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No, your software ideas aren't copyrightable, US judge tells SAS amid its long-running feud with Brit outfit

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A US federal district court has ruled SAS cannot copyright the ideas behind its analytics software, rendering a senior judicial row over national sovereignty between the UK and America largely irrelevant.

Judge Rodney Gilstrap ruled on October 26 that SAS could not copyright the functionality, as distinct from code, of its eponymous suite as part of a long-running dispute with UK-based software firm World Programming Ltd (WPL).

What began more than a decade ago as an unremarkable copyright spat rapidly spiraled into multinational legal warfare, and was last in the headlines when irate British appeal judges accused their US counterparts of infringing British sovereignty and ruled against US-headquartered SAS.

As previously reported, WPL obtained a copy of SAS's analytics product, observed how it worked, and created a competing product using the same basic functions but not the same code. SAS sued in 2010 and, after losing in the UK's courts, tried going over the heads of British judges to the EU. European judges also ruled against SAS in 2012, finding that software functionality is not subject to copyright, so SAS decided to re-run the whole case through American courts.

That bid to get World Programming done for copyright infringement failed a third time in a North Carolina federal court in late 2017. It decided that only the complaint of breach of contract could stand, not of copyright infringement, which it duly vacated. The UK court had invalidated both. The US Fourth Circuit Court of Appeals judgement [PDF] accused British judges of having "shown a lack of respect for American courts and American law" for daring to uphold its decision on the EULA (breach of contract issue) against SAS.

On the copyright infringement front, having failed thrice, SAS tried a fourth time in 2018 in the eastern district of Texas.

But District Judge Gilstrap wasn't having it, and in the latest turn in this twisting case handed down a preliminary judgment [PDF] last Monday stating: "The Court is of the opinion that the copyright claims of SAS in the above-captioned case have not been shown to be copyrightable, and therefore should be and hereby are DISMISSED WITH PREJUDICE. However, the preclusive effect of such dismissal is tailored to this case and the asserted works."

"Dismissed with prejudice" is a US legal term that bars the claim from being heard again in the same court.

The judge explained in his ruling that in software cases, US copyright law allows the copyrighting both of literal items (code) and "non-literal" items such as "structure, sequence, organization, operational modules, user interface." He explained: "SAS here alleges that WPL has copied non-literal elements, namely the SAS System's input formats, output designs, and naming and syntax."

"WPL," continued the judge, "established that at least some of the asserted works were unprotectable because they were in the public domain." These included the SAS Language itself as well as open-source elements of SAS's flagship product.

In response, SAS merely parroted its earlier claims that its software was copyrightable; something which did not impress DJ Gilstrap, who sneered at the business for "simply [having] repeated and repeated that the SAS System was 'creative'."

When it won a previous US ruling on the EULA issue against WPL in 2017, SAS tried to enforce it in the UK by applying to London's High Court for permission to legally divert WPL's UK revenues into its own pockets. Irritated British judges told the US company to stop being so cheeky, with Lord Justice Males describing US courts as having "infringed the sovereignty of the United Kingdom" by making judicial orders against WPL property in the UK that were outside their jurisdiction.

Meanwhile, in Eastern Texas last week, Judge Gilstrap said in his ruling that: "SAS’s failures have raised the untenable specter of the Court taking copyright claims to trial without any filtered showing of protectable material within the asserted work."

That trial is penciled in for January 4 next year. Judge Gilstrap asked SAS and WPL "to meet and confer" this week in light of the ruling and identify "any remaining claims" that could be tried. ®

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