My question was precipitated by the Phonedog.com lawsuit in which an employer claims the employer owns the Twitter account started by an ex-employee while still an employee.
The Wall Street Journal’s Joe Palazzolo reports before we had an employer’s claim to Twitter followers, we had a company claiming the right to a fired employee’s LinkedIn account and the ex-employee’s connections. Upon being sued by the ex-employee to get her account back, the company filed a counterclaim alleging, among other things, that the connections were trade secrets.
The defendants claim that Dr. Eagle’s LinkedIn connections belong to them and that Dr. Eagle effectively stole those connections. The defendants also claim that Dr. Eagle now reaps the benefit of the time and effort that the defendants previously put into maintaining her LinkedIn account. (The new owners contend that former employees of Edcomm were required to utilize an Edcomm template when creating LinkedIn accounts, use an Edcomm email address, and permit Edcomm to monitor their Linkedin pages).
Meyer goes on to explain why the court in the LinkedIn case and Meyer see no protectable trade secret claim.
To qualify as a trade secret, the subject information must not be generally known in the wider business community or capable of being easily derived from public information. Put another way, trade secrets must be particular secrets of the complaining employer and not general secrets of the trade in which the employer is engaged.
The court held here that LinkedIn account connections do not qualify as trade secrets, because they are generally known in the wider business community or are capable of being easily derived from public information. Think about how many 1st degree connections Dr. Eagle may have on LinkedIn with employees at Edcomm. Each of those 1st degree connections can see all of Dr. Eagle’s other 1st degree connections. Heck, I went on to Dr. Eagle’s LinkedIn page and could see that she was a 2nd degree contact of mine. Consequently, I could determine our common connection.
The court dismissed each of the other about 10 claims brought by the company, other than the claim the account was in effect the work product of the company as the company had other employees do the work in creating the account and getting the contacts. Based on the language of the decision, I give the company little chance of succeeding on that remaining claim.
Though it may be possible via contract for a law firm to take ownership of a lawyer’s LinkedIn contacts created while employed at the firm, I see that as a tough case. It would be akin to the firm saying we have the right, exclusive to you as the departing attorney, to network with and do the work of all people and companies you’ve met while employed at the firm.
LinkedIn is even more personal in nature than Twitter. In some cases, such as in the Phonedog.com lawsuit, a Twitter account and handle will include the name of the company, in addition to the name an individual. In which case an ex-employee could move on and create a Twitter account in their own name.
But what does an ex-employee do in the case of LinkedIn? Stop using their name? Create a LinkedIn account under their name for a period of years, then leave it up as an ex-employee, and open up a new LinkedIn account for the years they’re at their new job.
As I said, when I blogged about the Twitter/Phonedog.com case, a law firm making claim to an ex-employees social media connections is extremely shortsighted.
- Law firms ought to be encouraging their attorneys and other professionals to use social networks for business development, not discouraging them from doing so like this would.
- Claiming ownership of your employee’s social networking accounts and connections will only make it difficult to recruit recent grads and lateral hires. Such a practice screams of lack of innovation and lack of trust.
- Social networks are the town squares and coffee shops of years gone by. Social networks are by their definition where lawyers network socially today.
Though any claim by a law firm to an attorney’s LinkedIn account and connections is likely to be unsuccessful as well as be subject to lot of public ridicule, law firms have done dumber things.