back to article You overstepped and infringed British sovereignty, Court of Appeal tells US in software companies' copyright battle

A $79m copyright lawsuit that spiralled into a transatlantic tug of war between UK and US judges has taken its latest step – with an appeals court preventing an American firm diverting the revenues of a British software company. Earlier this week the Court of Appeal in London made injunctions preventing SAS Institute Inc from …

  1. alain williams Silver badge

    Should WPL exit the USA ?

    If all of its income there is to be garnished by SAS there is little point in bothering.

    It will be interesting to see what SAS does. It could go after the USA side of the banks and get an order there. The bank will then have to decide which jurisdiction to obey. Remember these cases where people who left the USA as infants were persued by the USA IRS which forced banks in England to close their accounts, if not the the banks risked penalties of huge fines. IMHO this is international terrorism.

    1. BebopWeBop Silver badge

      Re: Should WPL exit the USA ?

      Yes, my sone is one of them - and duly fills out a tax return for various reasons. However, he did get a cheque on Monday for $1200 so that has made up for some of his time.

  2. Steve Davies 3 Silver badge
    Black Helicopters

    US Law applies worldwide

    in the eyes of Lawyers and Judges in the USA.

    The sooner that the rest of the world wakes up and recognises that and even passes laws specifically denying the applicability of each and every US Law in their jurisdiction the better the world will be.

    1. Irongut Silver badge

      Re: US Law applies worldwide

      The USA is an unruly toddler. They need to be made to stand in the corner facing the wall and not talk for an hour. Then if they are willing to act their age they can rejoin the class.

      1. Malcolm Weir Silver badge

        Re: US Law applies worldwide

        And the UK needs to join the US in the corner, in their case not least because of their habit of allowing libel tourism...

        Funnily enough, the USA has a law known as the SPEECH act, which specifically voids enforcement of any speech-related judgment that would have unconstitutional if sought in the US.

        So there's your model. Oh, wait, that business of only permitting compensatory, not punitive, damages is exactly the same sort of thing, enacted for the same sort of reasons!

        Meanwhile I find the US judges getting whiny about UK judges interfering with their final order amusing, because the US judges got the case precisely because SAS didn't like the final Uk/EU order...

        1. John Brown (no body) Silver badge

          Re: US Law applies worldwide

          "Meanwhile I find the US judges getting whiny about UK judges interfering with their final order amusing, because the US judges got the case precisely because SAS didn't like the final Uk/EU order..."

          Upvoted for that (I don't enough about the legal shenanigans to agree or disagree with the rest of your post)

        2. Anonymous Coward
          Anonymous Coward

          Re: US Law applies worldwide

          "Meanwhile I find the US judges getting whiny about UK judges interfering with their final order amusing, because the US judges got the case precisely because SAS didn't like the final Uk/EU order..."

          Indeed. I found it funny that the if you read the US judges' complaints, switching "American" and "British", it still made sense/was factually correct (it's almost as though the US judges forgot the initial case in the EU had happened) ...

        3. Andy J
          Boffin

          Re: US Law applies worldwide

          English and Welsh civil law has historically only ever allowed compensatory damages as the norm. Additional damages can be awarded in instances where the court feels that the defendant has behaved in a flagrant manner, and it is then up to the court to decide the level of additional damages based on the facts. The EU decided this wasn't robust enough, so when they drafted the Enforcement Directive (2004/48/EC) which applies to intellectual property cases, they included in Article 1 the statement "Those measures, procedure and remedies [ie the ones the member states had to provide for in IP cases] shall also be effective, proportionate and dissuasive ... " Many claimants/plaintiffs now regard the word dissuasive as meaning punitive and automatically ask the courts to award the additional damages even where no flagrancy has been proved. However when the UK transposed the EU Directive into UK law it only referred to "negative economic consequences" suffered by the claimant or "unjust profits" made by the defendant, as grounds which the court needed to take into account. So after 31 December we will probably see the UK courts reverting to the previous way of assessing damages, as the EU Directive will no longer need to be taken into account.

    2. rcxb Silver badge

      Re: US Law applies worldwide

      US Law applies worldwide in the eyes of Lawyers and Judges in the USA.

      It certainly applies to those businesses that maintain a presence in the US. And the EU does the same, quite happy to fine US companies for not following EU regs.

      1. Anonymous Coward
        Anonymous Coward

        Re: US Law applies worldwide

        "quite happy to fine US companies for not following EU regs"

        Or more specifically, fining the EU-domiciled child companies of American companies, for failing to abide by the laws of the countries in which they are operating. ;)

        1. rcxb Silver badge

          Re: US Law applies worldwide

          And are those fines based on the income of just the "child companies"?

