Deleting Software I Wrote Upon Leaving Employment of a Company

Question

For some context, I live the US, in an at-will state, and there's no employment contract involved.

When I was younger, I worked at a warehouse doing inventory-related activities as an hourly employee and my job description reflected that. To make my own job easier, I wrote software that automated a lot of the manual parts of it (completely outside the job description). There were others in my position and they started using the software I built to save themselves time. I never really received anything for it, and I don't expect compensation or anything now, but my question is: would I be liable if I were to have deleted my code when I left? IE for "damages" to productivity.

Answer 1

I have to disagree with gnasher's answer:

If you wrote this software during your working time (nine to five), and were paid for that time, then the company owns the software.

If you are a software developer or perform some sort of creative job like photographer for your company then you most likely have a contract that spells out that things you create are 'works for hire' and that the company owns what you create while working for them.

Generally the person actually doing the creative work is the owner of the copyright. Works for hire are exceptions:

1. when the work is created by an employee as part of the employee’s regular duties and
2. when a certain type of work is created as a result of an express written agreement between the creator and a party specially ordering or commissioning the work

It doesn't sound like your regular duties included writing software, and it doesn't sound like you had an express written agreement for them commissioning the software. It doesn't even sound like they really know the software exists, although other employees use it.

Quoting another page:

Notably, a person could be an employee and create a work as a special job assignment, outside the scope of the employee's regular work. Under such circumstances, the work is not a work made for hire under the Copyright Act.

So even if your employer asked you as a special job assignment to create the software, you may still own the copyright. Also:

Courts also employ the "instance and expense" to determine if a work is a work made for hire.

This test considers the following factors: (1) at whose instance the work was prepared; (2) whether the hiring party has the power to accept, reject, modify, or otherwise control the creation of the work; and (3) at whose expense the work was created. In short, where a work was created at the hiring party's (or employer's) instance and expense, it will likely be deemed a work made for hire. Additionally, the Second Circuit has stated that this test is met where the "motivating factor in producing the work [is] an employer who induced the creation." An employer must also direct and supervise the manner in which the employee performs his or her work.

It doesn't sound like the employer had any involvement in the creation of your software. If you worked on it during company time there is an argument for expense there, but it could just as likely be seen as if you were goofing off at work. Although since it actually seems to have improved your productivity and that of other employees, that would be a hard case to make.

So while you likely own the copyright, allowing others to use it and then taking it away would not be nice. Also while you may be in the right, if you just delete it your employer might take offense and sue you. While you may win, a lawsuit could be costly for you. See @David's answer for some more caveats. If it is something you wished to continue working on and possibly sell to other warehouses, I would have negotiated or granted a low-cost or free license to the place you worked and left it at that.

Answer 2

If you wrote this software during your working time (nine to five), and were paid for that time, then the company owns the software. Even if they didn’t know you wrote it. So deleting the software would be damaging your company’s property.

If you wrote the software in your spare time, then it is legally tricky. What your job was will make a difference. If you don’t get any benefits from it, I’d leave the software alone. Destroying it will only cause you trouble.

Answer 3

(USA) This gets complicated quickly and depends entirely on the particulars of your situation and your jurisdiction. At a high level, there are several distinct issues:

1. Destruction of Data

This is the easy one. The Computer Fraud and Abuse Act provides civil and criminal penalties when you "intentionally cause damage without authorization" to your employer's computers. This includes the unauthorized destruction of data, even if you're the one who put that data there in the first place, and even if your employer doesn't know about it right now. Once the data is on your employer's computer and being used for any length of time, then it becomes their data.

The definition of damage is subjective, but if you know that your employer depends on your data, and that deleting it would negatively impact their operations, then deletion probably means damage in this case.

None of this means that your employer owns your software, just that they own the data on their devices. If you felt that your employer improperly has copies of your software, then you need to go through proper channels to have it removed.

2. Copyright and Ownership of Intellectual Property

Copyright is the legal authority to determine how a created work can be used. If you own the copyright to your software, then your employer probably needs your permission to use it. If your employer owns the copyright, then they can do whatever they want with it, and in fact, you would need your employer's permission to continue using the software.

In general, copyright belongs to the author, except in the case of a "work for hire." The work for hire doctrine states that an employer owns the copyright of anything an employee makes within the "scope of employment" for that employee. An easy example would be a software developer: developers are explicitly hired to develop software, so any software they create that is even tangentially related to their employer automatically becomes the property of their employer. There is no clear line, but the courts have found many factors that influence whether or not something is within the scope of your employment:

a. Were the skills required for the software related to your job expectations. If you're hired to move boxes in a warehouse, software development is not related to that job.

b. Where and how was the work created. Did you create the software on a company computer, while you were on the clock, or while you were in your company workspace? If so, then your employer has a strong claim of ownership.

c. Were you compensated in any way for the software?

d. Was the software created as a part of your usual tasks assigned by the employer? Do other employees create similar works in the course of their employment?

e. Do you have an employment contract that assigns copyright to your employer?

