EU Advocate General: You Can’t Copyright a Programming Language

In an opinion which, if affirmed by judges, would have dramatic impact on the definition of software and standards – at least in Europe if not eventually worldwide – the Advocate General in a European Court of Justice case involving U.S.-based business analytics firm SAS, has argued that the language in which computer programs are written may be exempt from copyright.

At issue: If you make a programming language that works like an existing one, have you violated copyright if you use a copyrighted manual as your guide? Have you violated copyright if you produce a manual that explains your language using terms that are similar to those in the manual you used as your guide? And finally, the big one: Is a work-alike programming language a violation of copyright in and of itself? You can just imagine the Oracle executives listening intently in the gallery.

The case in question involves SAS’s business process language, which a classical-style procedural language that financial and manufacturing institutions consider the modern-day successor to COBOL and PL/I. A London, U.K.-based company called World Programming Ltd. (WPL) built a work-alike language it calls WPS, apparently not through reverse-engineering but simply using existing SAS manuals as guides. SAS argued that this was a violation of copyright, both of the manuals and of the ABAP language itself, and besides, that WPL violated its license agreement to use SAS software.

A high court ruling in July 2010 reached only a partial conclusion: WPL probably did not violate copyright by creating the WPS language using the SAS manual, but probably did violate copyright by creating a WPS manual to teach it. The judge referred the case up the chain (as the European system permits judges to do) to the Court of Justice. There yesterday, an Advocate General (a person retained by the court to issue opinions that may guide judges in their final decisions) issued a non-binding opinion stating that a programming language should be like any other language: a means of expression that cannot, in and of itself, be claimed as intellectual property.

A statement from the Advocate General’s office in Brussels this morning reads as follows:

In the first place, with regard to the functionality of a computer program, the Advocate General defines it as the set of possibilities offered by a computer system – in other words, the service which the user expects from it.

Starting from that premise, the Advocate General considers that the functionalities of a computer program are not eligible, as such, for copyright protection. The functionalities of a computer program are in fact dictated by a specific and limited purpose. In this, they are similar to ideas. That is why there may be a number of computer programs offering the same functionalities. Thus, if it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development.

By contrast, the means for achieving the concrete expression of the functionalities of a program may be protected by copyright. Creativity, skill and inventiveness are expressed in the way in which the program is drawn up, in its writing. Thus, the way in which formulae and algorithms are arranged – like the style in which the computer program is written – will be likely to reflect the author’s own intellectual creation and therefore be eligible for protection.

In 2007, the U.S. Supreme Court reached a similar conclusion with very broad effects, in its AT&T v. Microsoft decision in favor of Microsoft: “Abstract software code is an idea without physical embodiment, and as such, it does not match [the] categorization ‘components’ amenable to ‘combination.'” That ruling indicated that the permutation of a machine plus the program used to run the machine, to do a specific set of functions, was not in and of itself subject to patent. While a function may be patentable, the way you perform that function cannot. So far, European law has coincided for the most part.

The difference in the SAS v. WPL case abroad has to do with whether the programming language constitutes the function, the expression of that function, or the means by which an expression is… expressed. These are three different things, only one of which is subject to legal protection that we know of, though perhaps two. If the judges of the Court of Justice affirm the Advocate General’s opinion, a new precedent may be set whereupon the concept of any programming language is thus, by definition, public property.

That might have a serious impact on Oracle’s case against Google, which hinges on Sun Microsystems’ acquiescence to Google’s creation of a Java work-alike virtual machine for Android. Sun’s having permitted and even publicly blessed Google’s work, were never expressed in formal, legal documents; so when Oracle acquired Sun, Oracle made the case that Google violated the patents that Oracle acquired from Sun. Granted, patents and copyrights are not to be confused with one another; patents protect a concept, while copyrights protect an expression. Still, if the expression of a concept cannot be copyrighted, it certainly is unlikely to become patented. The SAS case speaks to the problem of means of expression as worthy of legal exclusivity, and if WPL wins in London, Oracle’s case against Google may not carry much weight in Europe.

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