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Courts put software in danger with copyright confusion, says expert

OPINION: Software is at the heart of all our lives, both at work and at home. But if courts are not more careful about how they treat it, they could end up making it nearly impossible to make any new software at all. 

Recent rulings by two influential courts have thrown the way software is treated into doubt.

A US District Court judge told a jury to make its decision in a case between Oracle and Google on the assumption that connecting elements of computer programs can be copyrighted. Meanwhile Europe's highest court, the European Court of Justice (ECJ), said that some of the underlying tools used to make software could be subject to copyright protection.

These are not dry, academic disputes. If these courts' views have a significant impact on the legal position of software then it will be near-impossible for programmers to do their job.

Software copyright debates have raged for years, but a consensus has emerged that specific code can be protected, while the basic ideas behind software cannot.

What is in doubt is the status of the tools and structures used to make software, and this is where comments by the two courts could cause trouble. In each case they raise the spectre of companies being able to prevent rivals making software by potentially denying them the right to certain tools.

The tools concerned here are programming languages in which code is written; file formats in which they are organised and stored, and the structure, sequence and organisation (SSO) of pieces of code which help elements work together, called application program interfaces (APIs).

To understand how these all work together it is useful to think of a musical analogy. If you claim that someone has stolen your tune, a court will look at the sheet music for each piece of music and will analyse the notes on the page to help it come to a decision. If the dispute is about software, the court will look at the program's source code.

No court would accept that the fundamental building blocks of that sheet music belonged to it, claiming copyright over the scales, bars, time signatures and the logic behind musical notation. These are the tools that allow a composer to make new music, just as programming languages, file formats and the SSO of APIs are the tools used by programmers to make new software.

The ECJ said last month in a case involving SAS and World Programming Ltd that programming languages and file formats may be protected by copyright law. From news reports earlier this month you might be forgiven from thinking that the court ruled the opposite, but as we reported at the time the court said that programming languages and file formats could not be copyrightable ‘as expressions of computer programs' under the Software Directive, but that they may still be copyrightable under the Copyright Directive.

This would be like the same court banning one composer from using the same scale as another because one composer got there first.

The US court has done the same – at one stage telling the jury to make its decision on the assumption that APIs may be copyrightable.

If courts allow these protections, programmers will be denied the tools they need. But software companies often argue that sometimes they come up with a new tool or way of using an existing one that is so inventive, new and exciting that they should be able to stop competitors copying it.

This is right, but that doesn't mean those tools should be copyrighted. Protection already exists in the form of patent law. In Europe patent law will not protect 'computer programs as such' and nor should it. But a patent will protect industrial innovations that are inventive and new. And patent protection makes at least more sense than copyright for software-related concepts. Rather than the 70 year protection that would kill off innovation for generations, it offers a 20 year protection, but on the condition that inventors publish their work to the world to allow them to benefit from it.

The trouble with proposals to allow copyright protection is that those tools which are not inventive enough for patent protection will be given more protection than patents afford, which is hardly a reward for innovation.

The Android platform has encouraged competition in the mobile device market, a market previously dominated by Apple's almost natural monopoly. It has resulted in the creation of a follow-on apps market and the continual development of new and innovative business and personal apps. If courts remove programming languages, file formats and the SSO of APIs from the programmer's toolkit, the result favours hampering innovations, such as Android, a mobile device platform that has proven itself capable of improving competition in mobile device markets.

The purpose of copyright law is to maximise the supply, diversity and quality of creative works. Removing programming languages, file formats and the SSO of APIs from the programmer's toolkit puts in danger new and innovative products and markets.    

Luke Scanlon is a technology law expert at Pinsent Masons, the law firm behind Out-Law.com

Editor's note 16/5/12: this story was updated to clarify some details about the ECJ ruling in the SAS/WPL case.

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