Night Owl 9/Night Owl CD-ROM (NOPV9) (Night Owl Publisher) (1993).ISO/006a/bbslaw10.zip/DE-LAW.STA

Text File | 1993-03-21 | 14KB | 315 lines

/* Delaware has an interesting section in its "Labor Code", 19
Delaware Statutes Section 805, related to ownership of employee
inventions made off the job. Watch out for the "escape clause."
*/

SECTION 18-805. Employee's Right to Certain Inventions.

    Any provision in an employment agreement which provides that
the employee shall assign or offer to assign any of his rights in
an invention to his employer shall not apply to an invention that
they employee developed entirely on his own time without using
the employer's equipment, supplies, facility or trade secret
information, except for those inventions that; (i) relate to the
employer's business or actual or demonstrably anticipated
research or development, or (ii) result from any work performed
by the employer for the employer.

/* Folks, there is a huge exception here. It seems that all
inventions which relate to the business (what is that,
computers???? or computer telecommunications???) can be required to
be assigned. The key question here is how broadly will the term
"relate to the employer's business" be construed. If it is
broadly construed, this section becomes meaningless. */

To the extent a provision in an employment agreement purports to
apply to the type of invention described, it is against the
public policy  of this State and is unenforceable. An employer
may not require a provision of an employment agreement made
unenforceable under this section as a condition of employment or
continued employment.

/* Here's Delaware's Computer Crimes Law, Title 11, Section 931,
adopted in   */


SECTION 931. Definitions. As used in this subpart:

     (1) "Access" means to instruct, communicate with, store data
in or retrieve data from, a computer, computer system or computer
network.

     (2) "Computer" means a programmable, electronic device
capable of accepting and processing data.

     (3) "Computer network" means:

          a. A set of related devices connected to a computer by
communications facilities;

          b. A complex of two or more computers, including
related devices, connected by communications facilities; or

          c. The communications transmission facilities and
devices used to interconnect computational equipment, along with
control mechanisms associated thereto.

     (4) "Computer program" means a set of instructions,
statements or related data that, in actual or modified form, is
capable of causing a computer or computer system to perform
specified functions.

     (5) "Computer services" includes, but is not limited to,
computer access, data processing and data storage.

     (6) "Computer software" means 1 or more computer programs,
existing in any form, or any associated operational procedures,
manuals or other documentation,

     (7) "Computer system" means a computer, its software,
related equipment and communications facilities, if any, and
includes computer networks.

     (8) "Data" means information of any kind in any form,
including computer software.

     (9) "Person" means a natural person, corporation, trust,
partnership, incorporated or unincorporated association and any
other legal or governmental entity, including any state or
municipal entity or public official.

/* This means that if the State of Delaware copies a copyright
program without authority, it is guilty of computer crime.
Compare this with the result discussed in the tutorial on state's
current general immunity from copyright infringement claims. */

     (10) "Private personal data" means data concerning a natural
person which a reasonable person would want to keep private and
which is protectable under law.

/* This is the OBJECTIVE standard for personal data. In other
words, no matter how much you may subjectively want to keep
something private, it is not private unless the community as a
whole, a reasonable person, would agree that it is something that
someone would want to keep private. */.

SECTION 932 Unauthorized access.

     A person is guilty of the computer crime of unauthorized
access to a computer system when, knowing that he is not
authorized to do so, he accesses or causes to be accessed any
computer system without authorization.

SECTION 933 Theft of computer services

     A person is guilty of the computer crime of theft of
computer services when he accesses or causes to be accessed or
otherwise uses or causes to be used a computer system with the
intent to obtain unauthorized computer services,  computer
software or data.

SECTION 934 Interruption of computer services

     A person is guilty of the computer crime of interruption of
computer services when that person, without authorization,
intentionally or recklessly disrupts or degrades or causes the
disruption or degradation of computer services or denies or
causes the denial of computer services to an authorized user of
the computer system.

SECTION 935 Misuse of computer system information

     A person is guilty  of the computer crime of misuse of
computer system information when:

          (1) As a result of his accessing or causing to be
accessed a computer system, he intentionally makes or causes to
be made an unauthorized display, use, disclosure or copy, in any
form, of data residing in, communicated by a computer system;

      (2) That person intentionally or recklessly and without
authorization:

               a. Alters, deletes, tampers with, damages,
    destroys or takes data intended for use by a computer system,
    whether residing or external to a computer system; or

               b. Interrupts or adds data to data residing within
    a computer system;

    (3) That person knowingly receives or retains data obtained
    in violation of subdivision (1) or (2) of this section; or

     (4) that person uses or discloses any data which that person
    knows or believes was obtained in violation of subdivision
    (1) or (2) of this section.

SECTION 936 Destruction of computer equipment

     A person is guilty of the computer crime of destruction of
computer equipment when that person, without authorization,
intentionally or recklessly tampers with, takes, transfers,
conceals, alters, damages or destroys any equipment used in a
computer system or recklessly causes any of the foregoing to
occur.

SECTION 937 Penalties

     (a) A person committing any of the crimes described in
sections 932-936 of this title is guilty in the first degree when
the damage to or the value of the property of computer services
affected exceeds $ 10,000.00.
     Computer crime in the first degree is a class B felony.

     (b) A person committing any of the crimes described in
sections 932-936 of this title is guilty in the second degree
when the damage to or the value of the property or computer
services affected exceeds $ 5,000.00.

