Copyrightability of Software: The Next Big Case

by Dennis Crouch

The next big software copyright case is before the Federal Circuit in the form of SAS Institute, Inc. v. World Programming Limited, Docket No. 21-1542.  The litigation has substantial parallels to Google v. Oracle, but might end up with a different outcome. In Google, the Supreme Court found fair-use but did not decide the issue of copyrightability. That issue is front-and-center in this case.

WPL is a UK based software company who obtained several copies of SAS statistical software and made a clone version. SAS sued in E.D.Tex for both copyright infringement and patent infringement.  The district court dismissed the copyright claims — holding that the software was unprotectable.

Plaintiff SAS showed that it holds a registered copyright, amply argued that its asserted works are creative, and presented repeated evidence of factual copying. … Defendant WPL then came forward with evidence showing that material within the copyrighted work was unprotectable. … SAS thereafter failed to show any remaining protectability, either by affirmatively showing some elements of the work to be protectable or by combatting Defendant’s showing of unprotectability.

Dismissal Memorandum.  SAS also stopped pursuing the patent allegations and they were dismissed with prejudice. Their inclusion in the case appears to have been enough to give the Federal Circuit jurisdiction rather than the Fifth Circuit, even though only copyright issues are on appeal.  I’ll note that a parallel copyright claim was rejected by the U.K. courts who determined that WPS had “reproduced only aspects of the program that are not protected by U.K. copyright law.”  Separately, SAS also previously litigated this copyright case in North Carolina federal court.  That court also granted summary judgment to the accused infringer on the copyright claim.  However, 4th Circuit vacated the copyright holding as moot and that claim was dismissed without prejudice.  Thus, as WPL writes in its brief: “This is the third time SAS Institute Inc. (“SASII”) has sued World Programming Limited (“WPL”) for copyright infringement. It is also the third time courts have rejected SASII’s copyright claims.”

SAS is hoping to change that outcome and has taken its appeal to the Federal Circuit with Dale Cendali (Kirkland & Ellis) leading the charge.  We shall see, but the Federal Circuit is likely one of the most pro-copyright courts in the country.  SAS’s primary arguments on appeal:

  1. Copyrightability: The SAS Material should be deemed copyrightable as a matter of law because (1) of the plethora of creative choices; and (2) even if individual elements in formatting and design are unprotectable, the overall selection and arrangement is protectable.
  2. Filtration Analysis Procedure: It is the defendant’s burden to show what aspects of a copyrighted work are not protectable; the district court flipped that around by requiring the plaintiff to show what is protectable.
  3. Filtration Analysis Procedure: The district court appears to have held a bench trial on this issue, but called it a “copyrightability hearing.” Normally this is an issue for a jury (although the copyright holder does not raise a 7th Amendment challenge).
  4. Filtration Analysis Procedure: The district court excluded SAS’s fact and expert witnesses in an improper manner.

WPL’s responsive brief was recently filed by Jeffrey Lamken (MoloLamken). The appellee restates the key copyrightability issue as follows: “Whether copyrights over a computer program protect (a) the functionality of executing programs written by users in a free-to-use computer language or (b) outputs dictated by user-written programs.”

A number of amicus briefs have already been filed in the case supporting the copyright holder.  The the deadline for briefs in support of WPL has not yet passed.

  • Brief of Ralph Oman (former Register of Copyrights): Computer programs are literary works entitled to full copyright protection. Once registered, the copyrights are entitled to a presumption of validity.
  • Author’s Guild (et al): Upsetting the burdens undermines copyright.  Although this is a software case, it has major spillover potential in other areas such as photography, writing, and music.
  • Copyright Alliance: Software is protectable by copyright.
  • Mathworks and Oracle: The court “flubbed its application of an otherwise sensible burden shifting approach.”

My favorite part of the appellee brief is that the redaction was done in MadLib format: 

Briefs filed so far:

75 thoughts on “Copyrightability of Software: The Next Big Case

  1. 11

    Watching these feeble attempts to rationalize copyright versus patent protection for the non-logic parts of computer logic instructions is even funnier against the context of a toxic schlub trying to get computers recognized as inventors.

    1. 11.1

      Your point is exceedingly unclear.

      Maybe if you tried to answer the question put to you below at 4.2.1, readers might pick up more than your unrestrained feelings.

