back to article Euro beaks mull copyright of software features

The European Court of Justice (ECJ) should apply copyright protection to the functions of computer programs, a software company has told it, according to media reports. SAS Institute Inc claims that World Programming Ltd infringed its copyrights by developing a rival software program it designed using information published in …


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  1. Purlieu

    Well DUH

    perhaps SAS shouldn't have made their bloody manuals so bloody detailed in the first bloody place .... FAIL

  2. follicle genius

    My God!

    If this actually went through, the courts would grind to a halt and companies would be wiped out defending against all the Apple lawsuits

    1. jonathanb Silver badge

      and Xerox would get to sue Apple for copying their operating system. Copyrights live for a lot longer than patents. Ada Lovelace's copyrights have expired, but pretty much everything since then is still in copyright.

      1. tas

        Why the referral to the EC - this seems straightfoward?


        Under the Software Directive copyright protection is given to "the expression in any form of a computer program" but does not apply to "ideas and principles which underlie any element of a computer program, including those which underlie its interfaces".


        The "form" is the computer program World Programming has written or if it's done a "SAS" and made equivalently detailed manuals.

        The "ideas and principles" obviously being what the functions do and their underlying mathematics.

        So, using the above, the only source of ambiguity is from comparing World Programming's *source code* with SAS's *source code* OR WP manuals vs SAS manuals. Since both are highly likely to be closed-source outfits, the likelihood the code take identical forms is low unless its a case of industrial espionage (which is a different legal matter). Thus, are we arguing over manuals here?!

        Either not enough information is provided or this is yet another example of a completely unnecessary deferral by a UK judge under UK law to the EC ... Sometimes I wonder: do UK judges get referral fees, don't like to work hard covering all angles and further implications of a case or don't like to sign away their reputation by making firm legal commitments or what? I mean what's the worst that can happen, it gets overturned at EU level but only after *everyone* has been forced to consider all your considered judicial arguments and your name to it first?

        In short, domestic legal discovery being constantly awarded to supranational bodies is starting to get tiresome and somewhat scary.


        If the like and more of the above is inevitable, then while I've always been a fan of the EU, even excluding the Eurozone mess, stuff like this removes one more nail in my support for the UK's continuing presence in this fairly one-sided arrangement ... After all, even outside the EU, most of our trade would still continue to be with the EU and therefore with EU trade standards but we would get to cherry pick exactly what laws made sense and which did not all without having to pay the substantial costs of EU institutions, parliamentary presence, and reduced legal+social sovereignty.

        Apologies if I've offended anyone's IT sensibilities!


  3. Ian Yates
    Thumb Down

    Good work

    It's exactly these sorts of ill-thought ideas that will destroy independent developers.

    1. Vic

      Re: Good work

      > It's independent developers.

      With a bit of luck, it's exactly these sorts of ill-thought ideas that will destroy software patents.

      Yes, yes, I know. I'm an optimist, alright?


  4. Anonymous Coward
    Anonymous Coward


    so I could copyright the function of moving a mouse pointer, or drawing primitive shapes on a screen or indeed the output to a screen at all.

    Seems to me that this could easily prevent any development AT ALL. Very few things done by programmers are truly unique.

    This seems to be like copyrighting bricks and mortar to me.

    1. Anonymous Coward
      Anonymous Coward

      This is an interesting observation: "This seems to be like copyrighting bricks and mortar to me."

      Well surely the first person to "invent" a modern day brick could patent it?

      A new way of software functioning is analogous to that in that someone has made something no one else has done yet. Why is one patentable but the other not?

      Inventing a new transistor would allow you a patent and thus a limited monopoly on that to make a profit but this does not exist with software, you just have copyright. But it is very hard to prove that someone copied your code as there are not that many way to write the same code efficiently.

      On another note why can someone take several products to make a new product and then patent that? In software you then lose the small amount of copyright protection to do the same thing because it is not your code. Even though you have created a new product by combining others (licensed of course) you have no protection from people that copy your idea.

      IANAL and Software patents are dangerous waters and I don't want to see the EU go the way of the US but why not a limited protection, say 5 years. This would give the "inventor" time to capitalise on the idea but not lock out people that wanted to do the same thing a different way and make sure that broad ranging things cannot even be considered.

      1. burnard

        You've missed the point my friend.

        "Inventing a new transistor would allow you a patent " Yes, you are correct, But your argument makes no sense. The patent arguement is about the conept of the transistor. Not patenting the actual invention.

