Intellectual Property Rights- When an Employee Leaves

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CCJS 321

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1.Can you (or Mr. Yourprop’s supervisor) search Yourprop’s personal vehicle currently parked in the Company parking lot for digital evidence? Support your answer.

In the world today, all efforts are being driven towards the upholding of intellectual property rights. The fact that the current world is driven by cut-throat competitiveness, it is only logical that companies would do all in their powers to protect and uphold their secrets. Merges (2010), in the article journal, “Contracting into Liability rules: Intellectual property rights and collective rights organizations,” asserts that, precisely, competitive advantages can be gained if the competing company employees a former employee from the different company. Upholding and maintaining trade secrets are essential in today’s business world; therefore, it is regarded as a very prudent tool in the fight for intellectual property rights (Merges, 2010). For example, it is through the upholding of such vital trade secrets that the Coca-Cola Company still enjoys success in the economic market for its formula used in the manufacture is a well-guarded secret.

In light of this, Mr. Yourprop has departed from the company. Evidently, it was the duty of Mr. Yourprop to uphold loyalty while employed. Therefore, in the absence of a non-competitive agreement, Mr. Yourprop is free to go into competition with the former employer based on his skills and competences. Mr. Yourprop being an American citizen means that he too is covered by the constitution. Clearly, searching Mr. Yourprop’s vehicle would be a violation of his rights and freedoms according to the Fourth Amendment. According to the Fourth Amendment, the right to privacy is to be maintained to the latter. Mr. Yourprop’s vehicle is his property, and he is afforded the right to privacy. Any act to search Mr. Yourprop’s car without a proper legal notice is a crime. Any valuable information that may be gained from the illegal car search would never be admissible in a Court of Law in the Supreme Land.2. If evidence of this theft of intellectual property can be found, Makestuff Company may seek to pursue criminal prosecution. Can Mr. Yourprop’s supervisor direct local police investigators to search his personal vehicle that is parked on the Company parking lot? Support your answer

The USA is a nation that was founded by our forefathers through the rule of law and order. All and sundry respected the law and upheld the law. Individuals know and understand their roles and duties. In as much as Mr. Yourprop is deemed and suspected to have been involved in the theft of intellectual property rights, it would be incorrect for Mr. Yourprop’s supervisor to instruct an arrest. It would be the wrong cause of action for Mr. Yourprop has not been convicted or found guilty by the court of Law. The Court of Law in the Freeland has the mandate of giving judgments based on the evidence provided. Evidence needs to be gathered in a legal, systematic manner that obeys all legal proceedings. If need be, the court of law is then to issue an arrest or search warrant for the accused persons. The right step would be simply during the exit interview; Mr. Yourprop should have been reminded of the legal obligations and policies of the company in the case that they signed any company policies (Danzig, 2012). If there is any perceived thought that Mr. Yourprop has indeed engaged in theft of the source code, it would be right to preserve the computer forensically and only retrieve it through the legal means and processes. Therefore, it would be wrong and irrational for Mr. Yourprop’s supervisor to instruct the police to search his vehicle for it is only a court of law through a judge that can issue a search warrant.

3. Can (or Mr. Yourprop’s supervisor) search Yourprop’s assigned locker in the Company’s on-site gym for digital evidence? Support your answer.

According to Beazley and Boenisch (2011) in their book, “Continuity Management: Preserving corporate knowledge and productivity when employees leave,” evidence collection in any legal proceeding needs to be lawful and observes all legal channels having being adhered. Collection of information or evidence using underhand methods such as “sneak-and-peek” would never be allowed in a court of law (Beazley & Boenisch, 2011). The credibility of the evidence collected through such methods such as searching Mr. Yourprop’s locker is wrong under the Fourth Amendment Act that protects properties of American citizens from unauthorized searches. All seizures and searches ought to have a search warrant and should be with a probable cause that the victim may be guilty of the crime. Therefore, searching Mr. Yourprop’s locker would be unlawful and illegal.

4. Can (or Mr. Yourprop’s supervisor) use a master key to search Yourprop’s locked desk after he has left the premises for digital evidence? Support your answer.

Amar (2012) in the journal “Fourth Amendment First Principles,” alludes to the fact that using a master key to open Mr. Yourprop’s locked desk is an infringement of the rights and freedoms enshrined in the American Constitution. In fact, such actions amount to a crime and Mr. Yourprop can sue or report such an infringement on the right to privacy to a court of law and the supervisor can be charged. Even if significant and crucial evidence is obtained from the illegal desk opening act, such evidence does not hold water in court since it was collected unlawfully (Amar, 2012). The constitution law ought not to be broken so as to give justice to a different crime. Thus, it would be a punishable action against the law if the supervisor does open the locker with a master key.5. There is a page in the Company’s “Employee Handbook” that states that anything brought onto the Company’s property, including the employees themselves, is subject to random search for items belonging to the Company. There is a space for the employee to acknowledge receipt of this notice. Mr. Yourprop has a copy of the handbook but never signed the page. Does that matter? Explain.

The law seems to encourage a policy of competition among corporate organizations. Hence, no formal legal restrictions have been placed on employees in the case that they leave the company. However, it is up to the company to formulate policies and strategies to protect themselves and their intellectual properties. The “Employee Handbook” was such a move by the company to protect against the undue competition so as to uphold their trade secrets (Danzig, 2012). The fact that Mr. Yourprop did not sign that part of the Company’s “Employee Handbook” means that he is free from any searches. The action of signing the “Employee Handbook” means that the employees commit themselves and agree to their right to privacy to be infringed. However, Mr. Yourprop did not commit or agree to this infringement of the right to privacy for he did not sign the agreement. Therefore, it is a matter that should be looked at with deep concern. Any acts of random searches and seizures on Mr. Yourprop’s property can result in legal implications for the company for Mr. Yourprop6. Makestuff Company uses a security checkpoint at the entrance to the building. A sign adjacent to the checkpoint states that the purpose of the inspection is for security staff to check for weapons or other materials that may be detrimental to the working environment or employee safety. Screening is casual and usually consists of verification of an employee’s Company ID card. Can security staff at this checkpoint be directed to open Mr. Yourprop’s briefcase and seize any potential digital evidence? Support your answer.

The Security checkpoint should not be for the purposes of obtaining any digital evidence. Any attempts by the security checker to seize Mr. Yourprop’s briefcase would be unconstitutional and a violation of the fourth amendment. The fourth amendment offered protection against any illegal seizures of property without any probable cause. The fact that Mr. Yourprop will be forced to open his briefcase while the security check is a casual one means that Mr. Yourprop is being discriminated (Merges, 2010). This would be a violation of the rights and freedoms as per the Fourth Amendment. Therefore, the security scanner should not be used as an excuse to open Mr. Yourprop’s briefcase for such attempts would be illegal. Any potential of digital evidence should be collected in a constitutional manner so that it may be admissible in a court of law (Amar, 2012).

References

Amar, A. R. (2012, April 1). Fourth Amendment First Principles. Harvard Law Review, pp. 757-819.

Beazley, H., & Boenisch, J. (2011). Continuity management: preserving corporate knowledge and productivity when employees leave (3rd ed.). New Jersey: John Wiley & Sons.

Danzig, M. (2012, June 14). Protecting your Business- When Company employees leave and Compete. Retrieved April 1, 2015, from Corporate Compliance Insights: http://www.corporatecomplianceinsights.com/protecting-your-business-when-company-employees-leave-and-compete/

Merges, R. (2010). Contracting into liability rules: Intellectual property rights and collective rights organizations. California Law Review, 14(4), 1293-1393.