      1. 11.1.1

        “ Your point is exceedingly unclear.”

        … says the least coherent ranting droolbag in the patent blogosphere.

        Phone a friend, pumpkin.

        1. 11.1.1.1

          Lol / no need for me there.

          But you might try it.

          Oh wait, you would have no one to call

  2. 10

    Software isn’t a literary work, and shouldn’t be protectable as such. It’s just a thing that, when made part of a computer, is equivalent to a hard-wired machine, and as such should be protectable by – and only by – patent.

    But I don’t trust the CAFC to get this right.

    1. 10.1

      Nope – it is plain error to think that this is an either/or thing.

      I will grant that for most software, the expressive aspect MAY only provide thin copyright protection, but those aspects exist nonetheless.

    2. 10.2

      Greg thinks this idea is not simple enough:

      Eligibility for patenting and copyrighting should turn on the consumer of the content, not the content itself.

      Courts are asking the wrong eligibility question, which is why the answers are incoherent and seemingly case-driven.

      The expression in software should be protectable by copyright. Code is written and fixed to media by creators.

      The function in software should be protectable by patent. Function is utility realized by organized activity.

      Function and expression are only distinguishable in one absolute aspect: patentable function cannot occur within human mind and copyrightable expression cannot be conveyed to a non-human mind.

      Thus API’s, which convey information to other programs, cannot be expressive, but only functional.

      Thus software elements involved with the automation and digitization of activity is functional, while software elements involved with human interaction is expressive.

      It’s a simple, repeatable, logical, reasonable and inevitable distinction. However long it takes, this is where it has to end up.

      1. 10.2.1

        Marty,

        I do NOT think that Greg has commented on the simplicity or lack thereof of your statement here of, “Eligibility for patenting and copyrighting should turn on the consumer of the content, not the content itself.

        It should immediately be apparent though that your statement simply has no tether to the law (neither now, nor throughout its history).

        There is NO such “turn on the consumer of the content” frame of reference as you so ardently desire.

        That being said, I DO see that you parrot my own views vis a vis:

        The expression in software should be protectable by copyright.

        and

        The function in software should be protectable by patent.

        I congratulate you on at least taking those steps.

      2. 10.2.2

        “ The function in software should be protectable by patent.”

        You can’t patent “function”. You can patent new articles of manufacture based on their differing structure relative to the structures of prior art manufactures however.

        Or you can admit you are simply creating an exception out of thin air in which case just use any old criteria that you want because lol who cares nothing matters as long as the patents are being churned out at record breaking levels.

        1. 10.2.2.1

          … so tell me how could it be that there is not a difference in structure, and yet there is a difference in “function?”

          And yes, those of us more learned than Marty can recognize the actual statutory categories and won’t be bogged down in semantics like you appear to delight in.

          1. 10.2.2.1.1

            “ tell me how could it be that there is not a difference in structure, and yet there is a difference in “function?”

            Derp my game show projecting box simply must have a “different structure” from my derp crime show projecting box derp and especially for the purpose of making a derp patent law relevant distinction derp!

            Spare us, Billy. Your inane goalpost moving gaslighting spewage was transparent and tiresome tiresome ten years ago.

            You can’t claim new functions. New functions are not eligible subject matter for patenting. There really isn’t anything controversial about that statement. Even if it were true that some debatable “new” function must have a “new structure” lurking behind it, that just highlights the problem with claims that fail to recite that new structure.

            Judge Newman’s Folly. Even disgraced Judge Rader figured that one out.

        2. 10.2.2.2

          …. and yes, the obvious thrust of your attempt here has been put back to you in the form of the Grand Hall experiment.

          But let’s see you pretend yet again that somehow you don’t understands the concept behind that story…

          1. 10.2.2.2.1

            “ the Grand Hall experiment.”

            The Caleb Wallace of patent bs. How’s that horse dewormer working for all you glibertarian patent dipshirts out there in Texas and Florida? Cr@ppin’ all over yourself in the grocery store must be a fun addition to the virtual bed filthing you do here every week.

            Nobody could have predicted ….

            1. 10.2.2.2.1.1

              Nice try with the one bucketing (it just does not work).

              You have still not ever addressed the Grand Hall experiment on the merits in anything even remotely close to inte11ectual honesty.

