We've been following the legal fight between SAS and World Programming Limited (WPL) for quite some time. If you don't recall, WPL essentially recreated some functionality of SAS's offering, not by copying the software itself or the source code, but basically by reading SAS's manuals about what its software did. The UK's High Court said this did not infringe, and the case got kicked up to the European Court of Justice (which has been pretty good on copyright issues lately). In the fall, the EU Advocates General recommended that the court make clear that software functionality is not subject to copyright, and it appears that's exactly what the court has now done.

In a relatively short ruling, the court points out that, while software itself may be covered by copyright, "the ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright." Basically, the EUCJ properly recognized the difference between protecting the idea (not copyrightable) and the expression (copyrightable). The court points out that actual code can still be covered, but the features generated out of that code is a different story:

As the Advocate General states in point 57 of his Opinion, to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

Also important in the discussion is whether or not the software maker could use a license agreement to effectively prohibit this. This is a question that courts have been dealing with for a while: can you effectively remove exceptions to copyright -- or can you effectively expand the power of copyright -- via an overly inclusive license agreement. Here, thankfully, the court rejects that idea:

Consequently, the owner of the copyright in a computer program may not prevent, by relying on the licensing agreement, the person who has obtained that licence from determining the ideas and principles which underlie all the elements of that program in the case where that person carries out acts which that licence permits him to perform and the acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner in that program.

[....]

It must therefore be held that the copyright in a computer program cannot be infringed where, as in the present case, the lawful acquirer of the licence did not have access to the source code of the computer program to which that licence relates, but merely studied, observed and tested that program in order to reproduce its functionality in a second program.

It's always nice to see courts getting copyright rulings right (or, at least, mostly right). It's been much rarer in the US, but it seems like the EUCJ has really been thinking a lot more carefully about copyright law lately.

Back in September, Techdirt wrote about an important case that had been passed up to the European Court of Justice. It raised some key questions about creating software that was interoperable with an existing program – whether, for example, the features of the latter were in some sense copyrightable.

Although the full Court decision won't be out until next year, one of the Court of Justice's Advocates General (there are eight of them, "to present opinions on the cases brought before the Court") has published his views on the case [pdf]:

In the first place, with regard to the functionality of a computer program, the Advocate General defines it as the set of possibilities offered by a computer system – in other words, the service which the user expects from it.

Starting from that premiss, the Advocate General considers that the functionalities of a computer program are not eligible, as such, for copyright protection. The functionalities of a computer program are in fact dictated by a specific and limited purpose. In this, they are similar to ideas. That is why there may be a number of computer programs offering the same functionalities.

That seems like common sense: the functionality of a program is just something that it can do, which is itself just an idea. The Advocate General then goes on to make a very important point:

if it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

The thing is, exactly the same could be said about software patents too. One of the problems with them is that they often concern basic programming techniques, and as such give the patent holder a monopoly on those key ideas. It's why copyright – which protects the implementation of ideas – is more appropriate than patents, since it does not block alternative ways of creating the same effect. It's also why markets like smartphones have turned into impenetrable patent thickets.

This is not the final judgment of the European Court of Justice, although the Advocate General's opinion does carry considerable weight. Moreover, even the European Court of Justice does not decide the case definitively, but merely offers its interpretation of European law. It is ultimately down to the national court in the UK to use that ruling to make its own judgment. So there's still a long way to go before this case and the issues that it raises are settled. But it's definitely off to a good start with this opinion: had the Advocate General opined differently, creating interoperable programs in Europe would have started to look a much more perilous – and expensive – undertaking.

It's also worth noting that there is a very similar case going through the courts in the US: Oracle has accused Google of infringing on its Java copyrights in much the same way that SAS accused WPL in Europe. It will be interesting to see whether the US judge agrees with the Advocate General's analysis.

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The EU Court of Justice is now considering a lawsuit between SAS and World Programming Ltd. over the extent of copyright protection in software. We wrote about this last year, when a UK court ruled against SAS, but now it's been kicked up to the EU Court of Justice. Everyone seems to agree that WPL copied a feature from a SAS product, but did so in part by looking at SAS's manual, but without access to the software itself, let alone the source code. Basically, WPL just found out about a feature, and created it on its own. It's not even quite reverse engineering (which is generally considered legal), because they didn't make it compatible with SAS's offering -- they just recreated the same basic feature.

It's hard to see how this should be copyrightable. Can you imagine just how stagnated the software industry would become if you could copyright a feature on a piece of software, such that no one else could use it? Hopefully the European Court recognizes the problems such an extreme interpretation of copyright law would create.

It's pretty widely accepted that for there to be copyright infringement of software, the actual code has to be copied. Reverse engineering is not considered infringing. However, software giant SAS is apparently challenging that view and has sued a small company, World Programming Ltd. in the UK and the US, claiming that it copied SAS manuals and source code in creating its own version of the software. The British High Court ruled last week that, while World Programming infringed on copyright in copying the manuals, and also used SAS software beyond the scope of its licensing agreement, it didn't think that reverse engineering aspects of SAS software infringed, though it sent that part of the case to the European Court of Justice to make sure that this ruling fits within the European software directive. Hopefully, the ECJ agrees. Otherwise, it could create quite a mess for anyone who reverse engineers aspects of another company's software.

Vic writes in to let us know of yet another complaint against Google's Street View offering, this time in the UK, where apparently MPs and military bosses are upset that images are available on Street View of a "secret" SAS base. They're concerned that the images even show the sign saying "British SAS." But, of course, the only way Google got these images was by driving along public roads -- meaning that anyone could have driven along those roads and seen the same damn signs and buildings. It's not like this was actually a secret base at all -- and if it was, the UK military should have done a much better job of hiding it. If Google can "accidentally" discover it this way, you have to assume that anyone who actually cares would have figured it out long ago. The complaint is that those planning an attack can view the building via Street View... but, of course, they could also just drive by and take their own images. Oh, and of course, by complaining so loudly about this, it's only attracted that much more attention to the fact that the base exists and is viewable on Google Street View.