Federal Circuit Narrows Scope for Copyrighting Software program Operate

by Dennis Crouch

The copyright lawsuit between the data-software firm SAS Institute and its scrappy copycat World Programming has been attention-grabbing to comply with 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 Choose Reyna and joined by Choose Wallach affirmed the decrease court docket ruling that SAS failed to ascertain copyrightability of its claimed program components.  Writing in dissent, Choose 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 end result controversial. The result would even be controversial had Choose Newman’s place prevailed.

The case is correctly seen as an extension of the Supreme Court docket’s resolution 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 truthful use beneath copyright legislation.  As a result of its truthful use resolution 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, pc software program can nonetheless be copyrightable.  However, events asserting safety might want to do a a lot better job of exhibiting how their inventive authorial enter survives the “abstraction-filtration-comparison check,” which the Federal Circuit  utilized in its resolution.

Copyright legislation’s abstraction-filtration-comparison (AFC) check is used to find out whether or not a selected work is entitled to copyright safety. The AFC check entails breaking down a piece into its constituent components, abstracting the unprotectable components, filtering out any remaining unoriginal or unprotectable components, after which evaluating the remaining protectable components to the allegedly infringing work. The AFC check 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 an alternative 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).  Particularly, 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 point out a scarcity of copyrightability.  If that proof is enough (because it was right here), the burden then shifts again to the copyright holder to rebut — and “to ascertain exactly which components of its asserted work are, in truth, protectable.”   The problem for SAS is that it supplied no rebuttal and as an alternative “refused to have interaction within the filtration step and selected as an alternative to easily argue that the SAS System was ‘inventive.’” Slip Op. SAS offered 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 components).

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

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Some background: SAS makes information evaluation software program. A key characteristic of the SAS product is that people can write applications utilizing SAS syntax so as to get sure outcomes. Thus there are a selection of knowledge jockeys who’re specialists 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’s not 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.   After I sa “similar outcomes” — the clone just about identically copied output kinds so {that a} chart made with WPL appears to be like principally equivalent to a chart made in SAS utilizing the identical code.

SAS sued in E.D.Tex for copyright infringement.  Choose 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 buying, SAS had additionally included patent infringement allegations that they finally stopped pursuing.  Below the principles of process, if patent claims had been raised within the case in some unspecified time in the future, then the enchantment heads to the Federal Circuit.

The copyright case is just not about copying code.  It seems somewhat to be about copying the enter syntax format utilized by people to enter their applications and the output design kinds for outputting information in some explicit model. Within the filtration evaluation, WPL supplied a number of proof to point out 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 equivalent or practically equivalent 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 varied allegedly copied supplies that contained unprotectable components reminiscent of open-source, factual, information, mathematical, statistical, course of, system, technique, and well-known and standard show components.

Bringing these collectively the Federal Circuit concluded that the protection had offered enough proof to point out uncopyrightability and that the district court docket was justified in requiring SAS to straight and significantly rebut the proof somewhat than merely permitting a trial on the copyright as a complete.

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

Slip Op.

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

Most courts confronted with the problem have decided that copyright safety extends not solely to the literal components of a program, i.e., its supply code and object code, but in addition to its “nonliteral” components, reminiscent of 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).   Choose Newman famous that “pc applications” are expressly protected inside the Copyright Act

Copyright safety subsists . . . in unique works of authorship . . . together with . . . (5) pc 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 pc applications. It’s
due to this fact now firmly established that pc 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, Choose Newman significantly famous that the gathering of the varied enter features and output designs is well copyrightable. And, this is identical evaluation performed by the Federal Circuit in its unique Oracle v. Google resolution.

Choose 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 & Educational 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 Faculty 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 Cook 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 Laptop & 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, Expertise & Public Coverage Clinic, College of California Berkeley and CHARLES DUAN represented a bunch of legislation 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.