Tech Site Sues Ex-Employee, Claiming Rights To His Twitter Account 267
nonprofiteer writes "Noah Kravitz worked as a mobile phone reviewer for a tech website called Phonedog for four and a half years. While there, he started a Twitter account (of his own volition) with the handle @PhoneDog_Noah to tweet his stories and videos for the site as well as personal stuff about sports, food, music, etc. When he left Phonedog, he had approximately 17,000 followers and changed his Twitter handle to @noahkravitz. This summer, Phonedog started barking that it wanted the Twitter account back, and sued Kravitz, valuing the account at $340,000 (!), or $2.50 per follower per month. Kravitz claims the Twitter account was his own property. A California judge ruled that the case can proceed and theoretically go to trial. Meanwhile, Kravitz continues to tweet."
It was part of his job (Score:4, Interesting)
This seems like a really straight-forward case. The Twitter account belongs to Phonedog.
Re:It was part of his job (Score:5, Insightful)
It doesn't sound like the company asked him to do it.
Sounds more like he setup a personal account and was just giving his own articles some free PR.
Putting PhoneDog in the username is pretty stupid though and will definitely hurt his case.
Re:It was part of his job (Score:5, Insightful)
Re:It was part of his job (Score:5, Insightful)
He used the company's resources and time to make it,...
If you do something at your work time,...
Would you mind providing a citation for this? I didn't see anything in TFA that indicated he used any company time or resources to maintain the (arguably his) blog.
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Re:It was part of his job (Score:5, Insightful)
and if its related to your job but done out side of work time they own it too
No... they own copyright to content you produce related to your job, as "work for hire". They don't own assets you create outside of work that you use in a manner related to your job.
For example... if your job entails visiting clients; your company doesn't suddenly own your personal car, when you use it one day to drive to a client's office. If you use your personal e-mail account to contact a prospect that you happen to be friends with, or you provide your e-mail address or personal phone number as contact details for a client, and you wind up signing them up... your company doesn't suddenly own your e-mail account or your home phone number.
They own the work that you provided to them, for example, the sale. They don't own personal property leveraged to do so.
So... they could own the copyright to all the twitter posts, but it's still your account. What they could do is demand you take down all the twitter posts from your account that contain their intellectual property.
Also.... you don't own the Twitter account in the first place, actually, Twitter owns it their ToS [twitter.com] says so: All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Twitter and its licensors..
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He used the company's resources and time to make it,...
If you do something at your work time,...
Would you mind providing a citation for this? I didn't see anything in TFA that indicated he used any company time or resources to maintain the (arguably his) blog.
He created a twitter account with the company's name as the twitter account's prefix, and blogged on it as part of his job with said company, in great part, while creating/blogging about phone reviews (again, for publication in said company.) As an employee or billable consultant, the amount of time to create said work/employer-related content, that is billable time, ergo company's resources.
Not sure what is there to argue beyo
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The question then is did he use his twitter account to draw people to the company web site or did he use the company web site to draw people to his twitter account. So the company might be able to lay claim to it but not for free ie the company might have just shot itself in the foot. They can have the account as long as they pay their declared value for it plus any additional value added to it since.
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used company's name as part of his handle and it definitely was something directly linked to Phonedog
But when he left, he changed the handle's name. So why should they still have a claim to it? Why can't he just create a brand new handle called @PhoneDog_Noah and give _that_ to them?
Or the much more convoluted though perhaps more legal solution:
1) Create brand new handle, maybe name it @noahkravitz2.
2) Use new handle exclusively, while simply posting "This account will soon be taken by asshats*. Please unfollow and use @noahkravitz2." to the old handle.
3) After a week or two, rename @noahkravitz ba
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Except he didn't create anything... Twitter did. And as such, the case law is completely batshit. Bottom line: employers should a) have a written policy that ratifies common sense and b) don't be a dick. Those two things prevent a lot of problems.
Re:It was part of his job (Score:4, Insightful)
I don't know how you use company resources to make a twitter account, and there's no real indication that he used company time either. He used their name as a way to distinguish himself from the guy who had @Noah already, but this was in the early days of twitter so there was no company policy on twitter. There was basically "no rule against it". There's a difference beween saying "personal projects" belong to your employer, and saying "Everything you do belongs to us". If he put his employers name in his Facebook profile, would they have rights to that?