     (c) A person committing any of the crimes described in
sections 932-936 of this title is guilty in the third degree
when:

     (1) The damage to or value of the property or computer
services affected exceeds $ 1,000; or

     (2) The person engages in conduct which creates a risk of
serious physical injury to another person.

     Computer crime in the third degree is a class D felony.

     (d) A person committing any of the crimes described in
sections 932-936 of this title is guilty in the fourth degree
when the damage to or the value of the property or computer
services affected exceeds $ 500.

     Computer crime in the fourth degree is a class B
misdemeanor.

     (e) A person committing any of the crimes described in
paragraphs 932-936 of this title is guilty in the fifth degree
when the damage to or value of the property or computer services,
if any, is $ 500 or less.

     Computer crime in the fifth degree is a Class B misdemeanor.

     (f) Any person gaining money, property [,]services, or other
consideration through the commission of any offense under this
subpart, upon conviction, in lieu of having a fine imposed, may
be sentenced by the court to pay an amount, fixed by the court,
not to exceed double the amount of the defendant's gain from the
commission of such offense. In such case, the court shall make a
finding as to the amount of the defendant's gain from the offense
and, if the record does not contain sufficient evidence to
support such a finding, the court may conduct a hearing upon the
issue. For the purpose of this section, "gain" means the amount
of money or the value of property or computer services or other
consideration derived.

     (g) Amounts included in violations of this subpart committed
pursuant to 1 scheme or course of conduct, whether from the same
person or several persons, may be aggregated in determining the
degree of the crime.

     (h) For the purposes of this subpart, the value of the
property or computer services shall be:

     (1) The market value of the property or computer services at
the time of the violation; or

     (2) If the property or computer services are unrecoverable,
damaged or destroyed as a result of the violation of this
subpart, the cost of reproducing or replacing the property at the
time of the violation.

     When the value of the property or computer  services or
damage thereto cannot be satisfactorily ascertained, the value
shall be deemed to be $250.

Section 938.  Venue

/*venue is the law that determines where cases will be heard.
Blowing up a train occurs at a specific geographical point and so
like most crimes where it happened and where it should be tried
is obvious.  It's not so obvious with computer crimes.*/

     (a)  In any prosecution for any violation of sections 932-
936 of this title, the offense shall be deemed to have been
committed in the place at which the act occurred or in which the
computer system or part thereof involved in the violation was
located.

     (b)    In any prosecution for any violation of sections 932-
936 of this title, based upon more than one act in violation
thereof, the offense shall be deemed to have been committed in
the place at which the act occurred or in which the computer
system or part thereof involved in the violation was located.

     (c)  if any act performed in furtherance of the offenses set
out in sections 932-936 of this title occurs in this state or in
any computer system or part thereof accessed in violation of
sections 932-936 of this title is located in this state  , the
offense shall be deemed to have occurred in this state.

SECTION 939.  Remedies of aggrieved persons.

     (a)  Any aggrieved person who has reason to believe that any
other person has been engaged, is engaged, or is about to engage
in an alleged violation of any provision of sections 932-936 of
this title may bring an action against such person and may apply
to the court of chancery for: (i) An order temporarily or
permanently restraining and enjoining the commencement or
continuance of such act or acts; (ii) an order directing
restitution; or (iii) an order directing the appointment of a
receiver. Subject to making due provisions for the rights of
innocent persons, a receiver shall have the power to sue for,
collect, receive and take into his possession any property which
belongs to the person who is alleged to have violated any
provision of this subpart and which may have been derived by,
been used in or aided in any manner such alleged violation. Such
property shall include goods and chattels, papers, choses in
action, bills, notes and property of every description including
all computer system equipment and data, and including property
with which such property has been commingled if it cannot be
identified in kind because of such commingling. The receiver
shall also have the power to sell, convey and assign all of the
foregoing and hold and dispose of the proceeds thereto under the
direction of the Court. Any person who has suffered damages as a
result of an alleged violation of any provision of Sections 932-
936 of this title, and submits proof to the satisfaction of the
COurt at he has in fact been damaged, may participate with
general creditors in the distribution of the assets to the extent
that he has sustained out-of-pocket losses. The Court shall have
jurisdiction of all questions arising in such proceeding and may
make such orders and judgment therein as may be required.

     (b) The Court may award the relief applied for or such other
relief as it may deem appropriate in equity.

     (c) Independent of or in conjunction with an action under
subsection (a) of this section, any person who suffers any injury
to person, business or property may bring an action for damages
against a person who is alleged to have violated any provisions
of Sections 932-936 of this title. The aggrieved person shall
recover actual damages and damages for unjust enrichment not
taken into account in computing damages for actual loss and
treble damages where there has been a showing of willful and
malicious conduct.

     (d) Proof of pecuniary loss is not required to establish
actual damages in connection with an alleged violation of Section
935 of this title arising from misuse of private personal data.

     (e) In any civil action brought under this section, the
Court shall award to any aggrieved person who prevails reasonable
costs and reasonable attorney's fees.

     (f) The filing of a criminal action against a person is not
a prerequisite to the bringing of a civil action under this
section against such person.

     (g) No civil action under this section may be brought but
within 3 years from the date the alleged violation of Sections
932-936 of this title is discovered or should have been
discovered by the use of reasonable diligence.