Federal Circuit Narrows Scope for Copyrighting Software program Perform

by Dennis Crouch

The copyright lawsuit between the data-software firm SAS Institute and its scrappy copycat World Programming has been fascinating to observe 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 Decide Reyna and joined by Decide Wallach affirmed the decrease court docket ruling that SAS failed to ascertain copyrightability of its claimed program components.  Writing in dissent, Decide 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 consequence controversial. The end result would even be controversial had Decide 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 honest use underneath copyright legislation.  As a result of its honest 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, laptop software program can nonetheless be copyrightable.  However, events asserting safety might want to do a a lot better job of exhibiting how their artistic 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 specific 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 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).  Specifically, 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, the truth is, protectable.”   The issue for SAS is that it provided no rebuttal and as an alternative “refused to interact within the filtration step and selected as an alternative to easily argue that the SAS System was ‘artistic.’” Slip Op. SAS introduced 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 via 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 function of the SAS product is that folk can write applications utilizing SAS syntax as a way to get sure outcomes. Thus there are a selection of knowledge jockeys who’re consultants 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 isn’t protected by copyright.  The WPL model permits of us to make use of SAS language to get the identical outcomes — however at a a lot lower cost.   Once I sa “identical outcomes” — the clone just about identically copied output kinds so {that a} chart made with WPL seems to be mainly an identical to a chart made in SAS utilizing the identical code.

SAS sued in E.D.Tex for copyright infringement.  Decide 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 purchasing, SAS had additionally included patent infringement allegations that they finally stopped pursuing.  Below the foundations of process, if patent claims had been raised within the case sooner or later, then the attraction heads to the Federal Circuit.

The copyright case will not be about copying code.  It seems relatively 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 fashion. Within the filtration evaluation, WPL supplied a bunch of proof to point out that these options ought to 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 an identical or practically an identical to these in SAS 76 and ought to be filtered.
  • WPL demonstrated that the SAS Language ought to 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 introduced enough proof to point out uncopyrightability and that the district court docket was justified in requiring SAS to instantly and significantly rebut the proof relatively than merely permitting a trial on the copyright as an entire.

The district court docket was right to train its authority and require SAS to articulate a legally viable concept on which it anticipated to base its copyright infringement claims. Conversely, it will 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, Decide Newman argued that Fifth Circuit legislation protects this kind of laptop software program structure even from non-literal copying.  The important thing quotation is prone 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 additionally 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).   Decide Newman famous that “laptop applications” are expressly protected inside the Copyright Act

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

Decide 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 Legislation, 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 Prepare 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 Trade 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 Legislation, Know-how & 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.