        The patent in the article would be saying "I patent the idea of a semi-conducting switch", not "I have invented a new type of transistor and I am protecting my invention".

    2. BristolBachelor Gold badge

      RE: OMG

      Even better than that, I'd love to be the company that was the first to do accounts in software...

      "Sorry but doing accounts in software is copyrighted. Pay us lots of money, or use an abacus"

  5. Antony King

    a about f

    Can we start using IP to protect the _solution_ instead of the problem please. This is all getting far too silly.

  6. Eponymous Cowherd

    Bad idea.

    Seriously bad idea.

    This is just software patents by the back door.

    In fact, when you consider the difference in rights afforded to a copyright holder compared to a patent holder, this is *worse* than software patents.

  7. Raumkraut

    Strengthen copyright; strengthen the GPL

    Wouldn't this mean that if a feature first appeared in a GPL'd product, any subsequent implementation would have to be removed, or be bound be the GPL? And due to the nature of the licence, the entire work may have to be made GPL, which would makes any new features it has GPL, so any _subsequent_ work would have to be GPL... I wonder how many proprietary software companies might have a problem with that...

    It's still like extending copyright to cover "protagonists called Harry" though. :(

  8. Anonymous Coward
    Anonymous Coward


    "If the manuals are, as SAS apparently claim, so detailed that they contain an expression of the way SAS's software product is put together and, in this case, give the World Programming designers sufficient insight into how SAS' software has been designed, I can see the ECJ allowing the High Court to find in favour of SAS on the particular facts,"

    So any developer of a software product just has to ensure that they provide a detailed set of manuals in order to be able to kill the potential competition with litigation?

    1. CD001


      So any developer of a software product just has to ensure that they provide a detailed set of manuals in order to be able to kill the potential competition with litigation?


      Which might not be an entirely bad thing ... have you seen some of the API documentation out there? ;)

  9. burnard

    It's not the what but the how...

    You cannot copyright a program function, that is just ridiculous. Your IP is what you invented, which is the how not the what.

    If this goes through then where will it end? Who's web browser will be the only choice, as they all browse the web and that is a program function.

    It's all well and good saying "I want my program to do this" but the person who makes the money is the person that works out how it does it.

    You can't copyright an idea. If we can I will copyright a ton of things...I have an idea now in fact, no idea how to do it, but I have the idea.

    1. Vic

      Re: It's not the what but the how.

      > If we can I will copyright a ton of things

      I'm going to copyright drinking beer. I stand to make a *fortune*...


      1. PhilipN Silver badge

        I'm gonna copyright ..

        The idea of reading and writing text from left to right across the page.

        Discount offered on licence fee for early movers. $1 for anyone who answers this post in the next 5 minutes. The switchboard is open.

  10. Anonymous Coward
    Anonymous Coward

    No Chance...

    They will get nowhere with that argument - the 'Idea / expression dichotomy' is an entrenched piece of copyright law and the ECJ is not going to overturn it here. Basically, you can copyright the expression of an idea, but you cannot copyright the underlying structures, principles, processes etc that comprise the idea. However if any of those are new and inventive then you can use patents.

    Unfortunately (and despite what most Reg readers think) the scope to patent software is quite limited by statute, so I suspect SAS and their business-method related software has few patents protecting it - hence this desperate ploy.

  11. Destroy All Monsters Silver badge

    I want names and addresses please!

    I will furnish the nailbat and my holiday time.

  12. auburnman

    Can you imagine this going through?

    Xerox would own the entire computing industry - everyone with a modern GUI would be indebted to them. Might not be a bad thing actually, you don't hear about them suing at the drop of a patent (and they'd have no-one not owned by them they could sue anyway.) With everyone on the same team, progress towards a technology fueled Utopia comes along in leaps and bounds while the lawyers go back to ambulance chasing.

    a man can dream...

    1. Belgarion

      Should I be worried...

      ...that actually makes sense!

  13. Anonymous Coward
    Anonymous Coward

    So, what's in it for us?

    As in us the live human population.

    Companies exist as legal entities at the sufference of society on the condition that having them improves efficiencies of production which benefits us (and when not allowed to go run-away they do - better than any other system so-far devised by humanity). As such, unless a corporate action, in one way or another, benefits our society it has no real reason to happen. Something that modern society seems to keep forgetting.

