UK Court Rules That Software Functionality Is Not Subject To Copyright

from the good-judgment dept

Yesterday, Mike wrote about some worrying indications that the US Appeals Court may be considering overturning a ruling that APIs aren't covered by copyright. Happily, over in Europe, there's better news. The long-running battle between SAS and World Programming Limited (WPL) over the more general issue of whether copyright covers software functionality has now been settled by the UK Court of Appeal in favor of WPL. Here's a good report on the judgment from

The Court confirmed that the way computer programs operate is not copyrightable. This is because computer program functionality is not "a form of expression" and therefore does not qualify for protection it said, ruling on a dispute involving rival software developers SAS Institute (SAS) and World Programming Limited (WPL).

"The ruling means that it will now be very difficult for software developers to challenge a competitor's software with identical functionality unless the underlying code for their software has been copied," intellectual property law expert Indradeep Bhattacharya of Pinsent Masons, the law firm behind, said. "Even the general design, program interfaces and non coding structural elements of software are not protected by copyright. It is also not an infringement to take the ideas behind a computer program from its accompanying documents such as user manuals and technical specifications, though copying non technical descriptions would still be an infringement."
As that indicates, this is a strong affirmation that reverse-engineering software is legal, provided the code itself is not copied. It confirms an earlier decision by the Court of Justice of the European Union, whose opinion had been sought by the original UK judge that heard the SAS case. This multi-layered consideration of the key issues by different courts means that the question is pretty much settled across Europe.

However, one other part of the ruling by the UK Court of Appeal may offer a way for software companies to combat reverse engineering. The licensing agreement from SAS had not made it clear that the software could only be used by one person; this allowed others to study and test SAS's software with the aim of reverse-engineering its functions. points out how software companies can make this harder in future:

"In order to try to limit who can access learning or development editions of software products, companies may want to think about restricting who is the 'lawful user' of their software," Bhattacharya said. "This can be done by entering into the licence with individual users rather than the company. Doing this would help restrict the ability of rivals to have dedicated teams of people observing, studying and testing your software to develop alternative programs."
This shows once again how contracts can be used to add restrictions beyond what copyright law dictates. It will be interesting to see if software companies try to adopt this approach, and what effect it has. Meanwhile, we can be grateful for the UK Court of Appeal's sensible ruling that will allow competition and innovation to flourish, and we must hope that the US Appeals Court follows suit.

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Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Pegr, Dec 5th, 2013 @ 3:54pm

    Tell that to Mosaic Software

    They made "The Twin", a DOS Lotus 1-2-3 work-alike. Oh, and didn't Apple get traction with copyrighted "Look-and-feel"?

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Dec 5th, 2013 @ 5:22pm


    OK, fine. Limit viewing and operating it to one person. That doesn't prevent him from describing it to someone else for an opinion or six, as long as that person doesn't have direct access to the software. Has no one ever heard of a "clean room" operation?

    The named person goes through the entire program, documents it's functions (perhaps with verbal advice from others) and a third team regenerates the functionality in their own version. Granted this probably takes longer, but ??? How do you think Award, AMI, and Phoenix got around IBM's publication of the source for it's BIOS code?

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Dec 5th, 2013 @ 6:00pm

    Can we patent way of teaching?

    In short, all programming about is writing books/articles that computers can read to teach computers how to do things.

    Can we patent a book? If we can't, why could we patent programs?

    reply to this | link to this | view in thread ]

  4. icon
    M. Alan Thomas II (profile), Dec 6th, 2013 @ 1:44am

    Code functions are not a form of expression and therefore cannot be limited by copyright.

    Code functions are a form of expression and therefore cannot be limited without a First Amendment analysis (c.f. DeCSS, the DeCSS Gallery).

