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When it comes to software, it seems that no matter how many times a company loses on a clearly wrong copyright claim, it will soldier on—especially if it can find a path to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit is supposed to be almost entirely focused on patent cases, but a party can make sure its copyright claims are heard there too by simply including patent claims early in the litigation, and then dropping them later. In SAS v. WPL, that tactic means that a legal theory on software copyrightability that has lost in three courts across two countries will get yet another hearing. Hopefully, it will be the last, and the Federal Circuit will see this relentless opportunism for what it is.
That outcome, however correct, is far from certain. The Federal Circuit got this issue very wrong just a few years ago, in Oracle v. Google. But with the facts stacked against the plaintiff, and a simpler question simpler to decide, the Federal Circuit might get it right this time.
The parties in the case, software companies SAS Institute Inc. (SAS) and World Programming Ltd. (WPL), have been feuding for years in multiple courts in the U.S. and abroad. At the heart of the case is SAS’s effort to effectively own the SAS Language, a high-level programming language used to write programs for conducting statistical analysis. The language was developed in the 1970s at a public university and dedicated to the public domain, as was software designed to convert and execute SAS-language programs. Works in the public domain can be used by anyone without permission. That is where the original SAS language and software executing it lives.
A few years later, however, some of its developers rewrote the software and founded a for-profit company to market and sell the new version. It was alone in doing so until, yet more years later, WPL developed its own, rival software that can also convert and execute SAS-Language programs. Confronted with new competition, SAS ran to court, first in the U.K., then in North Carolina, claiming copyright infringement. It lost both times.
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