I think part of your perspective is that you're assuming the reason he got so many followers is because he presented himself as "Phonedog Noah" instead of just "Noah Kravitz" and therefore attracted people looking for "Phonedog". However this doesn't seem to be the case, as he's added another 4,000 followers since leaving Phonedog and changing his twitter handle. By all accounts, this is his personal twitter account and the only thing linking it to his former employer is simply the fact that he identified with them enough to have originally included their name as part of his handle.
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I worked for a software dev company before, quite well known, and in my contract was a specific clause stating *anything* I produced, no matter where and when, would be considered the intellectual property of the company.
You can often ask for specific exclusions. We have a web developer who writes children's picture books in her spare time. When she applied she asked for an specific exception for these to be put in her contract. Since there was no overlap with her work for the company they did it without question.
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Re:It was part of his job (Score:4, Informative)
And you actually signed this agreement ???!
These kind of contracts are pretty common, either you sign it or no job. It sucks, but who's going to make their family starve and become a martyr for the cause? Drug tests, background checks, contracts, all of the big companies do it. As long as the corporations are in power you'll have to just deal with it, for now.
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No, it's actually not common. Agreements that anything you make at work, or substantially related to work belongs to the company are common. Anything more than that is not common, and is the company trying to fuck you over. Refuse to sign without changing that clause and they will cave. If they don't, you don't want to work there anyway.
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Draw a clear line between your work life and your personal life... don't ever blur the line...
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Re:It was part of his job (Score:5, Informative)
RTFA: it was not part of his job. He removed the name of the company from the handle when he left. That's all there is to it.
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His job was to bring customers to the site to read his reviews and articles, the twitter account was a tool used doubtlessly during office hours as part of that job. If I'm told to do something and I make some other software on company time to help with the assigned job, the helper application still belongs to my employer, even if I remove their name from it when I leave.
Re:It was part of his job (Score:5, Insightful)
By that logic a company could claim the car you use to get to work, or your laptop you use in your workplace. He didn't develop anything.
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He didn't develop anything.
He developed business relationships with those followers, on his work time.
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He developed business relationships with those followers, on his work time .
That is an assumption, and not a fact given in the article.
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Did he make the account on his own laptop? Or the companies?
Did he use it on his own laptop, on his own time? Or did he use it on the companies laptop, on company time, to promote company product using a company internet connection?
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He used it on company computers on company time to promote company products with the company internet.
[Citation Needed]
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His job was to bring customers to the site to read his reviews and articles, the twitter account was a tool used doubtlessly during office hours as part of that job .
That is an assumption, and not a proven fact. The article states that the twitter account was used for personal blogging as well as self-promotion of the articles he wrote. The entire point of the court case is to decide whether or not it was a business tool or a personal communication that included references to his work.
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"http://twitter.com/#!/dinabennissan"
Oh look, it has Nissan in her name, she *MUST* obviously work for Nissan.
You have no logic capacity, do you?
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His job was to bring customers to the site to read his reviews and articles, the twitter account was a tool used doubtlessly during office hours as part of that job.
That's really what the issue revolves around, IMO. If he spent company time building up his twitter following the account really should belong to his employer. If not, then it's his. The problem will undoubtedly be he spent both company and personal time on the twitter account, so then it probably boils down to how the company paid him.
Re:It was part of his job (Score:5, Insightful)
The company never took any responsibility or control over the account. He made a personal account and tweeted what he felt like, which was sometimes work related. The people weren't signing up to follow the company, they were signing up to follow him.
"If person would wanted to have own personal twitter, you should..."
If a company wants an official twitter, then they can make one instead of claiming a personal one that they never managed and was only tangentially related to their business.
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I keep a close eye on all company assets.
The company I work for has Twitter, Facebook, Myspace, Google+ and a Website.
We do a lot of promoting.
All work PR is done through company owned channels.
Hell. Just last week I had some shit head yelling at me because he does not want to have to use company email to converse with vendors for the company.
I made him.
If they did not make it and control it then fuck em.
Your employer doesn't own everything (Score:3)
... related to your job. For example he doesn't own the skills you gain working for him. Nor does he own the personal relationships you develop with customers. He might in some jurisdictions be able to contractually restrict what you do with those things after you part ways, but if he doesn't think to do that in advance he's out of luck.