    I can probably figure out how to restate the second to make a distinction between things I like and things I don't like that supports my preferences, but I'm a little tired just now.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Dec 6th, 2013 @ 1:57am

    obviously, the solicitor for SAS wasn't briefed properly by the entertainment industries or wasn't paid enough, or didn't pay the right person. this is extremely unlike the UK courts which normally go down in favour of the idiotic (hence the reference to the entertainment industries), rather than the sensible

    reply to this | link to this | view in thread ]

  6. icon
    Anonymous Howard (profile), Dec 6th, 2013 @ 3:16am

    Re: Bah!

    More to the point: Purchasing a boxed product involves agreeing to the EULA, ToS etc etc AFTER you ran the installer.

    Reverse engineering a software doesn't necessary mean you have to install it, meaning you don't have to agree to the EULA.


    reply to this | link to this | view in thread ]

  7. icon
    Lurk-a-lot (profile), Dec 6th, 2013 @ 8:26am

    I wonder how this jibes with the parliament/bus photo copyright fiasco?

    IIRC, the original infringment was in using the original photo, but even after the photo was replaced with a newly taken photo, which was judged to still infringe due to the composition (different angle, but still grey image with a red bus).

    This new judgement seems like the opposite of the photo judgement.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Dec 6th, 2013 @ 1:27pm

    Re: Can we patent way of teaching?

    You can't patent a book. You can copyright a book. You can patent a software program (which I also have some issues with, but is irrelevant to this ruling). You could, until this ruling, copyright a software program.

    In patent law, you're supposed to patent a specific method for doing something; in other words, you could patent a new and improved train, but you couldn't patent the concept of trains. In software, you can patent a specific way of solving a problem, but you can't patent the general set of solutions for that problem.

    In copyright law, you can copyright the specific words you used, but you can't patent the underlying idea you're expressing. So you can copyright a book about going to wizarding school, but other people can write different books about going to wizarding school and those books won't infringe your copyright.

    The problem that the court was addressing was that companies were using copyright as a sort of pesudo-patent. Companies would say "we made a program to do this thing, and our rival also made a program to do the same thing." The companies couldn't sue for patent infringement, because their rivals' programs would typically either be written differently (and thus non-infringing), or written in the most stupidly obvious possible way (and thus not subject to patent). So instead, companies would sue for copyright infringement, on the grounds that the contents of their software manuals were protected by copyright. Any other program with similar or identical functionality would have similar or identical language in the documentation, and thus there were copyright lawsuits over software functionality.

    The whole thing was stupid. It's stopping now. I'm glad.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Dec 6th, 2013 @ 1:34pm


    How about:

    Code functions are a form of math, and therefore cannot be limited by copyright (because you can't copyright nature).

    Code functions are a form of math, and therefore natural laws, and therefore cannot be limited by the government (because fundamental universal rules are not subject to legislation).

    In the case of DeCSS, or for that matter asymmetric-key crypography, the government was trying to block the spread of mathematical functions. It turns out that it's not possible; if the government tries to outlaw specific chunks of math, they'll lose. Every time.

    reply to this | link to this | view in thread ]

  10. icon
    Sheogorath (profile), Dec 6th, 2013 @ 8:28pm

    Re: Re: Can we patent way of teaching?

    You could, until this ruling, copyright a software program.
    Actually, you still can. It's just that before this ruling, companies were trying to copyright a program's functionality, and now they've been smacked down and told they can only copyright its code. A far better situation than in the US, where software patents do protect the way a program works.

    reply to this | link to this | view in thread ]

  11. identicon
    Phil, Dec 8th, 2013 @ 10:00am

    Functionality == API?

    You lost me. A functionality is much more general than a specific API design of a function.

    One involves much more specificity

    I'd like to say its apples and oranges but in this case it is fruits and oranges.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, Dec 8th, 2013 @ 10:42am

    Re: Bah!

    The only problem I see is the "Shrink Wrap" agreement Microsoft fought so hard to obtain. That means the act of opening the package binds you to the agreement.

    reply to this | link to this | view in thread ]

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