Note that this is not an "all of the above" list, it's an "any of the above." If any of the above are true, then your employer likely has a strong claim of ownership.

3. Licensing

Even if you think you own the software, your employer may have a right to use it depending on your actions.

a. Did you include a license in the software? This can be done easily with many software development platforms, and it can be as simple as clicking a button or even may be included automatically. If you already distributed your software under license, you typically can't revoke an existing license easily.

b. Again, do you have an employment contract? Even if you own the copyright, your contract may grant your employer a license to use it.

c. If your software has been in use at your employer for any length of time, you may have granted your employer an implied license by your actions. If you are the one who put the software on the employer's computer and shared it with curious coworkers when they asked about it, you have implicitly given them permission to use the software.

4. What to do next.

If you're at all uncertain about what to do, consult a lawyer in your jurisdiction. IP can be messy at the best of times, and in cases like this without a clear contract up front things only get worse. If it turns out you don't own the copyright to your software, take it as a hard-learned life lesson and know better next time.

One potential thing you could do is to show your software to the higher ups in the company and explain yourself. If you can show how your software makes the warehouse more efficient, you can make a business case about the value of the software. If you save the company 10 hours a week of warehouse labor, that might be $150 a week or $7,800 a year. Maybe they're looking for someone to help streamline their warehouse operations and would hire you into a different role. Or, you could say that you're willing to sign a contract that unambiguously assigns the ownership of the software to the company for a reasonable sum of $2,000 or $5,000 or whatever number you think makes sense and see if they bite.

You haven't described the scope or function of your software, but beware that most hobbyist projects are not actually that valuable, if at all. Maybe you've struck gold, but probably not. Unless there's some "secret sauce" that's especially hard to comprehend, it's likely that your employer could hire a developer on contract for a few weeks or a few months to build a similar application if they really wanted their own copy. But, a developer on contract might be $10,000-$20,000 a month or more depending on location and skill, so your goal would be to seem like a bargain compared to that while still adding value to the company.

Answer 4

There are cases where it would be tricky. For instance, if you used your spare time to create a personal startup that connects apartment lessors and renters, while running the pumps on an oil rig as your day job.

Creating software for inventory management, while working in inventory management, gives the employer a stronger case to claim work for hire. Even if you did 100% of the code in your spare time, the company will have a case that your use of this software in your job duties constituted research and testing, both of which are part of software development. US law is employer-friendly in this regard.

You would be legally at fault for deleting it, just as if you were a random black hat hacker attacking the company and destroying its data.

This is not universal. A few countries have laws that require explicit compensation for IP transfer, even from an employee. Even in these countries, the creator's only remedy is a civil suit to receive that compensation; they cannot unilaterally take the IP away.

Practically, selling this software to the company for a modest fee is usually the best outcome for both parties, giving the company clear undisputed ownership, so many employers will agree to it even when not required.

united-states

Answer 5

David's answer above is especially good regarding the wide array of legalities pertaining to both your ownership of the software and possible consequences of your deleting it from their system prior to leaving. However, if you do, for some reason, want to stick it to your employer on your way out the door, none of the above cover how you might go about doing so.

Let's assume that your employer owns the copyright for the software, which means that you cannot delete it on the way out. Your employer offers you no direction on how to develop this software, nor any oversight. Given that a random guy in the warehouse built this software rather than someone tasked with actually improving company operations, they probably don't have anyone on hand to take it over from you, either, nor to investigate any changes made to that software (if they even realize its importance to their operations). You could potentially consider modifying the software to implement some sort of "deadman's switch".

If there is a portion of your software which can be run from a network location associated with you, which may be taken offline and destroyed upon your departure from the company, then the company taking your assets offline upon your departure would inadvertently trigger that switch, causing it to no longer work. Given a lack of change logs or oversight of the program's development, it would require a lot of effort for your employer to potentially figure out that this was done on purpose - effort that they're unlikely to have on hand, given that the situation seems relatively innocuous, and they don't seem to pay much attention to the warehouse anyways.

Another way to do this is to create a password protection. You may not be able to password protect the software from access, but maybe you could password protect editing of important elements in the software. This is a strategy a friend of mine once used, as he was responsible for maintaining an important organizational spreadsheet which required updating a few times a year, and edit authority was based on his password. A couple months after his departure, the spreadsheet needed updated. Since no one knew his password, and the bosses who fired him did not want to go and ask him nicely for the password (this was not a particularly IT-savvy business), they just dealt with losing the spreadsheet, tasking someone else with making a buggy, poorly functioning replica of the original.

Is any of this a good idea? No, certainly not. Is it something you would likely get away with? Probably. But keep in mind, the people you'll be screwing over won't be "the bosses" or the company at large - they'll just make your peers work harder to overcome the loss of their useful software. You have to think about what your purpose is in doing this, and who you're targeting here.