              Ever.

              But your threadbare script was a still there.

          2. 10.2.2.2.2

            Hey remember when Florida Guy Hal Whatshisname with his silly mailing list called Judge Chen’s worse decision a “tour de force” and then it got overturned 9-0 because it was so obviously wrong? And the cherry on top was Billy spewing relentless nonsense about “statutory interpretation” which he knows nothing about?

            I do. Flippin hilarious.

            1. 10.2.2.2.2.1

              It seems that you are straining awfully hard to claim some type of victory of once over 15 years, but what is your point here and now on THIS topic?

              Do you even have one?

              1. 10.2.2.2.2.1.1

                “ It seems that you are straining awfully hard to claim some type of victory”

                Try total victory, numerous times, and I’m not straining at all.

        3. 10.2.2.3

          No actual answers form you, Malcolm.

          Shockers.

          (Not)

  3. 9

    Compaq, which revolutionized computers, reverse engineered IBMs systems, allowing them to compete.

    No one thought that was a copyright violation or IP violation of any kind. And it was good for innovation.

    No, APIs and normal code are not the same thing. Yes, if you cut and paste code, that is a violation (though if you are a software developer … like come on guys. Everyone does this. StackOverflow is basically this).

    An API is designed to be copied, it is a list of commands to access certain software. It refers to something else. You can’t copyright it for that reason, for the exact same reason you can’t copyright titles, or names, or keyboard layouts, etc…

    No one said those things are not expressive! They are! Yet you can’t copyright them because they refer to a broader work, and basic communication and competition relies on everyone being able to use them.

    The idea behind copyright law is that if I write a function that picks the highest value, say MaxList, I own that function. I do not own EVERY function that gets the maximum value from a list! That is a patent problem!

    Someone can therefore write another function that does the same thing. Per how computers interprete commands, that function MUST have the same name! People complaining about Google vs. Oracle … Java is explicitly designed this way. Interfaces and Overloading force a developer to use the same name, otherwise they would have to rewrite everything.

    And some people made random logical extensions … but that is akin to saying, oh, you cant copyright the chapter titles on the book because it refers to a broader chapter, but all words refer to things, so you cant copyright anything. Sure. But thats ridiculous, so we can and do draw lines. We will do so here.

    And I dont even think this is full proof. I do believe you can have a rule that, ok, Google cant design something with Java.getMax() but Google can do Google.getMax(), but that is a trademark issue. Not a copyright issue. That is a cleaner way to handle stuff like false representations.

    1. 9.1

      Let me guess: you have zero legal training.

      1. 9.1.1

        +1

    2. 9.2

      “ I do not own EVERY function that gets the maximum value from a list! That is a patent problem!”

      In fact it’s not a patent issue either because you can’t patent functions or results. Or math. Or logic.

      It’s always amusing to watch people dance around the obvious problem which is that software was shoehorned into the system on the back of a childish falsehood. Its an exception without justification that has predictably corroded and fouled up the entire system. Who benefits? The already wealthy insanely greedy jackarses who habitually ruin everything.

      1. 9.2.1

        Malcolm being Malcolm returns with the same decrepit script from before his year plus “sabbatical.”

        One big
        Y
        A
        W
        N

  4. 8

    With respect (of course), I think the OP mischaracterizes the nature of the case and exaggerates what’s at stake here.

    On the former, this case is hardly about SW at all. There’s no allegation WPL copied SAS’s actual SW. WPL has its own SW. Yes, the WPL system can understand the same inputs as can the SAS system, but users provide those inputs. The inputs have to be formatted a certain way to be understood by the SW, of course. But (1) it’s hard to buy the argument that SAS has some copyright in formatting requirements it imposes on users (and even if so, WPL would hardly seem to be infringing that) and (2) the formatted inputs are quite a far cry from “software” in any normal sense of the word. SAS “programs” are just structured inputs to the SW, and the output is always some kind of report. So it’s very unlike say C# where code is actually compiled into standalone executables that perform general purpose functions. It seems much closer to something like stored procedures in SQL. (SAS also alleges infringement of the report templates, and it’s a closer call on that one, but again, a report template has nothing to do with SW at the end of the day.)