          1. Sgt_Oddball Silver badge

            Re: US Law applies worldwide

            Income or profit? Things get decidedly strained when it comes to that point. Especially with regards to taxation.

            Which accounts for the GDPR regs just going "buggerit" and stating 'global'.

            At least someone is reminding the US of A that it is in fact not the world police despite what it wishes.

            (fun fact the states is in a very exclusive club of itself and Somalia as the only countries that demand taxes from earnings made outside of the country. Even if those earnings have already been taxed.)

    3. Diogenes

      Re: US Law applies worldwide

      Lots of a single country's laws apply world-wide to citizens from that country. And 'won't somebody think of the children' reasons are one of them, others include inheritance and tax.

      1. anonymous boring coward Silver badge

        Re: US Law applies worldwide

        "Lots of a single country's [sic] laws apply world-wide to citizens from that country."

        Not to the extent US applies its laws abroad to its own citizens. More specifically, the draconian tax laws that treat US citizens like serfs. So much for "land of the free".

    4. RLWatkins

      Re: US Law applies worldwide

      In a sense that's true, or the reverse is true, as courts in the US have ruled over and over the same thing they ruled in the EU: You can copyright code, but you can't copyright behavior.

      I'm baffled by this.

      What SAS institute has done is to rest on their collective laurels for a couple of decades, then complained when someone else did what they'd done.

      What makes it even more puzzling is that there are open-source stats packages which *also* do the same thing, although they are not quite so polished.

      You know the saying: Hell is full, and the dead are walking Research Triangle Park.

    5. bombastic bob Silver badge
      Unhappy

      Re: US Law applies worldwide

      "in the eyes of Lawyers and Judges in the USA."

      Maybe THEM, but not ME. Well I'm not ENRICHED by demanding that a UK (or any non-U.S.) entity comply with a U.S. judge on matters NOT specific to the U.S., and that's probably why.

      (we have a hard enough time dealing with frivolous lawsuits and legalized theft)

    6. Anonymous Coward
      Anonymous Coward

      Re: US Law applies worldwide

      It is why we specifically avoid *any* tangle with anything US related where we can help it. From a business perspective, it's now just a sue happy club lead by a sue happy frat boy who mentally hasn't left toddler age. The result is that if you're foreign, of colour or have a shred of humanity left in you you're likely to lose in court (irrespective of merit) or be milked dry by their legal system.

      Our business has no need for US customers - the few that try anyway get to talk to independent, freelance sales reps, but we do not have as much as a shed over there.

  3. Henry Wertz 1 Gold badge

    Agreed

    "The sooner that the rest of the world wakes up and recognises that and even passes laws specifically denying the applicability of each and every US Law in their jurisdiction the better the world will be."

    As a USA'ian, I fully agree. Nutjob Trump doesn't help things any, but even before that for at least several decades US courts and gov't officials seem to be unable to recognize that foreign countries are foreign, not some kind of US protectorates.

    1. Claverhouse Silver badge

      Re: Agreed

      As I've said elsewhere:

      The British and the French up to the 1930s, America now, and China futurely, could not comprehend that foreign governments were not morally obliged to implement their silly decisions on any matter; nor that their causes were not obviously the divinely approved Causes of Humanity itself.

      See also the soviets, but they generally bungled their means as a matter of course.

  4. a_yank_lurker Silver badge

    SAS is the new Erie

    SAS is engaging in shyster shopping to find a favorable 'judge' much like the Erie Railroad did in the 19th century. Reading the history of the Erie RR makes you wonder if our shysters are ever taught ethics or if they could spell it.

  5. Pascal Monett Silver badge
    Coat

    Popcorn !

    I just love it when US judges are sent back to their corner.

    And never forget : it is _not_ a good idea to upset someone in a wig. Ever.

    1. Doctor Syntax Silver badge

      Re: Popcorn !

      I was hoping the article would go on to say the UK court had found the US judges in contempt.

    2. bazza Silver badge

      Re: Popcorn !

      And never forget : it is _not_ a good idea to upset someone in a wig. Ever.

      Not even if its one's own QC, lest they cease being one's QC...

    3. Mr Army

      Re: Popcorn !

      Yes, dont upset Trump.

      1. MrDamage

        Re: Popcorn !

        Why not? I may start a betting pool on which toy he throws out of the pram next.

  6. edris90

    I respect us legal system for what it is. A collection of garbage people, abusing mechanics of law to serve their own personal interests and those that have bribed them. But ultimately to maintain their personal status with extra privilege as unquestionable super citizens.

    1. Brewster's Angle Grinder Silver badge

      For all its faults, the law stops us turning into an elected dictatorship. The law can and does constrain the government. Notable examples include the government's attempt at prorogation and the time I beat the government in court myself.

