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mArCh 2012 | vol. 55 | No. 3 | coMMunicaTions o The acM 27

Vviewpoints

PhotoGraPh

by

CDrIC

PuIsney

Ar e The BehAVior s o com-

puter programs protect-

able by copyright law?What about program-

ming languages and/or

program interaces? These questionswere hotly debated in the U.S. rom

the mid-1980s to the mid-1990s. Sev-

eral U.S. sotware companies argued

that these aspects o computer pro-grams were parts o the structure,

sequence, and organization (SSO) o

program texts that should be withinthe scope o protection that copyright

law aords to programs. Courts in the

U.S. ultimately rejected such claims.The European Court o Justice (ECJ)

is aced with these questions in the

pendingSAS Institute Inc. v. World Pro-

gramming Ltd. case.

SAS v. WPL

SAS is a well-known U.S.-based devel-

oper o an integrated set o statistical

analysis programs, widely known as

the SAS system. Base SAS, a core com-ponent o this system, enables users

to write their own programs (known

as scripts) in the SAS programminglanguage. These scripts can then be

executed on the SAS platorm. SAS cus-

tomers have written thousands o spe-cialized programs, some o which are

short and simple, others o which are

large and complex, to perorm specifctypes o statistical analysis tasks. Base

SAS can be extended through use o

other SAS components that support a

broader range o unctions.

World Programming Ltd. (WPL) rec-

ognized the possibility o a market de-

mand or an alternative to the SAS sys-tem that could attract customers who

had written scripts in the SAS language.

The most important eature o an alter-native platorm would be its ability to

allow these users to continue to run

their scripts on the dierent platorm.

To test out this idea, WPL developed aset o statistical analysis programs de-

signed to emulate the unctionality o

the SAS system. Because the WPL pro-grams accept the same inputs and pro-

duce the same outputs as SAS, scripts

constructed in the SAS language can beexecuted by WPLs sotware.

WPL had no access to SAS source

code or to any proprietary design docu-

mentation or the SAS system. Nor didWPL decompile the SAS programs. It

purchased copies o SAS sotware in

the marketplace and studied manualsthat came with SAS programs, tested

DOI:10.1145/2093548.2093559 Pamela Samuelson

Lally spanD stwa cpytPtt Wat Pam D?A case beore the European Court o Justice has signifcant implicationsor innovation and competition in the sotware industry.

T Grd crtrm t erp crt Jt.

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28 coMMunicaTions o The acM | mArCh 2012 | vol. 55 | No. 3

iewpoints

the SAS programs to study how they

unctioned under various conditions

(that is, what inputs they accepted

and what outputs they produced), andtalked with SAS customers about their

scripts and their needs.

Ater WPL launched its product,SAS sued WPL or copyright inringe-

ment or emulating the SAS programbehavior, copying the SAS language,and reproducing SAS data ormats.

WPL argued that none o these aspects

o the SAS system was within the scopeo protection that copyright provides to

computer programs. WPL won beore

the U.K. High Court, but the court re-

erred the legal issues presented by thecase to the ECJ or its interpretation.

cpyrgt Prgrm Bvr?

SASs lawyer has argued that the de-tailed design o the unctionality o the

SAS programs is part o the SSO o theSAS programs, and as such, part o the

expression that copyright law protects.

Behavior is the intellectual creation oSAS, and a very substantial quantum

o skill, labor, and judgment went into

the design o the SAS program behav-

iors. A major goal o the European Di-rective on the Legal Protection o Com-

puter Programs, the SAS lawyer noted,

was to protect developers investments

in sotware. Allowing competitors toemulate a successul programs behav-

ior would, he argued, undermine thefrst developers opportunity to recoup

these investments.

High Court Justice Arnold did notfnd SASs argument persuasive. Al-

though accepting that copyright pro-

tection extended to program source

and object code, as well as to the ar-chitectural design o program inter-

nals and internal SSO, Justice Arnold

stated that copyright did not extend

to the unctions that programs per-ormed. The SAS program behavior

consisted, in his view, o procedures,methods o operation, and math-

ematical concepts that U.K. law, con-

sistent with European treaty obliga-tions, deemed to be outside the scope

o copyright protection.

In Justice Arnolds view, [w]hat

is protected by copyright in a literarywork is the skill, judgment, and labor

in devising the orm o expression o

the literary work, not the skill, judg-ment, and labor required to devise

ideas, procedures, methods o opera-

tion, and mathematical concepts that

may be embodied in programs. This

meant that WPL was ree to copy theprocedures, methods, and mathemati-

cal elements o the SAS programs.The WPL decision relied quite heav-

ily on an earlier U.K. High Court deci-

sion rendered by Justice Pumfrey, anexperienced programmer, in the Navi-

taire v. easyJetcase. Navitaire had devel-

oped an airline reservation program.

easyJet had been one of Navitaireslicensees until it decided to commis-

sion the development of a drop-in re-

placement program that would acceptthe same commands and produce the

same results as Navitaires software.As in the SAS v. WPL case, Navitaire

sued easyJet or inringement and ar-

gued that program behavior was pro-tectable by copyright law. Justice Pum-

rey stated that a ruling in Navitaires

avor would be an unjustifable exten-

sion o copyright protection. Justice Ar-nold agreed with the reasoning inNavi-taire that program unctionality was not

protectable by copyright law. Yet, he wassufciently unsure o his interpretation

o the European Sotware Directive that

he reerred this question to the ECJ.

cpyrgt Prgrmmg

Lgg d Dt rmt?The programming language issue was

difcult or both parties because o an

ambiguity in the European SotwareDirective. It states that programming

languages may be among the aspects

o program-related innovations that

should be considered ideas and prin-ciples that copyright law does not pro-

tect. But the Directive does not exclude

them rom copyright protection alto-

gether, but rather coyly indicates that

to the extent that programming lan-guages are ideas and principles, they

are not protected by copyright law.