    On the latter, given the above, I don’t really agree this case presents the issue of SW copyright, let alone “squarely” as the OP says. SAS even seems to agree since it leaves the issue of the input formats and report templates as next to last in its brief. I think this case is probably a much easier one that Google.

    Two parting observations: (1) even if they reflect discovery info from SAS, the redactions in WPL’s brief seem really excessive, particularly for an appellate brief; and (2) this practice of dismissing patent claims yet still getting CAFC jurisdiction feels quite inappropriate.

    1. 8.1

      I agree with (2) but most of what wrote is nearly psychotic.

      1. 8.1.1

        Well, “psychotic” is a fairly harsh condemnation, but I’ll take what I can get, so thanks for the agreement on (2) in any case! (I assume you meant the initial meaty (2) and not the later postscript (2).)

        But, and not to look a gift horse in the mouth [is that how you find ivermectin? :)], I was hoping you could elaborate on your criticism—which I assume was of the initial (1).

        In the meantime, let me also clarify a little. Hopefully that will make it easier to respond. I want to explain what I meant by “formatting requirements” exactly. A concrete example will help too, so let’s use the one for PROC MIXED on numbered page 14 of the SAS brief. I can grant that SAS might have a valid copyright in the actual description of the syntax—i.e., what is literally shown in the user manual excerpt on that page. But does SAS have any copyright in programs that are written—by users, not SAS itself—to conform to that syntax, merely by virtue of the conformity? And, taking it a step further, does SAS have any copyright in a program developed by a third party simply because it can properly interpret user-written programs compliant with the SAS input format syntax? I think on both counts, it’s quite farfetched to say the answer is yes.

        Some analogies might also help illustrate my point. Suppose I develop a new written language for humans, with its own unique syntax. We can assume that’s a creative exercise, but then do I get a copyright on every book written in the new language? And even in the mere act of comprehending such books?

        Or, to make it more technical, consider the TCP protocol, which certainly has a syntax or grammar of sorts for how packets are structured. Assuming I can get a copyright on the protocol itself, then do I also have a copyright on every single packet sent using the protocol? What about every router that can process the packets?

        From the above, I think you can see where I’m going with this.

        1. 8.1.1.1

          “I think you can see where I’m going with this”

          You vastly overestimate the intelligence of the people you are trying to convince. Also, they don’t care about arguments and reasoning. They know the “right” answer and any word salad that gets them there is going to defeat your well-articulated counter example.

          Again, a lot of these glibertarians are Qnutcases who voted for Mango Hairball and are running around now trying to sell horse dewormer to their own grandmothers.

          1. 8.1.1.1.1

            Hahaha — nice “one bucketing” here Malcolm, but just because someone is having a disagreement with Night Writer does NOT mean that that person espouses your “Anti” crud.

            (You would do better paying heed to your own advice of ‘car[ing] about arguments and reasoning’ — as you do not do that)

  5. 7

    API’s have no human users. They are very specifically interfaces designed to be used by other software- that’s why they are called program interfaces. Since only a human being can consume an expression, clearly a non-human cannot infringe a copyright until some human consumes the content. No human audience=no infringement.

    The Supreme Court didn’t get there, but they knew that something about API’s distinguished them from other kinds of software.

    1. 7.1

      Martin, your logic applies equally to all software, which is expressly copyrightable.

      1. 7.1.1

        You are correct – and to be more precise, all software has attributes — or differing aspects — that merit different protections under the different IP laws.

        Those aspects of software that are functional deserve protection under patent law.

        Those aspects of software that are expressive deserve protection under copyright law.

        This is simply something that has aspects in both worlds of copyright and patents. It is simply NOT an either/or situation.

        ONLY those that seek to denigrate and avoid providing intellectual property protection are the ones seeking to cloud the issues.

      2. 7.1.2

        Microsoft Word is used by persons. If I craft up a program that looks exactly or very similar to Word, I’m infringing a copyright. Doesn’t matter how it works, if the expression is about the same.

        1. 7.1.2.1

          The software that makes up Microsoft Word is intended as a machine component.

          The utility of that machine component is for people.

          Yet again, you stumble in a terrain that you refuse to recognize.

