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The judgement

The judge was clearly aware of this. The conclusions to his judgement – an extremely well-written and intelligent analysis that is well-worth reading if you have time, since it is likely to become a key case – make clear that he himself had few doubts that the ideas underlying the programs were not protected by copyright. However, because of the importance of the ruling, he nonetheless referred several key aspects of the case to the European Court of Justice for what he presumably hoped would be confirmation of his interpretations:

i) Although I am not persuaded that Pumfrey J was wrong to conclude in Navitaire that, on the true interpretation of Article 1(2) of the Software Directive, copyright in computer programs does not protect programming languages from being copied, I agree with him that this is a question on which guidance from the ECJ is required (see paragraphs 211-218 above).

ii) Although I am not persuaded that Pumfrey J was wrong to conclude in Navitaire that, on the true interpretation of Article 1(2) of the Software Directive, copyright in computer programs does not protect interfaces from being copied where this can be achieved without decompiling the object code, I consider this is also a question on which guidance from the ECJ is required (see paragraphs 219-227 above).

iii) Although I am not persuaded that Pumfrey J was wrong to conclude in Navitaire that, on the true interpretation of Article 1(2) of the Software Directive, copyright in computer programs does not protect the functions of the programs from being copied, and although his decision on that point was upheld by the Court of Appeal in Nova, I consider that this is also a question on which guidance from the ECJ is required (see paragraphs 228-238 above).

iv) On the assumption that Pumfrey J's interpretation of Article 1(2) of the Software Directive was correct, WPL has not infringed SAS Institute's copyrights in the SAS Components by producing WPS (see paragraphs 245-250 above).

Indeed, the key European legislation here – the European Software DirectivePDF – seems unequivocal:

[11] Whereas, for the avoidance of doubt, it has to be made clear that only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright under this Directive. In accordance with this principle of copyright, to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under this Directive. In accordance with the legislation and jurisprudence of the Member States and the international copyright conventions, the expression of those ideas and principles is to be protected by copyright;

However, there is always legal wiggle room in such matters, so it is understandable that the judge would want his interpretation of this key distinction between ideas and expression in the field of software to be confirmed by the higher court.

Let's hope the ECJ agrees, because it seems to give open source a big helping hand in terms of re-implementing closed source programs. The basic logic of the finding is that it is not an infringement of copyright to re-implement the functions of a program with completely new code that is written without ever having looked at the original.

Indeed, there is a long and glorious tradition of doing precisely that, going right back to the creation of GNU. As Richard Stallman told me a decade ago:

“I certainly never looked at the source code of Unix. Never. I once accidentally saw a file, and when I realised it was part of Unix source code, I stopped looking at it.”

Similarly, an important moment in the evolution of Linux was when Linus decided to implement the application interfaces used in Sun's SunOS version of Unix so that he could run Unix programs on his fledgling kernel. Interestingly, he used the manual pages to do this – just as WPL did when writing its own software that could run existing programs written in the SAS programming language.

Assuming the current case's judgements are confirmed by the ECJ, free software projects aiming to mimic closed software with open code should not run afoul of copyright law. Of course, other intellectual monopolies might still be a problem. In some jurisdictions, for example, there is a tendency to extend software patents to cover even independent re-implementations of an idea (even though, theoretically, ideas themselves cannot be patented). If nothing else, that gives us yet another incentive to fight against the introduction of software patents in Europe, which would nullify much of the benefit of copyright ruling discussed here.

Follow me @glynmoody on Twitter or identi.ca. For other feature articles by Glyn Moody, please see the archive.

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