SASs lawyer argued that the itali-cized phrase meant that programming

languages were not automatically ex-

cluded rom copyright protection, butcould be protected against some typeso appropriations. SASs expert witness

opined that the SAS language was not

actually a programming language with-in the standard IEEE defnition o that

term, but rather a domain-specifc lan-

guage that was more like a commandlanguage, which SASs lawyer argued

would be protectable by copyright law.

WPLs expert witness testifed thatthe SAS language was a programming

language as that term is ordinar-ily understood in the computing feld.

He challenged as unsound the chartthrough which SASs expert tried to dis-

tinguish among dierent types o pro-

gramming languages.Justice Arnold ound the WPL ex-

perts opinion to be more persuasive

and more consistent with his under-standing o the intent o the Sotware Di-

rective. Although concluding that WPLs

use o the SAS language was not an in-ringement o copyright either, Justice

Arnold also reerred interpretation othis aspect o the directive to the ECJ.

As or data ormats, SASs lawyer ar-gued they were protectable expression

as SSO embedded in the SAS programs.

He argued that the SAS manuals stud-ied by WPL had provided a window

into this aspect o internal program

structure, the copying o which shouldbe considered inringement.

WPL argued the SAS data ormatswere interaces whose use was neces-

sary to the interoperability o scripts

written in the SAS language with anindependently written compatibleplatorm such as WPLs. The Sotware

Directive provides that elements o

computer programs that are inter-aces essential to interoperability are

beyond the scope o copyright pro-

tection. WPLs reimplementation othese interaces was thus non-inring-

ing. Justice Arnold agreed with WPL

on this point but reerred the data or-mat/interace issue to the ECJ as well.

(SAS prevailed beore the High Court

on its claim that WPL manuals had

T prgrmmglgg wdflt r btprt b mbgty t erpstwr Drtv.

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mArCh 2012 | vol. 55 | No. 3 | coMMunicaTions o The acM 29

Calendar

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too closely paraphrased some word-

ing rom the SAS manuals. Changes to

the wording o the manuals should be

relatively easy to fx.)

Lotus v. BorlandRdx?

SAS v. WPL raises the same legal issues

as theLotus v. Borlandcase, which was

decided by a U.S. appellate court in1995. Lotus was then the dominantseller o spreadsheet programs or

use on PCs. Borland independently

developed a spreadsheet program,which provided an emulation inter-

ace through which users could con-

tinue to execute macros or commonlyexecuted sequences o unctions that

they had constructed in the Lotus

macro command language. Use othe emulation interace enabled the

Borland program to accept the sameinputs as Lotus 1-2-3 and produce the

same outputs, and hence, providedequivalent unctionality or behavior

as the Lotus program.

Borlands chie deense to Lotusclaim that Borland inringed the Lotus

copyright was that program behavior,

macro language, and the commandhierarchy that was an essential compo-

nent o the Lotus macro system, were

outside the scope o protection pro-vided by copyright law. A U.S. appellate

court ruled in Borlands avor.One judge wrote a concurring opin-

ion pointing to the lock-in eect orconsumers o Lotus position. Lotus

wanted its users to be required to ex-

ecute macros on its sotware. Borlandprovided those who had constructed

macros in the Lotus language with

an alternative platorm on which torun the macros. As long as Borland

independently created its program, it

should not be held as an inringer ocopyrights.

Since Borland and similar rulings,it has become well accepted in the U.S.

that program expression does not in-clude program unctionality, but only

what program texts say and how they

say it. Interaces are considered parto program unctionality. Courts also

recognize that reuse o command lan-

guages may be necessary or interoper-ability to occur, as in theBorlandcase.

cl

In SAS v. WPL, an English High Court

ruled that behavior is outside the

scope o protection that copyright

law provides to computer programs.

While the European Sotware Direc-tive does not say anything directly

about program unctionality or behav-

ior, it speaks o the need to fnd sub-stantial similarity in the expression oprogram ideas beore inringement is

ound. In the SAS case, as in Borland,

WPL had no access to SAS source codeor any other documentation about the

internal design o the program, which

is where program expression is to beound. So there has been no copying o

program expression.

The High Court also ruled that pro-gramming languages and interaces

were beyond the scope o SASs copy-

rights. The European Sotware Direc-tive is quite explicit that program in-teraces necessary to interoperability

and programming languages should

be among the aspects o programsthat may be unprotectable ideas and

principles.

SAS has argued that the SotwareDirective only excludes abstract ideas

rom the scope o copyright, not con-

crete innovations such as programunctionality, languages, and data or-

mats; it also argues that investment in

sotware development will be harmedby a ruling in WPLs avor. These asser-tions are incorrect.

Competition and ongoing innova-

tion in the sotware industry will bedeeply aected by the outcome o this

case beore the ECJ. Lets hope the Eu-

ropean court reaches the right conclu-sions on these important questions.

Pamela Samuelson (pam@aw.ekeey.ed) i therichad M. sheman Ditingihed Pofeo of law andInfomation at the univeity of Caifonia, bekeey.

Copyight hed y atho.

it bm wllptd tu.s. tt prgrmxpr d

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