Now let's look at the company's actual claims. They're claiming the guy's follower list and password are trade secrets.
OK, so how about the follower list? Of course if you w
Re:It was part of his job (Score:5, Insightful)
He even used Phonedog in his original handle, which further proves that this is "official." If it weren't somehow official, his employer would have claimed trademark violation on his Twitter account while he was still employed.
I think this is a case of an ex-employee who didn't realize he was putting in free overtime.
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> He even used Phonedog in his original handle, which further proves that this is "official."
Official what? It "proves" nothing.
I create a Slashdot_Jack9 twitter, Slashdot has no rights to it. The fact that I work/do not work for Slashdot is irrelevant.
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He said further proves.
How do you 'further prove' something which has yet to be proven?
Re:It was part of his job (Score:4, Insightful)
You are coming to a conclusion backwards. Because he had a twitter account with the company's name in it and they did not pursue a trademark violation, this does not mean that he did it with their permission. How do you reach this conclusion when it could be Phonedog did not protect their mark and he was improperly using their mark. If anything, I would be afraid if I was phonedog as being seen as complacent about enforcing their marks.It seems their may be a gray area here.
However, may be like software development, if his tweeting was done with company resources, it may indeed be Phonedog's to keep.
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After he was no longer an employee, they started defending it as theirs. I don't know how soon after he left they started defending the account. From TFA it sounds like it was under a year. That seems fairly speedy. And, they might have politely asked f
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This seems like a really straight-forward case.
No, no it isn't. You are wrong.
--
BMO
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He also created a handle which included the company's name in it, which seems like it might be relevant. Im not sure what the law says about it, but seems like it cant help his case....
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Lots of people do this. They're not asked by their company to include the company's name, but they do it because it's a way of identifying someone. Some people just identify with their place of work.
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If he created and maintained it on company time, then there's probably a good argument for that. But if it was done entirely on his own time, and he wasn't being compensated for it, then good luck, you'd better be able to prove it was a gift.
Just because you're doing something that someone else feels they are benefiting from doesn't mean they own it. They have to ask for it, and they have to give you something in return for i
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If he created and maintained it on company time, then there's probably a good argument for that. But if it was done entirely on his own time, and he wasn't being compensated for it, then good luck, you'd better be able to prove it was a gift.
The terms of his employment will likely play a significant role in this case. Was he salaried? Was he hourly? Was he paid per submission? Did he work from company premises/using company equipment or was he working from home/using his own equipment?
He muddied the waters by using the company name in his twitter account name, but he did remove the company name after leaving the company.
He used the account for both personal, and business related purposes.
The very nature of his work (writing opinions, and co
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So does your rolodex belong to your company? What about your linked-in profile? Where is the line drawn?
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If it was done as part of his job, then I am assuming there is an audit trail of some kind? Maybe an email or memo indicating that he should create a Twitter account, what to name it, how often he would update it, what he could say or should avoid saying. They should also have made clear that if he were to leave the company then he would have to relinquish control of the Twitter account back to the company.
Unless he signed an agreement indicating any social media account created while in the employment of t
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I can't believe (most of us) are arguing about this like it is physical property,
There is no scarcity here. The Twitter account could be magically duplicated and I bet Twitter would be willing to do it if both parties agreed to it.
If were gonna throw this in the courtroom then won't it be proper for 17,000 followers to have a say in this?
Let's not open that can of worms. Not today at least. I'm tired. ;(
Re:It was part of his job (Score:5, Insightful)
That's not the way things work, usually. If he cultivated his followers and created content using company resources (time, equipment, etc.) then the company probably has some right to it. But, it may partially depend on his employment agreement. His employment agreement probably says what it is they own in the context of content he created on the job.
This is the reason that smart people don't use company resources to do creative things lest they be owned by their employer.
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if his job didn't require him to create the account then it is not their property....
Except that by using the trademarked company name in the handle he was presenting himself as some sort of representative of the company. Doing so enhanced his credibility and the followers were obtained in this context. I think this tips the balance in favor of the company retaining the account and its followers and he needing to have his personal followers to switch to his personal account.
