Legal Question in Technology Law in Florida

Re: Who owns the source code?

Simple? Not hardly!

The code is a work for hire as to the other employees. If the facts you give are correct, the non-employee has an undivided interest in the whole. The non-employee could use the joint work and could license it to others. The royalty must be shared with the joint inventors, so that whatever the new company would pay must be divided among all the authors, meaning the non-employee probably ends up with not much. There are other complicating factors. If this was a trade secret, and it undoubtedly was, and the non-employee received it in confidence, the trade secrecy obligations will trump to copyright interest of the non-employee and the non-employee will not be free to disclose it until it becomes public. If the code is important enought for you to be asking, it may be important enough for the former employer to be asking a copyight & trademark lawyer to go after the non-employee and the new employer if used. The new employer may not think too highly of the non-employee turncoat if use of the code gets the new employer in legal trouble, or if it is the employer asking, the employer should tread very carefully in this quicksand. The damages for trade secret misappropriation are quite severe...much like patent damages. There is another aspect, and that is that the non-employee probably has a copyright interest that requires the employer to provide compensation for use of the jointly owned work. The compensation may have already been paid, so it depends on the specific facts. That's all you get for free. Call if you need more than you get for free.

Bottom Line: The former employer probably has control over use of the code because it is a trade secret even though the non-employee may have some copyright interest.