This week, the Federal Circuit is hearing oral arguments in an important software copyright case, SAS Institute, Inc. v. World Programming Ltd., Docket No. 21-1542. The SAS is an important follow-on to the Supreme Court’s 2021 decision in Google v. Oracle, 141 S. Ct. 1183 (2021). In Google, the Supreme Court sided with the accused infringer on fair use grounds, but did not decide the broader issue of whether Oracle’s API naming convention was copyrightable.
WPL created a clone version of SAS that allows users to use SAS-style inputs and receive SAS-style outputs. SAS argues that those input and output formats are protected by copyright. However, the district court (E.D.Tex. Judge Gilstrap) sided with the accused infringer — holding that WPL presented unrebutted evidence that these elements were not protectable by copyright. On appeal, SAS raises four arguments:
- 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.
- 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.
- 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).
- Filtration Analysis Procedure: The district court excluded SAS’s fact and expert witnesses in an improper manner.
Lots of amicus briefs on both sides:
Supporting SAS: Mathworks & Oracle; Ralph Oman, former Register of Copyrights; Pro-Copyright professors; Copyright Alliance; Computer scientists group; and Creator’s Rights Groups.
Supporting WPL: CCIA; Intellectual Property Law Scholars; another set of Computer Scientists; Github; and EFF.
Arguments set for this Thursday (Jan 13).