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If you've ever worked for a tech company, there's paperwork that you sign on your first day that says otherwise. I can only imagine this company had the same type of agreement.
Re:It was part of his job (Score:4, Informative)
We don't know what his employment that he signed when he started said, so everything here is assumption.
Every company I've worked for (except my first job, round table) had a very clear agreement in the employment contract that anything I made during work hours belonged to the company, and any inventions I made outside outside of work hours had pretty strong limitations (it couldn't be, at all, related to my job). If he signed something even similar to all of the contracts I've signed, the account belongs to them.
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What Phonedog should have done is created it's own official Twitter account for official tweets only and directed Noah to point his followers to also follow the official channel. Then they would have clearly defined what is company prope
Don't ever mix personal and employer projects (Score:5, Insightful)
Don't ever mix personal and employer projects, ever.
Especially don't use your employer's name or trademarks in your personal projects.
Hell in some states, depending on your terms of employment, even your personal projects can be seized by the company.
Re:Don't ever mix personal and employer projects (Score:5, Insightful)
Another rule is to not do anything personal on company resources. It is considered theirs because you did it on their resources which they consider their time too which means you did whatever for the benefit of them.
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If I hadn't posted several times in this discussion, I would mod you up.
Keeping business and personal matters separate seems simple, but can be difficult.
Oh, the irony ... (Score:5, Interesting)
If they win, it may damage their Twitter reputation more than just leaving it alone.
17,000 followers can spam a Twitter account pretty heavily.
Re:Oh, the irony ... (Score:5, Insightful)
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If Phonedog wins, I predict that 100% of the followers leave quickly with most of them following whatever new account he might set up.
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Companies that do not act this poorly will be rewarded with more money; doubling the punishment for those who do act this poorly
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Followers isn't anywhere remotely close to being related to active followers.
Easy solution (Score:5, Insightful)
Re:Easy solution (Score:5, Interesting)
Sounds easy and cute, but if the court rules that the twitter account in fact did belong to Phonedog, and in fact was worth $2.50 per follower, could the guy be sued for deliberately wrecking the value of the account?
IANAL, but I'd be interested to hear a lawyer's comments: if you're in possession of some asset and are sued for ownership, and you subsequently and intentionally ruin the value of that asset, won't the court take a pretty dim view?
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In the scenario presented, he's returning the handle and presumably the password to the company and they can do with it as they see fit. This is exactly what should have been done. Honestly, if the person has any right to keep his account, it's that work knowingly allowed him to have a popular twitter feed that mixed personal and work topics. If he's going to defend this, that will be his defense. My thoughts are that he's going to lose anyway.
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Nothing a lawyer argues would surprise me anymore, but I would argue that if the mass exodus happens, then the account never held any value for Phonedog in the first place, they were interested in the person. Meanwhile, if that's the case, why would a former employer have a right to continue profiting from association with him after they stop paying?
What would happen if he simply stopped tweeting on that account? I imagine it would end up decaying away fairly quickly.
Re:Easy solution (Score:4, Interesting)
How would that be deliberately wrecking the value of the account?
He would be announcing that he is leaving the company (true). He would be announcing that phonedog would be taking over ownership of the account (true). He would be saying he would be opening a personal account (true), and finally, and most importantly, he would not be compelling anybody to follow him... simply advising them that *IF* they wished to continue to do so, they would need to follow his new account, since he would no longer be personally commanding that one. He would not be deliberately sabotaging anything... and people who want to follow the company could continue to follow the phonedog account.
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If the court rules the account belongs to Phonegap, that could be viewed as damaging their possession.
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91 chars:
@PhoneDog reposessed this old account. Follow @NoahKravitz if you want to read more by me.
126 chars:
@PhoneDog reposessed this old account. Follow @NoahKravitz if you want to read more by me. Keep following this if you prefer.
Both of those would convey something similar, and stay under 140 characters.
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I'm glad to see why one should start a fresh account when the previous had work implications.
Why PhoneDog Deserves Bad PR For This (Score:3)
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> This is clearly a personal account
Except for the fact that, you know, it had the company name on it.
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Please Return to Your Slave Labor Cell by 7am (Score:5, Funny)
You are aware your DNA has been copyrighted and patented by Humans-Are-US. As such all your labor and product are derivative works and must be produced and immediately stored directly in our Patented Human DNA production facilites.
