Copyright of Software API

This week, the Federal Circuit is hearing oral arguments in an important software copyright case, SAS Institute, Inc. v. World Programming Ltd., Docket No. 21-1542The 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:

  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.

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).


11 thoughts on “Copyright of Software API

  1. 5

    It didn’t sound very good for SAS, although oral argument tea leaf reading is always an exercise fraught with peril. I could see them losing in a 2-1 decision with Newman dissenting.

    One wildcard is whether the court opts to punt instead by blowing it up because Gilstrap went rogue with the “copyrightability hearing”—in that case they would just vacate and remand for a do-over. But I didn’t get the sense they were so interested in that approach.

    Also, despite the presence of numerous amici, I don’t believe I caught any reference to those briefs—at least any express references. Maybe I missed some though.

  2. 4

    Well this thread certainly has not seen the usual suspects (when it comes to IP protection of software).

  3. 3

    EFF’s case page about SAS v. WPL is here:
    link to
    EFF’s amicus brief, explaining the copyrightability issues (including why the first Oracle v. Google opinion doesn’t help SAS) is here:
    link to

    1. 3.1

      EFF: “this should be protected by patent not copyright.”
      ALSO EFF: copyright is enough, and there should be no patents on copyright.

      See post 1.1.1 below.

      1. 3.1.1

        Oops – should read “there should be no patents on software”

  4. 2

    As the story from this link link to indicates,

    Of particular note: “. On remand, the Federal Circuit has now issued a short order in the case sending it back down to the District Court.

    In its order, the Federal Circuit recalled its mandate in the case “solely with respect to fair use.” That means that its judgment favoring Oracle on the question of copyrightability still stands.

    It does not appear that the issue of whether or not API IS/IS NOT copyrightable has been preserved through appeal, and thus is now the law of the case.

    Or did I miss something?

  5. 1

    Dennis, some text appears missing at the end of the second paragraph?

    1. 1.1

      Specifically, the sentence “On appeal, the Federal Circuit” just ends abruptly. That said, it’s not hard to guess what the remainder should have been.

      I’m looking forward to tuning in for the argument.

      1. 1.1.1

        I am looking forward to seeing if consistency is applied.

        There be consequences that MUST flow from the Google decision.

    2. 1.2

      [Now fixed.]

      1. 1.2.1

        This blog has great customer service.

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