Software Protection in the USA

The first time a software was created software protection has become unquestionably important. A software counts as an intellectual property.

In the United States, intellectual property laws exist to protect aspects of computer programs. There are four types of intellectual property; patents, trademarks, copyrights, and trade secrets.

When it comes to deciding how to protect the ideas that were transformed into computer code it is often necessary to choose a patent or copyright.

  1. Copyright Protection

If you publish a computer software the most important legal protection available is the federal copyright law. Copyright protection covers all of the copyrightable expression included in a computer program. In essence copyright protects your software code from someone else using it without your permission. On the downside, copyright protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts.

  • Automatic Copyright

You automatically get copyright protection when your computer software becomes fixed in a tangible medium, “when it’s embodiment in a copy or photo record, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ . . . if a fixation of the work is being made simultaneously with its transmission.” See 17 U.S.C. §101.

In principle, this means that you own the copyright, and no one may;

  • copy,
  • distribute,
  • display or
  • make adaptations of your software

Without your permission.

  • Problems with Automatic Copyright

Still, if someone infringes on your copyright this protection is no longer automatic therefore you have to register the copyright with the Copyright Office in order to file a lawsuit in federal court and satisfy the judge to order the other party to stop the infringement and compensate you for your losses. This „extended registration” costs several hundred dollars extra, while „simple copyright registration” costs only $35 to $55 per work. Often it is also expensive and hard to prove exactly how much damage a copyright infringement has caused.

  • Solution: Registration

On the whole, if you’re software possibly has no value for someone else to copy or use, you may want to just place a copyright notice on the material. But in most situations, if your software is valuable, for legal purposes mentioned above, it is highly recommended to register your copyright with the Copyright Office, which is a relatively simple and cheap. The registration requires some information about the software, including:

  • the title of the work
  • who created the work and when, and
  • who owns the copyright.

How long does copyright last?

In principle, for works created after January 1, 1978, copyright protection lasts for the life of the author plus 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

  1. Patent Protection

To protect the functions and systems of your software, you need a patent. Contrary to copyright, patent law protects the invention itself. Therefore patent protection is not automatic and it is largely limited. There are two types of patents to protect software: utility and design. Utility protects what the software does. Design protects any decorative part of your software.

  • Patent Rights

A patent holder has the right to make, have made, use, sell, or import any product embodying the claimed invention.

  • Things to Decide Before Applying for a Patent

The key is to have a vision about the purpose and goal of the software. Before applying for a patent you have to see and decide whether your idea is worth to investing in intellectual property protections or not. Also, you must know that getting a patent might take as long as two years, it can cost $1,000 to $3,000, and as a general rule it lasts only 20 years. Apart from these difficulties, patent can be really useful and new, unique and non-obvious solutions are always patentable.

  • Applying for a Patent.

While you register copyright, for patent you need to apply, which means you might not receive a patent. To qualify for a patent, your software needs to be new and original, useful and have a “non-obvious” piece of code or function. Your application needs to prove that your software is an invention, not an abstract idea.

Are you in interested in software protection in Hungary or in the USA? We, as a Hungarian Budapest based law firm can assist you.

Dobos István attorney at law (ügyvéd; Budapest) / Zatykó Anna


Phone / Whatsapp: +36303088151