As such we require your labor services by tomorrow at 7am. Please report to your Personal DNA Labor Slave Cell by 7am. Irregularities will result in immedia removal of all temporary-credit and life sustainment system access rights.
Thank you
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Contract (Score:2)
If the company has a contract stating that the account is theirs, then it is. If they don't then on what grounds are they claiming it?
So move to another account (Score:2)
Let the case proceed, start moving his "followers" to another account (PhonePhrog or something), and then when he's got them moved, give them the twitter account.
Let them have the handle (Score:4, Insightful)
They have the right to the handle with PhoneDog in it. Let them have it. But he doesn't use that handle any more; they don't have a right to his personal account.
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Might have more to do with his new gig. (Score:2)
Though I can't tell if the TechnoBuffalo [technobuffalo.com] gig is new, or was a side job while he was still at PhoneDog, but it looks like it was not a side job [mobileindustryreview.com].
And Noah was once Editor-in-Chief at PhoneDog. I think they miss him. These divorces are often messy.
Why the Hubbub... (Score:2)
This is his personal site. He wasn't paid to produce it, he wasn't subsidized by his employer, he wasn't told to do this as part of his job or that the company expected it to be turned over to them when he left. This is just more Corporate grabbing and lawyers marking territory by pissing on past and present employees.
He changed the feed handle to his name, The company has every right to start a new "@PhoneDog" if they like. If they continue to press, do the following.
Better yet;
1. Create a completely new
Judging from these posts... (Score:2)
Seriously though, the company did not create the account: The employee did. As long as he's not trying to slander, libel or defame Phonedog, they don't really have a case. If you think I'm somehow making this up, go back and look at court case documents involving this kind of stuff. Asking for a password to something that no longer reflects the company, or was never created by the company in first place is laughable, and at best, shak
Twitter Terms of Service (Score:5, Insightful)
Twitter clearly indicates in their ToS that the service can only be used if you can enter a binding contractual relationship with Twitter.
Unless the company gave him the ability to enter a contract with Twitter on the company's behalf, then the account is either in violation of the ToS, or it is personal.
Twitter gives the company various options for dealing with an account that infringes their marks.
Re:Twitter Terms of Service (Score:5, Insightful)
If only I had mod points. Why does nobody read the terms of service? All these "corporate" Twitter/Facebook/whatever accounts that these corporations think they own are in *complete* violation of the terms of service of those very sites. The only way this company could keep the account legally in the first place is if they also keep the employee who goes with it.
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Because he isn't Newt Gingrich and those might actually be real twitter followers and they aren't stupid enough to fall for that. They want the real account he used for company tweets, the one with the thousands of followers.
Why doesn't he just make a new twitter account and announce it on the old one? Along with his leaving his company and their litigious actions towards him and just walk away from that shit.
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just go make the twitter handle on a new account and give them the password...
Its not that simple. He attracted the followers while using the trademarked company name in the handle. The new account should probably be his personal account and those who want to truly follow him can switch. The mistake, incorporating the trademarked company name in the handle, was his so he should probably deal with the inconvenience of having followers switch over.
:-)
Of course as someone using a business account to post perhaps I am biased.
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because he wants his followers. Otherwise, he would be nobody and have to work real hard to have his name recognized. May be not, but that is what an individual without the resources of a company would have to do to help build their reputation so that 17,000 people followed them.
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Better yet, tweet your new account, dump the old one, before things get hairy. It'll be interesting to see how many followers would actually make the jump...I'm guessing 1% range.
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Technically a company should not let you bring anything of yours that benefits the company or they are stupid. For one, most non-competes try to claim gray matter that has been imprinted with company proprietary information, but thankfully I get to keep that. Do not let people use their own resources at your company unless they are a contractor. And I am not sure about your assertion that because you did company work on your resource, that they cannot demand to inspect your computer. That seems pretty risky
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"If they care mostly about his professional identity then they'll stick to the old account."
Or, if they're completely inactive...which a majority probably are.
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Also simple, and arguably better, since it actually answers the underlying question of "owning" the followers:
Tweet "I have moved to @mynewhandle, and may soon lose control of this account to my former employer's spam-loving marketing department."
Then let the fans decide.