December 3, 2023


Rich Inside You

Federal Circuit Narrows Scope for Copyrighting Software program Perform

8 min read

by Dennis Crouch

The copyright lawsuit between the data-software firm SAS Institute and its scrappy copycat World Programming has been fascinating to observe over the previous a number of years, and the Federal Circuit has now issued a controversial opinion within the case.  SAS Inst. v. World Programming Ltd., — F.4th — (Fed. Cir. 2023).  The bulk opinion authored by Decide Reyna and joined by Decide Wallach affirmed the decrease court docket ruling that SAS failed to determine copyrightability of its claimed program parts.  Writing in dissent, Decide Newman argued that almost all’s rejection of copyrightability represents a “far-reaching change” not supported by both precedent or good coverage.  I known as this final result controversial. The end result would even be controversial had Decide Newman’s place prevailed.

The case is correctly seen as an extension of the Supreme Court docket’s choice in Google
LLC v. Oracle America, Inc., 141 S. Ct. 1183 (2021).  In that case, the Court docket discovered that Google’s use of Java API naming conventions in its Android working system was honest use below copyright regulation.  As a result of its honest use choice determined the case, the court docket didn’t rule individually on whether or not the API was even copyrightable within the first place.  In SAS v. WPL, the Federal Circuit squarely addressed the copyrightability query.

To be clear, laptop software program can nonetheless be copyrightable.  However, events asserting safety might want to do a significantly better job of displaying how their artistic authorial enter survives the “abstraction-filtration-comparison take a look at,” which the Federal Circuit  utilized in its choice.

Copyright regulation’s abstraction-filtration-comparison (AFC) take a look at is used to find out whether or not a selected work is entitled to copyright safety. The AFC take a look at entails breaking down a piece into its constituent components, abstracting the unprotectable parts, filtering out any remaining unoriginal or unprotectable parts, after which evaluating the remaining protectable parts to the allegedly infringing work. The AFC take a look at has been beforehand adopted by the Second, Fifth, and tenth Circuits.

Right here, the court docket didn’t delve into the comparability step — and as a substitute merely held that there was nothing left to infringe after abstraction & filtration.

The choice can also be considerably procedural.  The district court docket held a copyrightability listening to and adopted a burden shifting process created by the eleventh Circuit in Compulife Software program Inc. v. Newman, 959 F.3d 1288 (eleventh Cir. 2020).  Specifically, the court docket first assumed that the work was copyrightable based mostly upon the registration paperwork.  It then allowed the protection to current its filtration argument to indicate a scarcity of copyrightability.  If that proof is adequate (because it was right here), the burden then shifts again to the copyright holder to rebut — and “to determine exactly which components of its asserted work are, the truth is, protectable.”   The issue for SAS is that it provided no rebuttal and as a substitute “refused to interact within the filtration step and selected as a substitute to easily argue that the SAS System was ‘artistic.’” Slip Op. SAS introduced an skilled witness on copyrightability, however the district court docket discovered it extraordinarily unreliable and thus excluded the testimony.  (The skilled had not seen something to filter out — even clearly unprotectable parts).

The bulk walked by way of every of those points and in the end affirmed on all grounds.

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Some background: SAS makes knowledge evaluation software program. A key characteristic of the SAS product is that folk can write applications utilizing SAS syntax with a view to get sure outcomes. Thus there are a selection of information jockeys who’re consultants in SAS code.  WPL is a UK based mostly software program firm who obtained a number of copies of SAS statistical software program and made their very own clone model by rewriting the code and by relying upon an early model of SAS that isn’t protected by copyright.  The WPL model permits people to make use of SAS language to get the identical outcomes — however at a a lot lower cost.   Once I sa “identical outcomes” — the clone just about identically copied output kinds so {that a} chart made with WPL appears to be like mainly an identical to a chart made in SAS utilizing the identical code.

