Article: November 2012 Copyright Litigation Update

European Court Holds Computer Programming Languages and Functionality Unprotectable: The European Court of Justice in Luxembourg recently held in SAS Institute Inc. v. World Programming Ltd., No. C-406/10 (May 2, 2012) that under the laws of the European Union, the functionality of computer programs and computer programming languages is not subject to copyright protection. SAS developed a scripting language and application for its Base SAS database program to extract data. Using commercially available SAS products, the defendant developed software capable of running scripts written in that language. The Court of Justice held that this was not copyright infringement: the European software copyright directive excludes from protection “ideas and principles which underlie any element of a computer program, including those which underlie its interfaces,” and Defendant’s effort to replicate the functionality of a computer program or the use of a programming language, did not infringe a form of protected expression.

This decision has received international attention, reflecting widespread desire for harmonization of copyright laws for protection of computer software. For example, in Oracle America, Inc. v. Google Inc., No. C 10-03561 WHA (N.D. Cal. May 31, 2012), the Northern District of California asked the parties to brief the European Court of Justice’s SAS Institute decision before ruling that the structure, sequence and organization of a Java Application Programming Interface (“API”) were not subject to copyright protection. After Oracle acquired Sun Microsystems, which owned Java-related copyrights and patents, Oracle sued Google alleging patent and copyright infringement by the Android platform. In ruling for Google, Judge Alsup held that as long as “the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API.” Further, it was irrelevant that Google had not chosen to use different method header lines and class names: “copyright protection never extends to names or short phrases as a matter of law.” Finally, the Court expressed its view that when the principles underlying patent law and copyright law clash, the patent laws should prevail; thus, even if the structure, sequence and organization of the API were the product of creative endeavor—and arguably entitled to copyright protection—providing copyright protection to these allegedly patented APIs would defeat the 20-year limitation on patent claims.