April 7, 2006 6:15 PM PDT

Police Blotter: Ex-employee's Yahoo Mail subpoenaed

"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: A Vermont bioscience company sues former employee over his personal academic Web site and wants the contents of his Yahoo Mail account.

When: A federal judge in Vermont ruled on March 30.

Outcome: U.S. District Judge J. Garvan Murtha does not dismiss subpoena.

What happened, according to court documents: Sometime around 1995, Robert Boehringer began working as a senior software engineer for MicroBrightField, a bioscience company in Williston, Vt. He signed a standard employee confidentiality agreement when hired.

Boehringer's specialty was research into stereology, the science of three-dimensional interpretations of two-dimensional images, and MBF paid for his master's degree in computer science at Virginia Tech.

Using his academic account, he created a Web site on Virginia Tech's computers that is now password-protected. A version saved on Archive.org in 2004 includes a wealth of information about stereology from a math-intensive, academic perspective. His personal home page is not password-protected.

(Here's an excerpt from Archive.org: "There are a number of ways to randomly apply a fraction. Here are two ways. One way is to select a fraction f and then select the first nf sections as set 1, the next nf sections as set 2, and so forth...")

This is where the tale becomes murky. MBF claims it demanded that Boehringer move his Web site from Virginia Tech to the corporate servers, and he refused. Around the same time, the company says his performance at work "began to decline significantly" and that he "did not promptly complete work assigned to him."

In any case, in 2005, Boehringer quit and joined Visiopharm, a Denmark-based company selling software that competes with MBF's own products.

MBF claims that Boehringer sent in his resignation on July 14 and made it retroactive to July 1 but nevertheless accessed MBF's source code repositories eight times in early July.

The relationship soured. MBF's lawyer started sending nasty-grams to its former employee alleging trade secret infringement and copyright infringement (a few MBF PowerPoint presentations and photographs from corporate literature were apparently on the Virginia Tech site). MBF went so far as to register the copyright for the Virginia Tech Web site, claiming it owned all of Boehringer's writings because they were a "work for hire."

Eventually MBF sued Boehringer alleging copyright infringement, breach of contract, trade secret theft, and violation of the Computer Fraud and Abuse Act (for allegedly accessing the source code repository). It also sent a subpoena to Yahoo for the contents of Boehringer's e-mail account.

Boehringer's lawyer filed a motion to quash the subpoena, saying it was a family account and was also used for attorney-client communications.

Judge Murtha said, however, that the subpoena was filed in the Northern District of California and therefore "the court is without jurisdiction to consider the motions to quash."

For the record, Boehringer denies MBF's allegations. He also has the option of filing a motion to quash the Yahoo subpoena in California.

See more CNET content tagged:
Vermont, Police Blotter, subpoena, Yahoo! Mail, Yahoo! Inc.

13 comments

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THE RIGHT TO COPY
FYI

IF THE WEBSITE WAS CREATED IN HIS OWN DOMAIN USING HIS
OWN TIME THE COPY IS TO REMAIN HIS AND NOBODY HAS A
REGISTRATION RIGHT TO IT BUT THE RESPECTIVE OWNER.

ONLY IS IT A EMPLOYER'S COPY WHEN THE EMPLOYEE IS BEING
CONTRACTED TO DO THE COPY OR HAS CREATED THE COPY ON
COMPANY TIME.

SO IF HE DIDN'T CREATE THE SITE OR THE COPY ON COMPANY
TIME THEN THE COMPANY HAS NO RIGHT TO IT.

ARGUE THAT!

~JUSTIN
Posted by OneWithTech (196 comments )
Reply Link Flag
Not strictly correct...
...if there was proprietary information, owned by his company, posted to his "private" website.

Think copyright: Would I have the right to post Dan Brown's infamous "DaVinci Code" en toto to my own personal website, even if I was his personal assistant?

If, in fact, the peregrinations of mathematic thought which were posted on the "private" site, were the very thoughts and solutions that he actually submitted within the context of his employment, then his employer ~may~ have the right to the affirmed copyright and ownership.

The fact that he may or may not have done this on "company time" is no defense, especially if it can be shown that the employees of that company were routinely doing related work after hours.
Posted by rpbell (13 comments )
Link Flag
Also depends on employment contract
Some employment contracts expressly claim ownership of any innovations, patents, copyrights or other intellectual property that an employee may create during his employment, whether or not they were made using company resources or on company time.

While a company would probably have a hard time claiming ownership of an employee's love poems to his pet goldfish, they would stand a much better chance of getting their hands on stuff that touchs on the same field as the work he is employed to do.
Posted by JFDMit (180 comments )
Link Flag
What a world it would be
Lets jump ahead as a race as a people on one planet.
How far ahead could would we(the human race) be if we did away intelectual property. What a concept it would be if all the greatminds got together and shared their ideas with one another rather than holding each other back for the Big payoff. We need a new world plan to survive and move forward
Posted by cpr5150 (2 comments )
Reply Link Flag
What a world it would be
Lets jump ahead as a race as a people on one planet.
How far ahead could would we(the human race) be if we did away intelectual property. What a concept it would be if all the greatminds got together and shared their ideas with one another rather than holding each other back for the Big payoff. We need a new world plan to survive and move forward
Posted by cpr5150 (2 comments )
Reply Link Flag
pipe dream
In the real world, communism as an economic system does not work. Period.
Posted by ImperialPanda (8 comments )
Link Flag
as soon as
Get together and creativly do what? Figure out how to feed and support yourself and family while getting nothing in return but some, "thanks that works great"? Somehow I dont see that as filling my belly or gas tank.
Posted by R Me (196 comments )
Link Flag
Now the whole world can see the site.
Now thanks to their lawsuit the whole world can see his site. The password "protection" on that site is as lame as it gets. All you have to do is X out the box several times and it goes away. Sure, it comes back when you click on a link, but just X it out again. It's a hassle, but it's definitely readable. <rolls eyes>
Posted by anarchyreigns (299 comments )
Reply Link Flag
 

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