    Copyrights, patents,, same story. They don't exist to benefit individuals (human or corporate), but to benefit society. Again, if there is no social benefit, the privelege is anti-societial by definition and needs to be dealt with (as do the proponents of anti-societal behaviours, as humainely as reasonably practical).

    1. Alien8n

      By your logic if it's in society's "best interest" that a large corporation should steal someone else's idea then that person's rights mean squat and they should stfu and put up with the fact that they've had their idea stolen. Not that far fetched, say I invent a new technology that can be used to save lives. As I'm not a massive corporation I have to sell it for a lot of money in order to break even and invest more money in development. A big corporation could steal my idea and sell it at a much lower cost as they have the resources to plough into development and mass produce and mas market it. Clearly there's a benefit to society that my idea is stolen from me, and by your own admission you're happy that my ideas should be stolen from me.

      1. Mike VandeVelde

        By your own admission your "right" to profit is worth more than people's lives. If something saves lives, then getting that something cheaper could save more lives, who are you to tell people they deserve to die because otherwise you would be !cheated!, dying people just line up and you will save them as fast as you can and thank goodness you can set your lawyers on anyone who tries to help or else then what kind of world would we live in. Try a different analogy please.

      2. A J Stiles

        You're missing something

        If people know they are going to have their ideas stolen, they might keep their ideas to themselves. So, someone came up with the bright idea of a compromise: You get exclusive control for awhile, if and only if you promise eventually to give your ideas to the world, so everyone gets a fair chance to make use of them, once that time is up.

        Somehow, copyright and patents became subverted; from a bribe to keep creating new stuff, into a licence to claim money for doing precious little and a blunt instrument to beat people around the head with.

  14. MacGyver

    They should have been laughed at instantly. The fact they weren't scares me..

    So, I just wrote a small program to change a 1 to 0, and while I was in the middle of writing it I thought of a way to make a 0 into a 1, now I'm off to the patent office. Gee, I sure hope someone doesn't try to use my code or the way it works in any future creations.

    While they are at it, let's make it so we can patent directions and path of travel, that way I can drive to work in peace.

    Or how about my idea for a program function that display words, I'm bound to make a killing off that one.

    Don't even get me started on the my new function for adding two or more numbers together.


    Do people not think anymore?

  15. A J Stiles

    Whiskey Tango FOXTROT?

    "What a program does" is so far beyond the realm of protectable IP, it can see the curvature of the horizon.

    There's this little thing called "competition". It means, basically, not only can other people do the same thing as you do, if they want; they also get to do it better, or cheaper, if they can. That, in turn, means that you have to work harder to keep your market share.

    If what SAS's program does is so trivial that a drop-in replacement can be created simply by reading the manual, it evidently isn't all that special, is it?

  16. Anonymous Coward
    Anonymous Coward

    This would have killed the PC at birth

    by stopping clone manufacturers reimplementing the BIOS, and Seattle Computer Products reimplementing the CP/M interface in QDOS.

  17. lpopman

    titular bemusement

    Isn't this like copyrighting individual brush strokes?

  18. Purlieu


    Follow to its conclusion and ....

    "I want my program to do this"

    "Sorry but I can't write that, another program already can do that"

    "But on my platform"

    "Platform was not mentioned in the legislation, go buy an iPhone if you want that function, it's no so bigh a deal"

  19. Mike Brown

    im going to copyright FPS's. then sit back and rack it in.......

  20. steward

    So can the United States...

    copyright any manuals it has on new strategies for Olympic competition, and then challenge any medals won in the 2012 games by other countries using those techniques - on the grounds of violation of copyright?

  21. Anonymous Coward
    Anonymous Coward

    No danger

    I don't think there is any danger here.

    What the judge is effectively asking is if writing the competing software from these very detailed manuals amounts to reverse engineering.

    There is a certain amount of grey area in this regard.

    1. heyrick Silver badge

      @ skelband

      How is this grey? Following a set of documentation is not "reverse engineering" by any valid definition.

      Really, said docs should have carried a licence clause prohibiting use for derivative works, but if it did not, kindly don't cock up "copyright" any more. After last weeks extension on the duration of protection (how is twenty-thirty years of exclusive rights not enough?), any further mess and people are just going to stop giving a damn about it.

  22. DeanFox

    This way leads to chaos

    Software is the realisation of an idea. Realisations of ideas can be copyright protected ideas cannot. It would be insane to allow ideas to be copyrighted especially with respect to software. My warehousing system does what theirs does but better, trouble is they did it first.... what no competition now.

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