      3. 7.1.3

        NWPA bro, I was reading the article you cited by judge michel (linked below). On page 19 he goes on and on about how it was supposedly the supreme court deciding (in ebay etc) that “the effect of the court’s decision was to significantly undercut the injunctive right established in the constitution”. But be honest bro, isn’t it the congress’s fault for making the injuctive remedy be merely in accord with equity rather than a special carve out where an injunction is applied as a matter of statutory law? I mean, that’s not the court’s doing, that was the congress’s doing. And they of course did that because injunctions are generally only remedies in equity rather than in statutory law. I mean, how is he just laying this at the feet of a court when it’s plainly the congress that made it this way?

        Overall a decent paper tho.

        link to lawreviewdrake.files.wordpress.com

        1. 7.1.3.1

          But be honest bro, isn’t it the congress’s fault for making the injuctive remedy be merely in accord with equity rather than a special carve out where an injunction is applied as a matter of statutory law?

          Easy answer: no.

          The first precept of equity is to make the transgressed as whole as possible.

          In the patent sense — since the patent is a negative right, that making whole IS best served by injunction.

          The Court mis-stepped by swallowing the notion (without thinking) that ‘injunction is the harsh.’

          1. 7.1.3.1.1

            “The first precept of equity is to make the transgressed as whole as possible.”

            Bruh I don’t want to be a dick here or whatever but that doesn’t sound correct. iirc the main point/rule (“precept”) to equity, in general, is for the “court”/bishop/king (in olden days) to not be involved but to the bare rock bottom minimum as they understood that the power of equity was gigantic and too easily abused. Happy to be wrong there but I’m pretty sure that is literally the case and has been since before we were born. Tho you might be talking about “maxims” but the maxims of equity also don’t have that as “the first one”.

            “The Court mis-stepped by swallowing the notion (without thinking) that ‘injunction is the harsh.’”

            I get that is your opinion and what have you, but bruh, that’s been recognized for literal centuries before you were born. It’s not a mere matter of the court’s opinion. It’s been “tried in the fires of reality” for hundreds of years already.

            1. 7.1.3.1.1.1

              “>Happy to be wrong there”

              You are.

              It’s not at point whether equity is to be in play. The consideration that I am talking about is that there is no question that equity is in play.

              but the maxims of equity also don’t have that as “the first one”.

              I am neither talking about maxims, nor is what I am talking about anything other than first.

              but bruh, that’s been recognized for literal centuries before you were born.

              Wrong again.

              It is not been so recognized, and in fact, were you actually aware of how equity ‘is recognized,’ you would readily see how this type of ‘knee-jerk reaction’ is simply a mindlessness fear without taking the wisdom of context into full consideration.

              That wisdom demands that the nature of the right that HAS BEEN transgressed be realized.

              THAT is what has been hardened in the fires of reality for hundreds of years.

              1. 7.1.3.1.1.1.1

                “You are.”

                I mean you can say that, but that’s not a citation to many ponderous legal tomes showing your historical position to be the case, whereas it is ez to cite to tomes showing courts o equity declining to get involved, esp after whateverish the mid 1800’s as it became more and more understood that it was a power being abused.

                “It’s not at point whether equity is to be in play. The consideration that I am talking about is that there is no question that equity is in play.”

                Yes we know it is “in play” in these circumstances, and you are discussing such circumstances in particular (as congress specifically set that forth in the statute). But even when it is “in play” the courts still want to apply the lowest remedy possible in equity as they know the equitable power can run amok ez.

                “Wrong again.

                It is not been so recognized, and in fact, were you actually aware of how equity ‘is recognized,’ you would readily see how this type of ‘knee-jerk reaction’ is simply a mindlessness fear without taking the wisdom of context into full consideration.”

                You’re sitting here saying that bro, but that’s not what the scholarship says. And still further, even if it was, your argument would need to be made over and over again in every patent case seeking an injunction as equity starts from zero presumptions about remedy in every single case, not a presumption of an injunction being presumed from the outset should infringement be found.

                “That wisdom demands that the nature of the right that HAS BEEN transgressed be realized.”

                That I agree with you on, the question is then, what is that “nature”? And the courts have clarified that it was not the nature that people were presuming it to be (franchise/property). Again, congress could fix that, but they have not. Again, tis on congress. If they want to make it “property” that is “trespassed” then they can. Right now it’s just a patent/letters patent that creates a cause of action in a court house to exclude others, with courts determining the remedy of others failing to heed the exclusion. Only congress can change it I’m afraid bro. There’s just no fixing it through court-made equity changes etc.

