Referring to Software Engineering in a US state that licenses engineers This is strictly hypothetical for the moment and I will retain qualified legal counsel before making any real-world decisions. This question is only to get a general idea of what to expect. Suppose I live in a state that licenses the practice of professional engineering, and I want to start up an LLC to do freelance computer programming work. Suppose there is in force and effect, as there is in the state of Alabama (not where I live, but my state's statute looks similar - see http://www.bels.alabama.gov/pdf/laws/LawCode-July2014.pdf) a law which stipulates, roughly, the following: In order to safeguard life, health, and property, and to promote the public welfare, the practice of engineering in this state is a learned profession to be practiced and regulated as such, and its practitioners in this state shall be held accountable to the state and members of the public by high professional standards in keeping with the ethics and practices of the other learned professions in this state. It shall be unlawful for any person to practice or offer to practice engineering in this state, as defined by this chapter, or to use in connection with his or her name or otherwise assume, use, or advertise any title or description including, but not limited to, the terms engineer, engineers, engineering, professional engineer, professional engineers, professional engineering, or any modification or derivative thereof, tending to convey the impression that he or she is a professional engineer unless the person has been duly licensed or is exempt from licensure under this chapter. A person whose firm name shall have contained the word “engineer,” “engineers,” or “engineering,” or words of like import, for more than 15 years before September 12, 1966, shall not be prohibited from continuing the use of such word or words in his or her firm name. Suppose that my undergraduate college degree is in Computer Science and the program is regionally accredited and accredited by the ABET-CAC standards before I enrolled and that the program has continuously maintained that accreditation. Suppose further that I received a Master's degree in &quot;Computer Science and Software Engineering&quot; the accreditation status of which w.r.t. ABET is not given. Finally, suppose I have not taken or passed Fundamentals of Engineering (FE) or Principles and Practice of Engineering (PE) exams and have neither applied for nor obtained professional licensure in my current state. Finally, my questions: Can the name of my LLC include the phrases &quot;Software Engineer&quot;, &quot;Software Engineering&quot;, or similar derivations thereof? Can my resume, curriculum vitae, or my advertising or promotional materials accurately report the subjects I studied in college as the subject matter of &quot;Software Engineering&quot;, to the extent that this information is true and accurate? If asked directly by a client, am I even allowed to divulge my area of study accurately, or would it be a violation of the law to claim I had engineering knowledge since I have studied (and practiced) software engineering in the past (for instance, at previous places of work in states which did not have these kinds of limitations, or for corporations which did not offer my services to the general public)? My intuition says that I can't be penalized simply for speaking the truth, but clearly there is some behavior the law is intending to prevent. Would the use of he phrase &quot;Software Engineering&quot;, generally speaking, be a way to skirt these kinds of regulations in states that might typically only think of engineering licensure as applying to, e.g., civil/mechanical/etc. kinds of engineers? Note that until very recently (and perhaps even now) there's not really a realistic option for most practicing software professionals to pass the FE, as it covers topics not typically required of computer science or software engineering students (at least at the time I was in school). EDIT: Follow-up question: Am I even allowed to practice &quot;Software Engineering&quot; in such a state if I call it, for instance, &quot;Computer Programming&quot; or &quot;Software Development&quot; instead? Or is the very activity of practicing something that could be called &quot;engineering&quot; restricted? This is a possibility that also occurred to me but I would find this somewhat harder to believe.
Can the name of my LLC include the phrases "Software Engineer", "Software Engineering", or similar derivations thereof? No. Not based on what you've posted. Go to the definitions to see how engineer is defined. It may be they are talking about actual structural engineers or environmental engineers, where if you're wrong people die. But based on above, you can't use the word engineer unless you're licensed as such. Is there even a license for computer engineer? This seems more like it could be a term of use but not actually descriptive of what you're doing. IDK. You'd have to see the definitions and exceptions. Can my resume, curriculum vitae, or my advertising or promotional materials accurately report the subjects I studied in college as the subject matter of "Software Engineering", to the extent that this information is true and accurate? Yes, your CV is supposed to say what you have done, and learned and especially published (lest it's just a resume), but the answer as far as promotional materials, is NO. This, because you don't post your cv on your ad's and if you put that, you will likely be found to be trying to pose as a licensed professional based on a technicality. If that happens the licensing authority will probably censure you by disallowing a license when your qualify. If asked directly by a client, am I even allowed to divulge my area of study accurately,(of course, but you'd also have to divulge the fact that you are not licensed and cannot act in that capacity) Would it be a violation of the law to claim I had engineering knowledge since I have studied (and practiced) software engineering in the past (for instance, at previous places of work in states which did not have these kinds of limitations, or for corporations which did not offer my services to the general public)? It could be if the person reports that you are soliciting work as an engineer w/out a license. It's like a person who went to law school, passed the bar, but never got sworn in. They cannot solicit business as a lawyer. Unless there is a license for being a computer programer, there is nothing barring you from using that terminology. You could be, that if you look up the definition prior to the statue, that it says something like "for the purposes of this section the term engineer means…", In which case it doesn't even apply to you.
