European Court of Justice Rules on Copyright Status of Computer Programming Languages and Functionality

by Proskauer - New Media & Technology
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In a jury room in San Francisco, jurors in Oracle, Inc. v. Google, Inc. have been toiling over complicated issues related to the copyrightability of the Java computer programming language, and they may well return a verdict before the ink is dry on this post. We’ll write more about that case, which the judge has dubbed “the World Series of technology litigation,” when the verdict is in. Meanwhile, the jury and the judge in Oracle v. Google have been lapped by the European Court of Justice in Luxembourg, which ruled on May 2 that, under the law of the European Union, the functionality of a computer program and computer programming language are not protected by copyright. Suffice to say for now that there are significant similarities between these two disputes. So much so, in fact, that on May 3, the judge in Oracle v. Google asked the parties to submit briefs addressing the EU Court of Justice ruling.

The dispute in SAS Institute Inc. v World Programming Ltd. Case C-406/10 (May 2, 2012) involves the SAS Language that was developed by SAS for scripts, or application programs, that are run in conjunction with SAS’s Base SAS database program to extract data. Using commercially available SAS products, World Programming developed alternative software capable of running scripts originally written in the SAS language.

SAS brought an action against World Programming in the UK, alleging that World Programming infringed its copyrights by copying SAS manuals and other components of the SAS software. Central to the case is certain provisions of the European software copyright directive, Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (OJ 1991 L 122, p. 42). The UK High Court referred issues concerning the scope of that directive to the EU Court of Justice for resolution.

The software copyright directive extends to “expression in any form of a computer program,” but it excludes “ideas and principles which underlie any element of a computer program, including those which underlie its interfaces.” The Court of Justice concluded that World Programming’s activities for the most part fall on the non-copyright side of this equation, because “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.”

The Court of Justice also ruled that a licensee of a computer program may use reverse engineering techniques to determine the program’s principles and functionality. The court referred the question of infringement resulting from the copying of the SAS manuals back to the UK court for decision under UK law, ruling that under the software copyright directive such copying “is capable of constituting an infringement.”

The entire case will now be returned to the UK High Court for decision. This ruling by the EU Court of Justice is interpretive only; it is up to the national court to implement it.

The SAS Institute v. Word Programming dispute is well-known to the parties in Oracle, Inc. v. Google, Inc., who have disagreed on its potential relevance even before the court’s May 3 order asking them for comment. See, e.g., Google, Inc.’s Copyright Liability Trial Brief (Apr. 12, 2012) and Oracle’s Brief Regarding Copyright Issues (Apr. 12, 2012).

We should learn very soon whether the result in Oracle, Inc. v. Google, Inc., will be consistent with this latest development in EU intellectual property law.

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