      1. Anonymous Coward
        Anonymous Coward

        For all its faults, the law stops us turning into an elected dictatorship.

        Not if the Republicans continue to support Trump in his totally ignoring of any laws and restrictions. If a Democrat had done what Trump has been allowed to do, he or she would not just be in jail - I'm betting Republicans would be looking for a way to move the trial to a state with the death penalty.

        1. Long John Baldrick

          Please see what Cuomo dir with COVID and senior ctizins

          Just because Trump my be a {insert favorite words here} he is NOT the only {insert favorite words here} politician in the USA. And he is a Democrat.

          Expecting lots of flame And down votes.

      2. Pascal Monett Silver badge

        Re: The law can and does constrain the government

        It doesn't seem to be doing much to constrain Trump at this point in time.

        It has done nothing in the past three and half years, and now that Trump has his cronies installed in every conceivable point of power, I don't think the law is going to do anything against him.

        You do remember who Bill Barr is, right ? Do you really think he's going to authorize any action against Trump ?

        I don't.

  7. Doctor Syntax Silver badge

    Often EULAs say which country's law shall apply, especially when the software is sold internationally. I wonder what this one said. If it said US law shall apply then it's odd that SAS should have gone to a UK court at all.

    1. Joe W Silver badge

      Yeah, except that this is likely either null and void or at least not enforcable. If you sell anything in the EU, EU rules apply. If you sell stuff in the US, US rules apply. See other products like cars, bike helmets, electrical appliances, food, to name but a few. Yes, things become tricky if either company has no presence in that region.

      1. Anonymous Coward
        Anonymous Coward

        What if you fly to the US to buy something, then bring it back to the EU?

        What if you visit a US-hosted website to buy a digital product, then download it to use within the EU?

        1. Anonymous Coward
          Anonymous Coward

          Well in the first instance you were in the US when you bought it so US laws apply. The second instance you're buying from the EU so it's an EU based transaction. If an American company wants to sell in the EU then they should abide by EU law.

          This stuff is realy straightforward. The people making out it's confusing have a dog in the fight. The laws of your country are the laws of your country. Doing business outside it? Abide by the external laws.

      2. Doctor Syntax Silver badge

        "If you sell anything in the EU, EU rules apply. If you sell stuff in the US, US rules apply."

        So when an international deal takes place and the seller is physically in the US and the buyer physically in the EU where does the transaction actually take place? That's why such contracts specify the law and both parties agree to it.

        "likely either null and void or at least not enforceable"

        There's nothing in the article to say that the court made such a ruling. Also such matters can differ quite a bit between consumer and business deals and this appears to be B2B.

    2. anonymous boring coward Silver badge

      EULAs are usually not worth the paper they aren't even printed upon.

  8. autisticatheist
    Mushroom

    Fifty-first state?

    Oh look, USA, people outside your borders don't have to do what you tell them! Does that hurt your sense of superiority?

    1. Peter Galbavy
      Black Helicopters

      Re: Fifty-first state?

      Hey there son! You look like you need a dose of FREEDOM!

  9. Anonymous Coward
    Anonymous Coward

    Watch Out USA...

    ...Or we'll send Parliament's Sergeant at Arms, in full regalia with halberd, to explain the situation to you...

    1. ColinPa

      Re: Watch Out USA...

      It wont work - you wont be able to take the halberd into the US. It is a lethal weapon.

      1. Andy Denton

        Re: Watch Out USA...

        That's OK, he can just nip to the nearest Walmart and acquire sufficient arms to equip a small army.

        1. phogan

          Re: Watch Out USA...

          Gun shows are what you want. Few or no checks (sadly) and a selection that extend well beyond the hunting rifles and shotguns Walmart sells.

          1. spodula

            Re: Watch Out USA...

            Mutated Anthrax... For Duck huntin'

            1. STOP_FORTH Silver badge
              Happy

              Re: Watch Out USA...

              Narwhal tusks.

  10. phogan

    I am more concerned that a judge allowed a EULA to serve as a non-compete agreement. No showing of infringement, just using the software and you are barred from the market.

    1. JassMan Silver badge

      @phogan

      totally agree. The mistake made by WPL was to not set up a shell company to buy the software copy before realising they could do the job a lot better themselves. Presumably they originally had no intention of bothering to write their own.

      This is always a problem with software. You never know have poorly it lives up to expectations until you try to use it, and by then it is too late. You can't even rely on online reviews 'cos most of the time they are just copypasted from the publishers own blurb otherwise its a journalist who sees it runs on his own pc, that it has some pretty screens and doesn't crash within the first hour of prodding. By definition they don't have access to terrabytes of easily transformed data to push in, in order to test the software to destruction.