The Organization Does Not Own the Copyright As you were clearly not an employee of the organization, and did not have a specific contract with them, this was not a &quot;work-made-for-hire&quot; (WFH). Therefore, the copyright initially belonged to the author, in this case the programmer, that is you. That being so, it would require a written document to transfer the copyright to another during your lifetime. In future there should be a written agreement in such a case, spelling out just what rights are to be retained by whom. It can save lots of trouble. The organization would have an implied license to use the software. The terms of this would be defined by the conduct of the parties, and might be a matter of dispute. Probably there would be a non-exclusive license without any fee or ending date. Probably there would be no license to distribute to others unless you explicitly grant one. Specific US Laws 17 USC 101 defines a WFH: A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. (emphasis added) 17 USC 201 provides that: (a) Initial Ownership. — Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. (b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. ... (d) Transfer of Ownership.— (d) (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. (d) (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. 17 USC 204 provides that: (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.
Provided you are in one of the 170+ countries signatory to the Berne Convention (the current 10 non-signatories are, exhaustively: Eritrea, Marshall Islands, Nauru, Palau, San Marino, Iran, Iraq, Ethiopia, Somalia, and South Sudan), then copyright comes into existence at the moment a work is fixed in a tangible medium, not when it is published. The initial copyright owner is the author of the work. In cases of employment, the "author" might be the natural person who authored the work, or the corporate person who employed the natural author. To clarify your thinking about registration: copyright registration is a public record of authorship (or copyright ownership). Registration does not create a copyright, but is merely a recording of the copyright that was automatically created at the moment of original authorship. Depending on circumstances and jurisdiction, Alan might have a legitimate claim to copyright on his own work. However, he will be quite hard-pressed to find a convincing theory of law that allows him to publish the unpublished copyrighted work of other people without their permission. This leaves him either to admit defeat -- he cannot possibly own the copyright of his coworkers' code, so he cannot have legally reproduced it -- or else make the baldfaced lie that the code has no other authors other than Alan himself. For your company to disprove such a claim, you may employ sworn testimony of your coworkers, you may employ code analysis to show differing coding styles (suggestive of multiple authors), or you may show code backups or version control history showing the progressive authorship of the work over time by many people. (Sure, a Git history is possible to fake, but a realistic history with feature branches, "whoops, undid the typo in the last commit" messages, etc. would lend significant weight to your company being the original authors.)
Yes and no. [note, the following is all written about US law. In other jurisdictions laws are, of course, different (though usually not drastically so.)] In the US there are (at least) three different bodies of law that might apply to code: copyright, patents, trade secrets. Copyright covers original expression. Anything you write is automatically, immediately protected under copyright. The copyright applies to the code itself, and anything "derived" from that code. It's up to the courts to decide exactly what "derived" means. One case that's long been viewed as a landmark in this area is Gates Rubber v. Bando Chemicals. The Court of Appeals for the tenth Circuit decision includes a section titled: "The Test for Determining Whether the Copyright of a Computer Program Has Been Infringed." Note that you can register a copyright, and that can be worthwhile, such as helping recover some damages you can't otherwise. Patents are quite different from copyrights. Where a copyright covers expression of an idea, a patent covers a specific invention. Rather than being awarded automatically, a patent has to be applied for, and awarded only after the patent office has determined that there's no relevant prior art to prevent it from being awarded. A patent, however, covers things like somebody else independently discovering/inventing what's covered by the patent. A trade secret could (at least theoretically) apply to some process or procedure embodied in the code. A trade secret mostly applies to a situation where (for example) you're trying to form an alliance with some other company, and in the process tell them things you don't tell the general public. If you've identified the fact that what you're telling them is a trade secret, and they then tell a competitor (or the general public, etc.) or more generally use that information in any way other than the originally intended purpose, it could constitute a trade secret violation. As a side-note: patents and copyright fall under federal law, so they're basically uniform nation-wide. Trade secrets mostly fall under state law, so the exact details vary by state. Absent a reason to believe otherwise, I'd guess your interest here is primarily in copyright infringement. The key here would be showing that one piece of code was derived from the other. That is, it specifically would not apply in a case where there were only a limited number of ways of doing something, so anybody who wanted to do that had to use one of those ways. Since this would not indicate actual derivation, it would not indicate copyright violation.
