updated 05:55 pm EST, Tue November 29, 2011
Code can be reproduced or translated by others
An Advocate General of the European Court of Justice (ECJ) has issued an opinion that the functionality of a computer program and the programming language used to create it can't be protected by copyright. This would allow the source code of a program, if certain conditions are met, be copied in order to ensure that programs work between platforms. The non-binding opinion was rendered in a complaint filed in the UK by US-based SAS Institute against World Programming Ltd, or WPL.
SAS had developed a set of programs to perform data and statistical analysis. WPL had created its own programming to augment the features of the SAS programs. To do so they emulated much of what the SAS programs were doing to make it practically similar for customers and also to access, interpret, and process data that had been stored by the customer in the SAS format. SAS brought action against WPL, alleging the company had infringed on the copyright protecting SAS's programming.
SAS didn't claim that WPL either had access to or copied its source code, however. The court hearing the case, the High Court of Justice, asked the ECJ for an opinion to help clarify the scope of EU legal protection on software.
Today, one of the court's Advocates General, Yves Bot, suggested that WPL had not violated any copyright protection. It was his view that rights covered the "literal elements" of an app, such as the source code and the object code, and anything else "expressing the creativity" of those who wrote it.
The functionality of a computer program is the service which the user expects from it, and that copyrighting the functionality alone could make it "possible to monopolize ideas," he said. A string of programming language itself couldn't, as such, be protected by copyright. "Programming language," stated Bot, is "the means which permits expression to be given, not the expression itself."
The Advocate General then went on to suggest that, subject to some constraints, WPL could reproduce the SAS code or to translate the form of the SAS data formatting code into its program in order to ensure interoperability between the SAS system and its own.
The Advocate General’s opinion is not binding on the Court of Justice. It's seen as an independent recommendation for the court to use in its own deliberations. An actual judgment will be given by the court at a later date.
A final ruling in step with the opinion could chill attempts by patent trolls, or companies that rely primarily or solely on patent lawsuit threats for their income, to spread themselves to Europe. While common in the US after the USPTO allowed software patents, such lawsuits are harder to find in Europe and could force any such claims to be limited to more deliberate instances of software copying or to hardware.