      The big difference difference between the EU and the US is that European laws are designed to protect the customer and to create level playing fields. US laws are written to protect the vendor and help those who have the deepest pockets. OK massive overgeneralisation but most articles about legal stuff end up giving this impression.

      1. johnfbw

        Re: @phogan

        They probably thought it wasn't necessary. Samsung undoubtedly has a full set of LG, Sony and Apple phones in their labs. Oracle will probably have an SAP ERP and MS SQL departments. It is just an extreme form of market/product investigation.

        The scary thing is you can be sued if your product is similar (Samsung vs iPhone) so you basically have to buy to check it isn't!

      2. Anonymous Coward
        Anonymous Coward

        Re: @phogan

        > The big difference difference between the EU and the US is that European laws are designed to protect the customer and to create level playing fields. US laws are written to protect the vendor and help those who have the deepest pockets.

        ..which is why the rich in the UK realised they had a chance to convince enough idiots that leaving the EU would be in their best interests.

      3. Anonymous Coward
        Anonymous Coward

        Re: @phogan

        "The mistake made by WPL was to not set up a shell company to buy the software copy before realising they could do the job a lot better themselves"

        They probably took the (not unreasonable, and confirmed to be correct by the courts) approach that what they were doing was legal in the jurisdiction in which they were doing it...

        1. John Brown (no body) Silver badge

          Re: @phogan

          But not forgetting that in the US, you can protect (patent? copyright?) "business methods". So, by protecting a way of doing something, you can effectively try to protect a specific software application and stop anyone else from doing something similar. This may not actually work in practice, but if you have deep enough pockets and aggressive lawyers, you can certainly intimidate others to stop them trying, or outspend them into bankruptcy if they do try.

  11. Anonymous Coward
    Anonymous Coward

    Would be interesting....

    To see what the "negotiations" Liz Truss is sneaking through at the moment for post-Brexit UK-US trade includes regarding cases like this. Examples like TPP suggest WPL and British courts will simply have to bend the knee. Maybe SAS's best approach is simply to wait a few months.

  12. Jonathon Green
    Trollface

    I like Americans. They’re funny.

  13. Jamie Jones Silver badge

    Before all the American bashing....

    Please realise that most of the Americans who post here don't fit into this American stereotype.

    And besides? What have we to gloat about? Johnson? Brexit?

    If somehing is stupid, laugh at the system, and the actual voters, not the whole population.

    One thing I've noticed: American posters on here are much less likely to laugh at UK cockups. To our American friends.. please do... we'll laugh along with you!

    1. DCFusor Silver badge

      Re: Before all the American bashing....

      This american cheered when the judge in the DVD Jon case said "wait, DMCA isn't a law in Norway" - to the astonishment of our legal system....

  14. davyclam

    SAS

    Maybe the US company SAS has infringed the copyright of our SAS?

    Fight ! Fight ! Fight !

    1. A.P. Veening Silver badge

      Re: SAS

      The British SAS already infringed on the old European SAS (Son Altesse Serenissime).

  15. Eclectic Man

    Patentability and reach of laws

    In the UK you cannot patent 'an intellectual process', but in the USA you can. So in the USA the RSA cryptographic algorithm is patented, but in the UK it is not, and cannot be, and neither can any encryption algorithm.*

    As has been noted above, it is odd that SAS first sued in UK and EU courts rather than US courts. One can only assume that they were unaware of European legal precedents. But as for the USA believing that it's laws cover the world, they did pass an act that basically said if a country did not have an extradition treaty with the USA, then USA agents could abduct wanted people from that country legally (possession being nine points of the law). Of course even our great leader, Alexander Boris de Pfeffel Johnson was half USAn, until they wanted tax on selling his main residence, then he decided to keep the money and lose the joint citizenship.

    The real issue I have with USAn 'justice', is that it seems ALL judges are political appointees. Were you on trial in the USA and requested a judge affiliated with neither the democrats nor the Republicans they would be unable to oblige. So political corruption seems to be at the heart of the USAn system, with judges, however decent upright and honest they be ( yes, Brett Kavanaugh, I am looking at you ) beholden to a political ideology and interpretation of the law. (Not that I'm claiming the UK system is clearer or better, mind, as I don't understand it either.) Any USAn with knowledge, please, I beg you, correct me on this.

    Anyone remember Ferranti? The UK company which bought a USA company, then discovered the USAn concept of 'off balance-sheet debt'. They basically spent a lot of money buying a big debt and the USA judges decided that was ok, and Ferranti went bust, unable to service the debt that was not listed on the balance sheet, the directors of the company they 'bought' walked away with millions.

    *(OK, yes, I know that Clifford C Cocks of GCHQ found it before Rivest, Shamir and Adleman published and patented it, but the example is what I'm using here.)

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