                1. I mean you can say that, but that’s not a citation to many ponderous legal tomes

                  I can and I did – and further, no such “ponderous legal tones are necessary from me in the inter webs.

                  Come now man, you all but admit that I am correct as I lay out the circumstances here of being in play and all.

                  Further, there is no such “need be made in every patent argument.”

                  Yeah, that would be the better path, but I am telling you the straight up law as it really is. Unfortunately (and not limited to this situation), how the law gets applied and how the law SHOULD BE applied do differentiate. That’s just a lack of justice in the world due to man’s imperfections. Does not change one iota the fact that I have provided the correct view of how the law is supposed to work.

                  And certainly Congress could change it — but the bigger point here is that Congress should not have to change it.

                  It simply would be better for all were the proper precepts of equity merely be applied in full view of the context of what the patent right is.

    2. 7.2

      You are making this more complicated than it needs to be, Martin. It may well be that—in the ordinary course—no human actually reads the code for an API, but there is no reason in principle why a human cannot read the code. Therefore, the code is a creative expression of a human intellect, and thus subject to copyright. Just because no one actually reads the code does not make it any less a work of human creativity.

      1. 7.2.1

        To the contrary Greg, its the courts and congress who have made it far more complex than it needs to be.

        IP is not transitive, like algebra. A copyright is for ANY newly made work, while a patent requires some degree of creativity.

        In software, there is only ONE coherent way to separate expression from function: an understanding that non-humans can’t consume – infringe- on creative expression, whilst a human being cannot consume information without expression. You can read the API code all you want, and it will make an impression upon you, but it cannot be functional.

        But since the sine qua non of an API is its functionality, recognizing that it cannot be expressive and infringed is the correct legal outcome.

        This babbling about terrain and bundles makes no sense for the same reason. Function and expression can only be determined ex post, and only by the intrinsic attributes of the consumers of the content.

        1. 7.2.1.1

          A copyright is for ANY newly made work, while a patent requires some degree of creativity.

          Please, please, please learn the terrain upon which you want to do battle.

        2. 7.2.1.2

          To the contrary Greg, its the courts and congress who have made it far more complex than it needs to be… [S]ince the sine qua non of an API is its functionality, recognizing that it cannot be expressive and infringed is the correct legal outcome.

          If you think that this analysis is simpler than mine above. I really do not know what to say. Chacun à son goût, as Prince Orlofsky says…

        3. 7.2.1.3

          A copyright is for ANY newly made work, while a patent requires some degree of creativity.

          This was expressly NOT the outcome reached by the Supreme Court in the Google API case (as they could have).

          1. 7.2.1.3.1

            mea culpa – I grabbed the wrong quote to remark on the Supreme Court action.

            The proper quote is, “But since the sine qua non of an API is its functionality, recognizing that it cannot be expressive and infringed is the correct legal outcome.

  6. 6

    WPL is a UK based software company who obtained several copies of SAS statistical software and made a clone version.

    How do U.S. courts have jurisdiction over actions occurring in the U.K.?

    1. 6.1

      This is for sales of WPS in the U.S.

  7. 5

    Re: “The appellee restates the key copyrightability issue as follows: “Whether copyrights over a computer program protect (a) the functionality of executing programs written by users in a free-to-use computer language or (b) outputs dictated by user-written programs.”
    ? Doesn’t that “written by users” and “user-written” sound more like a copyright authorship/ownership challenge?

    1. 5.1

      I can see where you might think that, but no – the aim is more in line with the functionality of the language itself. It might help to read it as “any writer using THAT language.”

  8. 4

    The reality is that if you are going to say that an API is not copyrightable, then you can’t really copyright any software. Software is built by a series of layers of APIs going down to the individual function. Stripping the API away leave another layer of APIs that are used by the internal functions. Stripping away those APIs leaves another layer of API used by central functions.

    Reality. The thing is that we have people on the CAFC deciding these issues when many have never had a course in science or engineering and have absolutely no understanding of EE/CS. Have you read some of the things they outside the court or talked to them? It is like talking to a five year old.

    1. 4.1

      It’s even worse than that – read again the Supreme Court’s evisceration in the Google API decision — the simple blueprint to reach “Fair Use” (even taking API’s AS copyrightable) is further reaching than the general consensus is admitting.

