"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).
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.