SAS sued in E.D.Tex for copyright infringement.  Decide Gilstrap dismissed the copyright claims — holding that the software program was unprotectable.  Copyright infringement appeals are ordinarily not heard by the Federal Circuit, however in a case of what seems to be appellate-forum purchasing, SAS had additionally included patent infringement allegations that they finally stopped pursuing.  Underneath the principles of process, if patent claims have been raised within the case sooner or later, then the enchantment heads to the Federal Circuit.

The copyright case isn’t about copying code.  It seems slightly to be about copying the enter syntax format utilized by people to enter their applications and the output design kinds for outputting knowledge in some explicit type. Within the filtration evaluation, WPL offered a bunch of proof to indicate that these options must be “filtered out” of the SAS copyrights.

  • WPL established that an earlier model of the SAS System, “SAS 76,” was within the public area.
  • WPL confirmed that many Enter Codecs and Output Designs within the present SAS System are an identical or practically an identical to these in SAS 76 and must be filtered.
  • WPL demonstrated that the SAS Language must be filtered as a result of it’s open and free for public use.
  • WPL’s skilled recognized numerous allegedly copied supplies that contained unprotectable parts akin to open-source, factual, knowledge, mathematical, statistical, course of, system, methodology, and well-known and traditional show parts.

Bringing these collectively the Federal Circuit concluded that the protection had introduced adequate proof to indicate uncopyrightability and that the district court docket was justified in requiring SAS to instantly and notably rebut the proof slightly than merely permitting a trial on the copyright as a complete.

The district court docket was right to train its authority and require SAS to articulate a legally viable principle on which it anticipated to base its copyright infringement claims. Conversely, it might be improper for a district court docket to allow a matter to proceed to trial on the idea of imprecise and unidentified theories.

Slip Op.

Writing in dissent, Decide Newman argued that Fifth Circuit regulation protects this kind of laptop software program structure even from non-literal copying.  The important thing quotation is prone to a the Fifth Circuit’s 1994 Engineering Dynamics case:

Most courts confronted with the difficulty have decided that copyright safety extends not solely to the literal parts of a program, i.e., its supply code and object code, but additionally to its “nonliteral” parts, akin to this system structure, “construction, sequence and group,” operational modules, and computer-user interface.

Eng’g Dynamics, Inc. v. Structural Software program, Inc., 26 F.3d 1335 (fifth Cir. 1994).   Decide Newman famous that “laptop applications” are expressly protected inside the Copyright Act

Copyright safety subsists . . . in unique works of authorship . . . together with . . . (5) laptop applications.

17 U.S.C. 102. Because the Nimmer treatise explains, this 1980 modification to the legal guidelines “dispels any lingering doubts as to the copyrightability of laptop applications. It’s
subsequently now firmly established that laptop applications qualify as work of authorship within the type of literary works, topic to full copyright safety.”
1 NIMMER ON COPYRIGHT § 2A.10(B) (2022 ed.).

Right here, Decide Newman notably famous that the gathering of the assorted enter features and output designs is definitely copyrightable. And, this is similar evaluation accomplished by the Federal Circuit in its unique Oracle v. Google choice.

Decide Newman additionally concluded that the district court docket improperly shifted the burden of proof to the copyright holder.

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  • DALE M. CENDALI from Kirkland & Ellis LLP, New York, NY represented plaintiff-appellant together with ARI LIPSITZ, JOSHUA L. SIMMONS; RAYMOND BENNETT, PRESSLY M. MILLEN, Womble Bond Dickinson (US) LLP, Raleigh, NC and CHRISTIAN E. MAMMEN, San Francisco, CA;
  • JEFFREY A. LAMKEN, MoloLamken LLP, Washington, DC represented defendant-appellee. BRADLEY WAYNE CALDWELL, WARREN JOSEPH MCCARTY, III, Caldwell Cassady & Curry, Dallas, TX additionally represented defendant-appellee.