        1. 4.1.1.1

          IP Watchdog is a cesspool of glibertarian disinformation, Ferdlist Society wanking, and wingnut-infused patent maximalist propaganda. And that’s always been the case.

          Quinn is a pathetic paranoid chronic lying tool who still can’t bring himself to articulate the facts in Prometheus v Mayo (tho he’s hardly alone in that regard).

          1. 4.1.1.1.1

            Reminds me of the good old days of Malcolm being Malcolm.

          2. 4.1.1.1.2

            Not by Quinn, but at Quinn’s site:

            link to ipwatchdog.com

            (the numbers are going to SOOOO upset Malcolm – and not just the US numbers, but the EPO numbers where a “per se” and “as such” BAN still see software inventions climbing to nearly HALF OF ALL applications)

    2. 4.2

      Even if it’s true that software isn’t “copyrightable” (in the traditional sense) or patentable … who cares?

      What difference would it make? Be specific and provide evidence for your assertions.

      1. 4.2.1

        Even if it’s true that software isn’t “copyrightable” (in the traditional sense) or patentable … who cares?

        Can you articulate a cogent reason why any particular field of innovation should be deprived of the legal protections afforded all innovation?

        Be specific and provide evidence for your assertions.

        You first, as you are staking out a pretty wild presumption as the starting point.

      2. 4.2.2

        Malcolm,

        Your silence is deafening.

        (as literally anyone could have prophesied )

      3. 4.2.3

        Still silent on this point?

        Shocked. Shocked I tell you.

    3. 4.3

      “ never had a course in science or engineering ”

      As you and your bff “anon” (and many other patent buffers who post here) have proven beyond any doubt, knowledge in such areas does not equate with a heightened ability to reason or present a coherent argument.

      1. 4.3.1

        Correction: “patent Huffers”

      2. 4.3.2

        Hi Malcolm, how have you been?

        1. 4.3.2.1

          +1

          Yeah Malcolm tell us how you are doing?

    4. 4.4

      This is like saying: “A book is a collection of chapters, which in turn are just a collection of paragraphs, which in turn are just a collection of sentences, which in turn are just a collection of individual letters. Therefore, since individual letters cant be copyrighted, then neither can full books.”

      On top of that, if software isnt covered by current copyright law then… so what? The whole idea that software IS copyrightable under current law is based on the idea that software is “literary work,” which itself is a stretch. Go ask your CS friends that you hold in high regard if they consider software a literary work. That itself is a judicial stretch by the same judges you basically call idiots here.

      1. 4.4.1

        Clearly, the law is NOT as you put it.

        There is a reason lawyers are trained.

    5. 4.5

      How much science background should one need to adjudicate copyright issues? I am sympathetic to this argument vis-a-vis patent law questions, but surely science training should not be necessary for copyright questions.

      1. 4.5.1

        I believe the CAFC has this case because of related patent issues. And to understand software one really needs some science/engineering training.

  9. 3

    Was the software run here that counts the number of identical lines of code between the copyright registered software and the accused infringing software?

    1. 3.1

      As noted in the briefs and in some comments here, WPL developed its S/W by reverse engineering SAS, so there’s no point in comparing any source code.

  10. 2

    >a clone version

    The brief redacted the key sentence. Did they actually do a clean room re-implementation ala the old PC-BIOS case?

    1. 2.1

      After the Google API evisceration, do you still think that “clean room re-implementation” is the necessary standard?

      1. 2.1.1

        It would be nice to know if you are right or wrong. Google was a fair use case and API’s are especially bad set of facts there, so it’s possible some wiggle room remains w.r.t. the more conventionally expressive aspects of software.

        It would also be nice to know whether you need to go through the effort of re-implementing the API vs. just coping the whole program, lock stock and barrel.

        1. 2.1.1.1

          It would be nice to know if you are right or wrong

          Well, that’s easy – of course I am right.

          (ever so humbly provided – )

          Of course, I am ever happy to discuss the details of that Supreme Court Google case if you think there is something that leads elsewhere than what I have provided.

  11. 1

    After the Google API evisceration, the ‘copyright is enough protection (functionality and patent protection still need not be present) MUST be feeling really desperate.

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