This is commonplace in many jurisdictions across many profession, trades and businesses The authorisation of the register and the amount of any fee (which can be zero) is spelled out in the legislation. As is who is authorised to collect it and maintain the register: sometimes it’s a government authority, sometimes it’s a professional association. Sometimes the title is protected and sometimes it isn’t. Off the cuff, the following is an incomplete list for australia. Some of these are Federally regulated and some are State based. Some of the State based ones are nationally recognised, meaning if you register in one state you are registered in all, and some aren’t. Some states require registration that other states don’t. Architect Engineer Doctor Nurse Physiotherapist Nutritionist Veterinarian Solicitor Barrister Anyone working with children Plumber Drainer Gasfitter Roofer Electrician Waterproofer Builder Real Estate Agent Used Car Dealer Bus driver Truck driver Taxi/ride-share driver Train driver Ship’s master Second-hand goods dealer Security guard Bartender Forklift operator Crane operator Builder’s hoist operator
A noncompete clause is a section of a contract whereby one party agrees not to compete with another party. These agreements are usually (always) limited as to time, geography, and scope. In other words, if you had a dog-walking business in your neighborhood you might like to hire someone to help walk some dogs. You'd like this person to agree not to compete with you. You charge people $10 per walk and you pay this person $5 per walk so you want to stop them from walking your customers' dogs for $7. In order to get the $5 per walk from you, your employees agree to not go into the dog walking business in your neighborhood for one year. Cat-sitting? Fine. Walking dogs in other neighborhoods? Fine. Walking dogs in your neighborhood 12 months and one day after they stop working for you? Fine. The reason for the limitations is that judges throw out agreements which are too restrictive. You could not require that a person agree to never walk a dog ever again. You could not stop a person from from walking a dog anywhere in the world. You could not stop a person from working any job for any of your customers. The laws about restrictiveness are unique to each state so that's why people recommend that you talk to a lawyer. Judges honor the work you've done to build a customer base and will allow you to protect it, but they're not going to let you keep your people from ever working in the same business again. The non compete describes the limits of the protection. You need to make sure that the code that others create for you in your employment is yours. It's always a good idea to get the specifics in writing just in case something wacky happens where it looks like someone other than you might own work created while working on one of your projects. The water gets pretty muddy when people are working on their own time with their own tools, it could be very easy for them to argue that they created a thing for their own use and provided it to you for your limited use but that they otherwise own it. This is not a noncompete. It's an ownership clause, aka an IP clause.
Ideally a specific contract for the limited purpose of the interview would determine this. Such a contract could assign such &quot;test&quot; works to either the prospective employer or to the prospective employee, as the parties choose. In the absence of a specific written agreement (to effect a transfer of copyright, an agreement must be in writing and signed) the copyright on such a work will belong to the prospective employee under 17 USC 201 (a) unless the work counts as a work made for hire. 17 USC 201 reads in relevant part: (a) Initial Ownership.—Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. (b) Works Made for Hire.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. According to 17 USC 101 A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. ... Since we are assuming the absence of a written agreement, only part (1) of this applies. Thus the status of the work depends entirely on whether the programmer is an &quot;employee&quot;. The mere fact that a person recessives compensation does not make that person an employee. For copyright purposes, agency law applies. Specifically: The US Copyright office Circular 09 &quot;Works Made for Hire&quot; states: To help determine who is an employee, the Supreme Court in Community for Creative Non-Violence v. Reed identified factors that make up an “employer-employee” relationship as defined by agency law. The factors fall into three broad categories. Control by the employer over the work. For example, the employer determines how the work is done, has the work done at the employer’s location, and provides equipment or other means to create the work. Control by employer over the employee. For example, the employer controls the employee’s schedule in creating the work, has the right to have the employee perform other assignments, determines the method of payment, or has the right to hire the employee’s assistants. 3 Status and conduct of employer. For example, the employer is in business to produce such works, provides the employee with benefits, or withholds tax from the employee’s payment. These factors are not exhaustive. The Court left unclear which of these factors must be present to establish the employment relationship under the work-for-hire definition. Moreover, it held that supervision or control over creation of the work alone is not controlling. However, all or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise). Examples of works made for hire created in an employment relationship include: A software program created by a staff programmer within the scope of his or her duties at a software firm [Emphasis added] ... The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire. But because no precise standard exists for determining whether a work is made for hire under part 1 of the definition in