  • ANNETTE LOUISE HURST from Orrick, Herrington & Sutcliffe LLP, San Francisco, CA represented Oracle Company and Mathworks, Inc.
  • BRIDGET ASAY from Stris & Maher LLP, Montpelier, VT represented Lucas Layman, Mark Sherriff, Laurie Williams.
  • ROBERT WILLIAM CLARIDA from Reitler Kailas & Rosenblatt LLC, New York, NY represented Sandra Aistars, Jon Garon, Hugh Hansen, J. Devlin Hartline, S. Todd Herreman, Loren Mulraine, Christopher Newman, Eric Priest, Mark F. Schultz, Steven Tepp.
  • NANCY E. WOLFF from Cowan, DeBaets, Abrahams & Sheppard LLP, New York, NY represented American Photographic Artists, American Society of Media Photographers, Authors Guild, Inc., Digital Media Licensing Affiliation, Dramatists Guild of America, Romance Writers of America, Songwriters Guild of America, Textbook & Tutorial Authors Affiliation.
  • SARANG DAMLE from Latham & Watkins LLP, Washington, DC represented Ralph Oman.
  • MATTHEW S. HELLMAN from Jenner & Block LLP, New York, NY represented Copyright Alliance.
  • JEFFREY THEODORE PEARLMAN from Gould College of Regulation, College of Southern California, Los Angeles, CA represented Harold Abelson, Guido van Rossum, Jon Bentley, Matthew Bishop, Joshua Bloch, Gilad Bracha, Daniel Bricklin, Frederick Brooks, R.G.G. Cattell, David Clark, William Prepare dinner, Thomas H. Cormen, Miguel de Icaza, L. Peter Deutsch, Whitfield Diffie, David L. Dill, Dawson Engler, Bob Frankston, Neal Gafter, Erich Gamma, Andrew Glover, Allan Gottlieb, Robert Harper, Maurice Herlihy, Tom Jennings, Alan Kay, Brian Kernighan, David Klausner, Kin Lane, Ed Lazowska, Doug Lea, Bob Lee, Harry Lewis, Douglas McIlory, Paul Menchini, James H. Morris, Peter Norvig, Martin Odersky, David Patterson, Tim Peierls, Curtis Schroeder, Robert Sedgewick, Mary Shaw, Alfred Z. Spector, Michael Stonebreaker, Ivan E. Sutherland, Andrew Tanenbaum, Brad Templeton, Andries van Dam, John Villasenor, Jan Vitek, James H. Waldo, Daniel S. Wallach, Frank Yellin.
  • JONATHAN BAND from Jonathan Band PLLC, Washington, DC represented Pc & Communications Business Affiliation.
  • MICHAEL BARCLAY from Digital Frontier Basis, San Francisco, CA represented Digital Frontier Basis.
  • JOSEPH GRATZ from Durie Tangri LLP, San Francisco, CA represented GitHub, Inc.
  • ERIK STALLMAN from Samuelson Regulation, Know-how & Public Coverage Clinic, College of California Berkeley and CHARLES DUAN represented a gaggle of regulation professors together with Timothy Ok. Armstrong, Pamela Samuelson, Clark D. Asay, Jonathan Askin, Patricia Aufderheide, Derek E. Bambauer, Ann Bartow, James Bessen, Mario Biagioli, James Boyle, Oren Bracha, Dan L. Burk, Michael A. Provider, Michael Carroll, Bernard Chao, Jorge L. Contreras, Christine Haight Farley, William T. Gallagher, Shubha Ghosh, Jim Gibson, James Grimmelmann, Amy L. Landers, Edward Lee, Mark A. Lemley, Yvette Pleasure Liebesman, Lee Ann Wheelis Lockridge, Lydia Pallas Loren, Stephen McJohn, Mark P. McKenna, Michael J. Meurer, Timothy Murphy, Tyler T. Ochoa, Aaron Perzanowski, Cherly B. Preston, Jerome H. Reichman, Michael Rustad, Matthew Sag, Joshua D. Sarnoff, Niels Schaumann, Jason Michael Schultz, Roger V. Skalbeck, Elizabeth Townsend Gard, Rebecca Tushnet, and Jennifer M. City.
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