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Showing posts with label functionality of computer software. Show all posts
Showing posts with label functionality of computer software. Show all posts

Tuesday, 29 January 2013

"Save Analytical Software"? That's not what SAS stands for ...

Another night could not be allowed to pass without this weblog recording a decision which crept up on this Kat without warning and which he feels a bit guilty about not having recorded earlier. The case in question is SAS Institute Inc v World Programming Ltd [2013] EWHC 69 (Ch), decided last Friday by Mr Justice Arnold, on the return of that case from its "holiday" in Luxembourg.

To remind readers of the facts, the following brief summary may be useful.  SAS developed its own SAS analytical software system, this being an integrated set of programs that let users perform a wide range of data-processing and other tasks -- especially statistical analysis. The SAS software had been in use for some 35 years, generating income of more than £2 billion. At its heart was "Base SAS", which let users write and run application programs ("scripts"), written in SAS language, in order to manipulate their data.

Base SAS's functionality could be extended by using additional components -- in this case SAS/ACCESS, SAS/GRAPH and SAS/STA. Over the years, SAS's customers had created thousands of apps in the SAS Language. Some of these apps were short and simple, while others were vast. Anyone wanting to run their existing apps or create new ones had to take a licence to the SAS components. Other suppliers of analytical software existed in the market, but anyone wanting to change to another software would have to rewrite all its apps in another language, which would be a pain (and an expensive one, too).

World Programming, having recognised the huge potential market for software to execute SAS-based apps for use elsewhere, developed its own World Programming System (WPS) -- which inevitably emulated much of the functionality of SAS's components in order to ensure that they worked the same. It was not alleged that World Programming had access to SAS's source code or copied it, or even that it copied any of the structural design of the components' source code. World Programming also created a WPS manual, which described the functionality of various elements briefly by reference to syntax diagrams, plus a set of WPS guides --four quick reference guides which simply listed elements of the SAS language and indicated whether the current edition of WPS supported it.

In September 2009 SAS commenced proceedings, alleging copyright infringement in its software and in its own manuals, as well as breach of SAS's licence terms with regard to the Learning Edition of the SAS System.  In July 2010 Arnold J, hearing the case, referred a series of questions to the Court of Justice of the European Union for a preliminary ruling.  After the Advocate General gave his Opinion and the CJEU pronounced its ruling, back came the case for Arnold J to finish off.

Mr Justice Arnold offered  SAS only a small crumb of comfort, rejecting all its copyright infringement claims except for that relating to the copying of the SAS manual in WPS Manual -- which he had already established to be the case back in 2010.

* First, he declared that the CJEU's answer to the first five questions amounted to an endorsement of Pumfrey J's interpretation of Article 1(2) of the Software Directive ("Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive") in Navitaire Inc v easyJet Airline Co Ltd.  Basically this means that copyright in a computer program protects neither the programming language in which it is written nor its interfaces and functionality. This in turn means that World Programming had not infringed copyright in the SAS components by producing WPS.

* He then rejected the argument that the SAS language was in itself a work that was its author's own intellectual creation and thus protectable under the Information Society Directive. Based on the evidence which was adduced at trial, and a general understanding of the position, the court's provisional view was that a programming language such as the SAS Language was not capable of being a work [Told you so, says the IPKat to a number of people who have been arguing with him on this point].

* In any event SAS could not assert that the SAS language was a copyright work in its own right without an amendment to its particulars of claim -- and no such amendment should be permitted at such a late stage of the proceedings. To allow it would be to raise new factual and legal issues for investigation.

* The position of SAS's data file formats was no different to that of of the SAS language.

* It could not be said that World Programming had reproduced the expression of the intellectual creation of the author of the SAS manuals, whether by producing or testing WPS.

* Further, the use by World Programming of the SAS Learning Edition fell within Article 5(3) of the Software Directive ("The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the right­ holder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do"), and none of World Programming's actions was a breach of the licence contract or an infringement of copyright.

This weary Kat hopes he has got the case right. He knows that he will hear from lots of readers if he hasn't.

Thursday, 10 May 2012

SAS: “Shake-and-Strain” : it's time for functionality again

"Shake-and -strain" -- the secret
of functionality of a good cocktail
Last week the IPKat posted a quick note ("Not much of an SOS for SAS", here) on a Court of Justice of the European ruling on copyright in the functionality of computer software. The Kat then commissioned a comment from copyright enthusiast Eleonora Rosati, whom some readers may recognise as one of the driving forces behind the copyright-oriented 1709 Blog. This is what Eleonora has to say about the ruling:
"SAS: “Shake-and-Strain” the scope of copyright protection?

