Dev loses copyright appeal over ownership of forensic software • The Register

A Briton has lost a tender offer to claim copyright to software he wrote for his employer while being handsomely paid to do so – despite saying he wrote parts of it during his free time.

Michael Penhallurick had his case thrown out by judges at the London Court of Appeal yesterday after his unsuccessful attempt to assert copyright over his Virtual Forensic Computing (VFC) suite in the High Court last year.

The former South Yorkshire police officer claimed VFC was licensed to MD5 Ltd and the company breached that license when it stopped paying him money which he described as license fees, two years after his departure from MD5.

“The subjective intentions of the parties are irrelevant to interpretation,” observed Judge Sir Christopher Floyd. “As a result, it can often happen that the objective construction of an agreement does not align perfectly with the subjective intent of either party.”

So, said Sir Christopher, the words “software developed by MD5 Ltd by yourself and sold as VFC” in a 2008 agreement between the developer and the company legally meant that the copyright in VFC belonged to MD5.

As previously reported, Penhallurick had received 7.5% of VFC’s annual sales, with those payments continuing for two years after his resignation in 2016. MD5 successfully argued in the High Court that the money was paid for continued support rather than for royalties or license fees. The lack of a single clear contract took the dispute to court.

Discussing the mention of a “bonus” in the 2008 agreement, the Court of Appeal judge ruled: “I see no reason why this bonus should not be considered valuable consideration for the agreement to assign copyright in the works vested in the appellant as a result of his continued work until the appellant leaves the employment of the respondent Section 91 of the CDPA 1988 would deal then these copyrights as being devolved to the respondent as of right.

Praising barrister Nicholas Caddick QC’s “ingenious” arguments on behalf of Penhallurick, Sir Christopher dismissed them anyway and ruled in favor of MD5, with the agreement of fellow justices Lord Justice Arnold and Ms Falk.

His Honor Judge Hacon, sitting in the High Court, had previously found that everyone at MD5 knew that Penhallurick was writing VFC for the company, including creating several versions of it and paying him a share of the sales. in compensation for his work.

As we said before: if you are a developer working on something that belongs to you, check your employment contract carefully. Even if you do it mostly in your free time. ®