Copyrightability of a Programming Language

by Dennis Crouch

This is a follow-up post on the pending SAS v. WPL appeal before the Federal Circuit.  The focus of the case is copyrightability of the SAS statistical software and  its outputs.  SAS argues that it made a “plethora of creative choices” in developing its material, and that creativity is more than sufficient to satisfy the originality requirements of copyright law.  Thus far, the courts have disagreed with SAS and rejected its copyright assertions.  However, the company has now positioned its case before the intellectual property friendly Court of Appeals for the Federal Circuit.

Copyrightability of Software: The Next Big Case

The software at issue here is most aptly described as a programming language that consists of a set of functions & options that the plaintiff calls “input formats” used to produce formatted reports. In addition, SAS argues that the formatting of the reports is also copyrighted.  There apparently is no claim of copying of any lines of software, but instead it is copying of the functionality and use of the particular  coding language.  My understanding is that WPL designed its software so that its software would execute the same input-procedure used on SAS and produce an equivalent output.  Although these are functional aspects, they also involve creative choices.

In a prior post, I wrote about the SAS appeal including a number of amicus briefs supporting their strong copyright claim.  Now the other-side has had its chance to respond, including substantial amicus support.  The Federal Circuit’s Google v. Oracle decisions are sitting in the background.  Although the Supreme Court eventually sided with Google on fair use grounds, it did not disturb the Federal Circuit’s copyrightability decision that strongly supported copyright protection even for functional software.  WPL’s amicus supporters are concerned that the Federal Circuit will reinvigorate its approach to copyrightability in SAS.

New briefs in support of the accused infringer WPL:

  • Electronic Frontier Foundation (EFF): The law treats copyrightability of software differently than other literary works (as it should).  Patents should be the go-to in this area.  I’ll note that EFF has also repeatedly argued against patentability of software.
  • 44 Intellectual Property Law Scholars: Focusing substantially on application and procedure for the abstraction-filtration-comparison (AFC) test — arguing that the AFC approach should not be rejected for a general “creative choices” test.
  • Computer & Communications Industry Association (CCIA): “A Copyright’s presumption of validity does not create a presumption that the entire work is protected expression.”
  • 54 Computer Scientists: This brief is helpful in understanding the details of how SAS and WPL operate in the context and history of computer programming languages.
  • GitHub, Inc.: “Vague allegations of nonliteral copyright infringement” lead to FUD — fear, uncertainty, and doubt.

Briefs filed so far:

Law Journal Reading List from the Briefs:

  • Paul Goldstein, Infringement of Copyright in Computer Programs, 47 U. Pitt. L. Rev. 1119 (1986) .
  • Richard H. Stern, Copyright in Computer Programming Languages, 17 Rutgers Computer & Tech. L.J. 321 (1991);
  • Ronald L. Johnston & Allen R. Grogan, Copyright Protection for Command Driven Interfaces, 12 COMPUTER L. INST. 1 (1991)
  • William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law (2003)
  • Pamela Samuelson, A Fresh Look at Tests for Nonliteral Copyright Infringement, 107 Nw. U. L. Rev. 1821 (2013)
  • Pamela Samuelson, Three Fundamental Flaws in CAFC’s Oracle v. Google Decision, 37 Eur. Intell. Prop. Rev. 702 (2015)
  • Lydia Pallas Loren & R. Anthony Reese, Proving Infringement: Burdens of Proof in Copyright Infringement Litigation, 23 Lewis & Clark L. Rev. 621 (2019).
  • Christopher Jon Sprigman & Samantha Fink Hedrick, The Filtration Problem in Copyright’s “Substantial Similarity” Infringement Test, 23 Lewis & Clark L. Rev. 571 (2019)

15 thoughts on “Copyrightability of a Programming Language

  1. 6

    IP Scholars Brief —

    Are these people really IP scholars? I doubt it. I’d bet most of them are making a lot of money from industry trying to burn down the IP system.

    Let’s see some real disclosures of what money they made over the last five years and from whom they made the money.

  2. 5

    > arguing that the AFC approach should not be rejected for a general “creative choices” test.

    OTOH, “AFC” approach makes “fair use” seem positively predictable in comparison. It’s the kind of test “Intellectual Property Law Scholars” love but practicing lawyers hate.

  3. 4

    However, the company has now positioned its case before the intellectual property friendly Court of Appeals for the Federal Circuit.
    Intellectual property friendly? LOL. With friends like them, who needs enemies.

    1. 4.1

      +infinity.

      The CAFC is a stacked court filled with anti-patent judicial activists.

    2. 4.2

      IP friendly Court of Appeals … Dennis has a sense of humor. Who knew? 🙂

      1. 4.2.1

        Can you name an appellate court more friendly to IP?

        1. 4.2.1.1

          Can you name an appellate court more friendly to IP?
          Really, does it matter? If someone wants to end your life with a gun versus someone else one wants to end your life with a knife does it really matter? A debate over how much more evil one is versus the other loses track that they are both evil.

          1. 4.2.1.1.1

            Well, sure, but a pedant will still want a comparative analysis.

            To continue your analogy, are you going to be murdered with a couple of shots to the gut (a very painful way to go), your head blown off (quick and painless, albeit messy), stabbed repeatedly in non-vital organs, only to bleed out over hours (also painful), or have your head sliced off (again, relatively painless).

            As they say, the devil is in the details.

    3. 4.3

      “If the CAFC does not bend over backwards every time to find in favor of the patentee then it can hardly be considered ‘friendly to IP’”! <—- the world’s biggest cry babies

      1. 4.3.1

        and so what does the real “world’s biggest cry baby” consider to be “friendly to IP?”

        Maybe the pre-1952 Supreme Court which christened itself with the moniker of “The only valid patent is one that has not yet appeared before us.”…

    4. 4.4

      Glad to see all this support for ending the CAFC and returning patent appeals to the regional circuits.

      1. 4.4.1

        Do not confuse criticism as support for an item not on the table.

  4. 3

    I just skimmed the outline and some portions of the CS professionals brief, but it seems right and lines up nicely with my thinking on this case. Also, you have to appreciate that it cites as “other authority” a Dennis Ritchie Usenet post from 1998.

    I would say again I think it’s an easier case than Google. It almost seems controlled by Baker v. Selden pretty much. Hopefully CAFC will get it right. (I don’t know their intricacies of panel assignments, but if judges confirmed after briefing starts but before oral argument can be assigned to the panel, then it could end up as an early high-profile test for Tiffany Cunningham.)

  5. 1

    Patents should be the go-to in this area. I’ll note that EFF has also repeatedly argued against patentability of software.

    you are not the only one to have pointed out the lack of consistency

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