Will US Follow UK Lead In Case On Copyright And Interoperability?

In a case pitting copyright protection against competition, the United States Court of Appeals for the Fourth Circuit must decide whether World Programming Limited (WPL) violated SAS Institute’s copyright by copying software interfaces that enable interoperability. WPL has already won the argument in the UK and in Europe’s highest court. The case has drawn strong support on both sides from the tech sector and a civil liberties group.

SAS Institute, Inc. v. World Programming Limited has a complicated trans-Atlantic history, as set out in “Interfaces on Trial 3.0” by copyright attorney Jonathan Band, who also authored an amicus brief supporting WPL in the Fourth Circuit case on behalf of the Computer & Communications Industry Association (CCIA). The book is available here.

SAS, based in North Carolina, creates business software products known as the SAS System which lets users perform data access, management, analysis and presentation tasks. Users can carry out tasks on the SAS System by writing programs in SAS language, and the company also offers a version of the system called SAS Learning Edition to help users learn how to program in the SAS language.

WPL, a UK company, developed World Programming System (WPS), which can run SAS language programs and produce similar outputs, Band said. It’s a competing platform on which users can run programs they have written in the SAS language. WPL developed WPS by studying publicly available SAS manuals as well as the SAS Learning Edition. It then ran snippets of the SAS language through WPS and SAS Learning Edition, compared the outputs, and made needed adjustments to WPS. The licence under which WPL obtained SAS Learning Edition barred reverse engineering of the software.

SAS sued WPL in the UK in 2009. The English High Court preliminarily found that software functionality, programming languages and data formats were not protected under the EU Software Directive, but referred the case to the European Court of Justice to clarify the scope of copyright protection in these elements.

The ECJ ruled in May 2012 that “neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive.”

The court said that “to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.” The English High Court sided with WPL in 2013.

The ECJ decision is here.

In 2010, SAS sued WPL in North Carolina for similar conduct. A federal district court ruled in 2014 that the input and output formats WPL copied were not protected under copyright, but that WPL had breached the licence restrictions against reverse engineering. Both sides appealed the lower court decision to the Fourth Circuit.

Documents in the case are available by registering on PACER.

The clash between copyright and competition in the software industry is clear from a sampling of amicus briefs.

Seeking “Unprecedented and Dangerous Power”

“If SAS’s view had been accepted at the birth of modern computing, many important technologies would never have existed or succeeded,” Electronic Frontier Foundation Senior Staff Attorney Mitchell Stoltz wrote on behalf of WPL. “When programmers can freely reimplement or reverse engineer functional interfaces without obtaining a costly licence or risking a lawsuit, they can create compatible software that the interface’s original creator might never have envisioned or had the resources to develop,” said the civil liberties organisation.

SAS is seeking “an unprecedented and dangerous power over the future of innovation,” Stoltz said. Allowing software creators to veto any developer who wants to create a compatibility program would “upset the settled business practices that have enable the American computer industry to flourish…”

EFF’s brief is here.

SAS wants the court to adopt the “minority position” that copyright protects the elements of computer programs necessary to achieve compatibility,” Band wrote in the amicus brief for CCIA, which represents companies such as Google, Facebook and Microsoft; the Internet Association, whose members include Google, Amazon and Netflix; and Engine Advocacy, described as a non-profit technology policy, research and advocacy group that bridges the gap between policymakers and start-ups. Taking that stance “poses serious anticompetitive consequences” for the technology industry, he said.

A company that exercises proprietary control over its products’ interfaces could dictate which products made by other firms could interoperate with its software, Band wrote. “This would extend statutory rights far beyond what is necessary to protect the original expressive elements to which copyright has traditionally attached.”

CCIA’s brief is here.

Court “Created New Exception to Copyrightability”

Computer software is protected by copyright just like any other original, creative expression, said Mayer Brown LLP appellate attorney Andrew Pincus for BSA│The Software Alliance, whose members include SAS, Apple and Adobe. Courts have repeatedly held that software copyrights extend not only to a program’s “literal” elements such as source code, but also to non-literal elements such as structure and user interface, he said in a brief supporting SAS.

To determine which of a program’s non-literal elements are copyrightable, a court must analyse the program to distinguish unprotectable ideas from protected expression, Pincus said. There’s no bright-line test for this, so courts in other US Circuits have come up with specialised frameworks which call for analysing software at various levels of abstraction to identify the designer’s creative choices at each step and filter out non-copyrightable ideas, he wrote. The lower court failed to do that in this case, he said.

The BSA brief is here.

In its submission, The MathWorks, Inc. identified itself as the creator of MATLAB, used by scientists and engineers to perform numeric calculations and visualizations for the aerospace, defence and other sectors. As a proprietary software company, MathWorks licences its software to end-users, and it needs strong and effective copyright protection, wrote appellate attorney David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.

“With little analysis, the court ignored the traditional dividing line between protected, creative works and unprotected, functional ideas,” Frederick said. Instead, he wrote, the court “created a new exception to copyrightability for expressive works and collections simply because, when used as the formats for the input or output of a computer, they also can perform a function.”

MathWorks’ brief for SAS is here.

 

Image Credits: SAS