On 2 May last, the CJEU published its decision in Case C-406/10 SAS Institute Inc v World Programming Ltd. It followed a reference from the High Court of Justice of England and Wales (Chancery Division), which had sought clarification – inter alia – as to whether the functionalities of a computer program (which were defined in AG Bot’s Opinion as “the set of possibilities offered by a computer system, the actions specific to that program”) are protected by copyright pursuant to Article 1(2) of the Software Directive.

In this respect, what was still controversial was, according to Arnold J, whether the functionalities of a computer program are to be regarded as the expression of a computer program (thus qualifying potentially for copyright protection pursuant to that directive), or whether, instead, they are just ideas and principles which underlie the elements of a computer program, including those which underlie its interfaces (thus remaining out of the scope of protection).

Both AG Bot and the CJEU agreed and held that “neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive”.

With a ‘trick’ similar to that recently employed also in Murphy (Joined Cases C-403/08 and C-429/08) with regard to sporting events, the Court added that such finding is not such as to prevent that copyright vests in some parts of SAS’s computer programs pursuant to the InfoSoc Directive, provided that those parts are their “author’s own intellectual creation”.

As the Court did not elaborate much on this, it may be useful to revert to the Opinion of AG Bot to see what EU judiciary seemed to have in mind in this respect. At paras 52 ff of his Opinion, AG Bot drew an interesting point of distinction between ‘non-creative’ and ‘creative’ functionalities, the latter being potentially subject to copyright protection. He acknowledged that “[t]o accept that a functionality of a computer program can be protected as such would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development”. However, when there are many means of achieving the concrete expression of such functionalities, found the AG, those means may be be eligible for copyright protection under the Software Directive.

Bot also found that reproducing a substantial part of the expression of the functionalities of a computer program may constitute an infringement of copyright. As to the test for establishing infringement, the Advocate General excluded that this ought to rely on the nature and extent of a functionality of a computer program reproduced in another computer program, or the level of detail to which that functionality has been reproduced, or the nature and extent of the skill, judgment and labour expended in devising the functionality of a computer program. This is because copyright protection does not arise on account of the time and work devoted to devising the program nor of the level of skill of its author but of the degree of originality of its writing. However, when it came to envisaging the actual test for infringement, AG Bot went astray in his application of the Infopaq test (Case C-5/08), and held that “it will be for the national court to examine whether, in reproducing the functionalities of the SAS components, WPL reproduced, in its WPL System, a substantial part of the elements of those components which are the expression of the intellectual creation of the author of those components.”

The Opinion of AG Bot and the decision of the CJEU (which largely confirmed it) call for further reflection under three different angles, with regard copyright protection for computer functionalities.

The first one may be perhaps the least problematic. The position of AG Bot paves the way to a distinction between the parts of the program and the program as a whole. Such distinction, as was made clear in Infopaq, is to be found neither in the InfoSoc Directive nor in any other relevant copyright directive (cf par 38 of Infopaq: “As regards the parts of a work, it should be borne in mind that there is nothing in Directive 2001/29 or any other relevant directive indicating that those parts are to be treated any differently from the work as a whole. It follows that they are protected by copyright since, as such, they share the originality of the whole work”). Albeit it is true that some functionalities – like single words in newspaper articles – cannot, as such, be considered as an intellectual creation of the author of the program, it is not disputed that it is through the choice, sequence and combination of those elements that the author may express his creativity in an original manner and thus achieve a result which is an intellectual creation.

This leads to the second point. By distinguishing between protectable and non-protectable functionalities, it is arguable that test for copyright protection shall now focus on the functionality per se, rather than the way this is combined to other elements of the program. This has the potential to expand the scope of copyright protection, even contrary to the text and legislative history of the Software Directive.

The final angle under which SAS may be looked at is the peculiar test for infringement which AG Bot envisaged therein. Neither the Software Directive nor the InfoSoc Directive contain references to “substantial part”. Au contraire, the Infopaq decision adopted a test for copyright protection (and so infringement) which is to be based on quality rather than quantity".
Thanks so much, Eleonora, for this analytic elucidation!

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