City Worker Fails in Software Copyright Bid

(CN) - An analyst working for the city of Wilmington, Del., has no copyright claims to a computer software program that he developed at home, on his own time, because he created the program for the city's use and installed the program on the city's computer for testing and feedback, the 3rd Circuit ruled.

Vietnamese city worker Le T. Le was employed with the Information Technologies Department in Wilmington and filed for copyright infringement and employment discrimination when he was fired soon after completing development for an Instant Ticketing program to assist Wilmington's Department of Licenses and Inspections in tracking traffic citations.

Le then appealed the District Court's initial decisions to deny him additional discovery, uphold summary judgment grants regarding copyright and discrimination claims and refusal to vitiate the attorney-client privilege regarding a former employee of Wilmington's Law Department.

In reviewing the case history, a three-judge appellate panel noted that Le had removed the source code of the program from Wilmington's network server without permission from his supervisor, a move that rendered the Instant Ticketing tool useless, and that in his testimony Le stated that he believed the computer program belonged to him.

Le claimed he was suspended from his job and threatened with prosecution if he refused to reinstall the program, then fired after he completed reinstallation.

Le also claimed that his department, the Network Division, was eliminated because of his race and the race of his co-workers in the division, who were both black. He said his supervisor made derogatory remarks about how difficult is was to understand his accent as well as other racially insensitive remarks.

The panel found that there was "no genuine dispute of material fact regarding whether the Instant Ticketing program and source code qualify as a work made for hire," despite Le's claims that he created the program on his own time and outside of his job description, he still used Wilmington's resources and tools in order to complete a program that was specifically created for Wilmington's use.

Even though in 2007 Le filed for copyright certification, the panel noted that the city sent letters to Le that same year which "emphasized that Le had no copyright in the source code as a work made for hire and that the source code was its property."

Wilmington expressed in the letters that it would not spend time and money to prove that it was not transferring ownership, and the panel further affirmed judgment on copyright claims because "Wilmington's disinterest in spending money to contest Le's claims does not qualify as a manifestation of its intent to transfer the copyright itself."

Le contended the record had established a prima facie case for employment discrimination, since Wilmington replaced its Network Division with an all-white team from an independent contractor, but the panel disagreed. The judges ruled that since the new team was selected by the independent contractor, not Wilmington, and since there were performance issues proven to exist in the Network Division prior to its replacement, Le failed to establish that the stated reasons for his termination were pretext for discrimination.

The panel found that Le also failed to properly distinguish his allegations to be in alignment with at-will employment doctrine, and ruled that further discovery document identification was unnecessary.

Le's final claim -- that a former lawyer from Wilmington's legal department improperly invoked client-attorney privilege regarding information regarding the letters written by Wilmington to Le that denied him ownership rights -- was also denied.

"Here," Circuit Judge Joseph A. Greenaway Jr. wrote, "the letters themselves were the result of communications between a client and lawyer. Any waiver of the attorney-client privilege must be invoked by the client. While Wilmington shared the information and views stated in the letter, it did not share the privileged information requested during the deposition... there fore, Wilmington engaged in no activity from which one could infer a waiver of the privilege."

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