back to article Software emulation copyright case bumped to ECJ

A small software company did not infringe copyright in analytical software giant SAS's software by writing a program that emulated its functions, the High Court has provisionally ruled. The Court has asked the European Court of Justice, though, to check that its interpretation of laws based on the EU's Software Directive and …


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  1. alain williams Silver badge

    This has wide implications

    If SAS win (which it looks that they will not) then writing software to be a drop in replacement for something else would become illegal, eg no: OpenOffice (MS .doc); samba (file sharing); the various non Adobe PDF readers; ...

    The result would be a snarl up in software development where the big players would be able to wipe out competition by throwing a lawyer at them. Innovation would slow, prices would rise - bad for everyone except the large few.

    1. Anonymous Coward

      Not mention Wine, of course.

      Body not required.

  2. Destroy All Monsters Silver badge
    Thumb Up

    It's an epidemic!

    Of good sense.

    1. TeeCee Gold badge

      Not quite.

      It's a *temporary* epidemic of good sense.

      ".... but wanted the ECJ to rule on the issue."

      That'll be the same ECJ which has its strings pulled by the EU Commission which, in turn, has a hard-on for software patents.

      1. OSC


        This is the European Court of Justice. The Judiciary are independent of the Commission.

        And even looking at the Commission, you might care to read Neelie Kroes' recent statements on the role of software

        1. Anonymous Coward
          Black Helicopters

          You do like Commission wants or else!

          "This is the European Court of Justice. The Judiciary are independent of the Commission."

          At least in theory. In reality everybody do like Commission wants or else.

          Just like in all other police states.

  3. Pascal Monett Silver badge

    This is good news

    This case is shaping out to be a great improvement in the lives of developers. Copy code ? Unlawful and forbidden - normal. Copy functionality ? Lawful and allowed - great.

    After all, if functionality could not be copied, then every car maker would have to have a different steering function since only one could have a steering wheel.

    Can you imagine how awful that would end up being ?

  4. A J Stiles

    Good for competition

    There is nothing wrong with drop-in replacements and work-alikes. (Psssst ..... ever heard of GNU?) They make second-sourcing easier, and so promote healthy competition in the marketplace. It's standard practice in most sectors of industry.

    For SAS to complain is rather like Vishay trying to claim some IP right in the "10, 15, 22, 33, 47, 68" series of resistor and capacitor values.

    Harsh fact: Other people can make things that do the same job as the things you make, sell them cheaper than you and make a living doing it. Deal with it.

  5. Anonymous Coward


    If the EU has a hard-on for software patents, then it is more likely to rule against SAS and uphold that there has been no infringement:

    There is a well established distinction between patent and copyright protections known as the 'idea / expression dichotomy'; patents protect (technical and otherwise qualifying) ideas whilst copyright protects the spectific expression of pretty much any idea, whether it is a Harry Potter book or, in this case, source code.

    Therefore the ECJ is likely to say that patent eligible ideas in the SAS product could have been protected by patent law, and consequently SAS can't have two bites of the cherry by extending copyright protection beyond their literal expression of the source code.

    So - maybe legitimate software patent protection isn't so bad after all. I certainly hasn't stopped OpenOffice, Samba, PDF reader etc. and by contrast has protected a lot of startups from poaching by big corporations.. just a thought!

    /Mine's the coat made of asbestos

    1. Laurence Blunt

      The problem with software patents is two fold...

      First there is the issue of developing truly unique ideas and using them, but patents are expensive to get and to keep (ie: legal fees for both). Where as simply expressing a copyright notice in source code with the name and date is enough, you don't need lawyers until someone breaks your copyright.

      The number one real problem with patents is the bloody US patent office; who will grant patents for anything from the wheel (it was done) to things that don't even exist, and then expect everyone to fight it out in court. Also with the US legal system it nearly always works out that the team with the most cash wins.

      The one area where SAS may have a real claim is that they say some of their documentation was copied, as documents are usually copyrighted.

  6. Anonymous Coward

    US legal system was created by lawyers for lawyers to get rich

    "Also with the US legal system it nearly always works out that the team with the most cash wins."

    But of course: US legal system was created by lawyers for lawyers to make obscene amounts of money and it has served _them_ very well indeed. The US has about 50% of _worlds_ lawyers now and those parasites suck at least 10% of national gross production for nothing.

    No wonder they are bankcrupt now. (National gross debt is already _350%_ of gross production. Is there someone who believes they ever can pay that back? If there is, I've a nice bridge to sell, for scrap metal, you know.)

  7. Anonymous Coward

    Infringed its copyright?

    "SAS claimed that WPL's software infringed its copyright"

    Which is obviously bullshit and every copyright lawyer knows that: Copyright protects source code, not functionality, which means the whole meaning of litgation is to bankcrupt the smaller company. Or force them to fold.

    The persons responsible (in SAS) for this suit should be put to jail for frivolous law suits, 10 years personal sentence, no parole.

  8. Anonymous Coward
    Anonymous Coward

    So this means...

    ...if someone designs a radical new programming language they have no ownership over it? WPL have created an interpreter for SAS code but that doesnt infringe copyright because "copyright in computer programs did not protect programming languages".

    I thought Java, for example, was owned by Sun (or Oracle now). Does this ruling mean that anyone can write a Java interpreter or compiler?

    If that's the case, then it'ss quite significant since a lot of work goes into language design... seems this will ensure that new programming language development will be open source.

    1. Anonymous Coward
      Anonymous Coward

      Open source Java

      Other than Oracle's reference implementation, there's also Kaffe, and the IBM's jikes, which does the work of javac, plus gcj and classpath...

      Exactly how deeply did you look into your example?

    2. A J Stiles

      Yes, get over it

      "I thought Java, for example, was owned by Sun (or Oracle now). Does this ruling mean that anyone can write a Java interpreter or compiler?" -- yes!

      Actually, they always could, and a few people have. What they *couldn't* do would be call it "Java" without Sun/Oracle's say-so, since the Java name is a trademark.

      Anyway, you can't own a programming language. Either the published specification for the language is sufficient to enable someone else to write an interpreter / compiler from scratch, or it's incomplete. Things really are that simple. And just because something involved hard work, does not mean that you have an automatic right to earn money out of it.

      1. Anonymous Coward
        Anonymous Coward

        I was just wondering...

        ...if my interpretation was correct. So thanks for clarifying.

        And I didnt think "too deeply" about the example, it served as an illustration of the question I was asking. That's all...

      2. Anonymous Coward
        Anonymous Coward

        I was just checking... understanding. Thanks for clarifying!!

        As for my example, it was just illustrative of the question I had... didnt need that level of detail...

  9. PT

    deja vu all over again

    I wonder if SAS has ever heard of Ed Esber* and Ashton-Tate, which Esber destroyed in a similar battle over the dBase scripting language? I think they should be told.

    * They will learn little from his remarkably selective and revisionist Wikipedia bio.

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