section 101 of the copyright law, consultation with a lawyer may be advisable. If a work is made for hire, the employer or other person for whom the work was prepared is the author and should be named as the author on the application for copyright registration. Respond “yes” to the question on the application about whether the work is made for hire The Wikipedia article aboutCommunity for Creative Non-Violence v. Reed 490 U.S. 730 (1989) describes the case, in whioh a charity hired a sculptor to produce &quot; statue that depicted the plight of homeless people for a Christmas pageant in Washington DC&quot;. CCNV claimed that the statute's copyright was theirs as a work made for hire (WMFH). Sculptor Reid claimed the copyright as being the author Justice Thurgood Marshall wrote in the majority opinion [Footnotes omitted]: The Copyright Act of 1976 provides that copyright ownership &quot;vests initially in the author or authors of the work.&quot; 17 U.S.C. § 201(a). As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. § 102. The Act carves out an important exception, however, for &quot;works made for hire.&quot; &lt; ... [Page 490 U. S. 740] In the past, when Congress has used the term &quot;employee&quot; without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common law agency doctrine. See, e.g., Kelley v. Southern Pacific Co., 419 U. S. 318, 419 U. S. 322-323 (1974); Baker v. Texas &amp; Pacific R. Co., 359 U. S. 227, 359 U. S. 228 (1959) (per curiam); Robinson v. Baltimore &amp; Ohio R. Co., 237 U. S. 84, 237 U. S. 94 (1915). Nothing in the text of the work for hire provisions indicates that Congress used the words &quot;employee&quot; and &quot;employment&quot; to describe anything other than &quot;the conventional relation of employer and employe.'&quot; Kelley, supra, at 419 U. S. 323, quoting Robinson, supra, at 237 U. S. 94; ... On the contrary, Congress' intent to incorporate the agency law definition is suggested by § 101(1)'s use of the term, &quot;scope of employment,&quot; a widely used term of art in agency law. See Restatement (Second) of Agency § 228 (1958) (hereinafter Restatement). ... We thus agree with the Court of Appeals that the term &quot;employee&quot; should be understood in light of the general common law of agency. ... [Page 490 U. S. 751-2] In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. See Restatement § 220(2) (setting forth a nonexhaustive list of factors relevant to determining whether a hired party is an employee). No one of these factors is determinative. See Ward, 362 U.S. at 362 U. S. 400; Hilton Int'l Co. v. NLRB, 690 F.2d 318, 321 (CA2 1982). Conclusion An applicant being given a &quot;test project&quot; as part of an employment interview is probably not an employee under agency law. Thus the work is not a WMFH, an, in the absence of a written agreement to assign the work created as part of the test to the prospective employer, the copyright would belong to the prospective employee. I have not found a case specifically relating to this interview fact pattern, and it could be that a court would rule otherwise in this specific pattern.
This is all outlined at Terms of Service - Stack Exchange When you ask a question, and/or comment on or answer a question, or otherwise participate on an SE site, you license your content to SE. You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license. In turn, (emphasis mine) Subscriber acknowledges that Stack Exchange has no control over, and no duty to take any action regarding: which users gains access to the Network; which Content Subscriber accesses via the Network; what effects the Content may have on Subscriber; how Subscriber may interpret or use the Content; or what actions Subscriber may take as a result of having been exposed to the Content. Much of the Content of the Network is provided by and is the responsibility of the user or subscriber who posted the Content. Stack Exchange does not monitor the Content of the Network and takes no responsibility for such Content. Subscriber releases Stack Exchange from all liability for Subscriber having acquired or not acquired Content through the Network. ... This doesn't mean someone can't sue you anyway, notwithstanding that disclaimer. Anyone can sue anyone in civil court. That's the way the system works. Someone could track you down and sue you for the (bad) advice you gave that cooked their Macbook, even though they got that advice on SE and SE states that SE is not responsible for any damages resulting from the use of the information. The TOS of all SE site(s) shows that anyone who uses SE sites is bound by this click-through agreement, even if they didn't read it. And that should suffice in a court if it gets that far. It should suffice for any attorney thinking of taking the case of someone who wants to sue you. Again, someone could sue you; but chances are really great that it will never go very far due to the legal nature of SE and your contributions. This SE site - Law SE - has more of a specialized TOS, as practicing law without a license is illegal, and giving legal information as a layperson (or even as an attorney, of which there are some who particpiate here) needs special terms; see the sidebar for this disclaimer and link: Law Stack Exchange is for educational purposes only and is not a substitute for individualized advice from a qualified legal practitioner. Communications on Law Stack Exchange are not privileged communications and do not create an attorney-client relationship. General Disclaimer - Law Stack Exchange So, if you do get sued by someone who cooked their Macbook by following your bad advice, you can ask about the lawsuit here on Law SE. But, unless your question is about general legal procedures, terms, case law, etc. (as outlined at What topics can I ask about here? - Law SE), your question will be closed because this site is not for giving specific legal advice in specific legal situations, especially active lawsuits. You will be advised to talk to an attorney.