a preliminary injunction, a party must first show a threatened, irreparable injury. The existence of a threatened taking or disclosure of software is sometimes obvious, such as missing or copied files. In most cases, however, former employees do not readily concede their intent to violate the law.
The fact that a former employee goes to work for a competitor may not, by itself, be sufficient to demonstrate that the employee will disclose confidential...
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