Federal Circuit May Be Poised to Consider Copyrightability of Software APIs

In 2021, the Supreme Court ruled in Google LLC v. Oracle America, Inc., a case involving allegations of infringement by Google of Oracle’s copyrights in its Java APIs, that Google’s use of the Java code constituted fair use.  In applying the fair use doctrine and skirting the issue of copyrightability, the court left many wondering whether – and under what circumstances – software APIs may be afforded copyright protection in the first place. 

Another infringement suit, SAS Institute, Inc. v. World Programming Ltd., currently pending on appeal before the Federal Circuit, may provide some clarity.  The case involves the SAS language, a programming language for computational statistical analysis, that was first developed in academia and has since been dedicated to the public domain. 

SAS Institute alleges that World Programming infringed SAS’s copyrights in certain SAS Institute applications that receive SAS language inputs and produce SAS language outputs.  At issue is World Programming’s software that analyzes data in the form of SAS language inputs to generate SAS language outputs – and SAS’s allegations that World Programming designed its software as a “clone” of the SAS Institute applications by configuring the software to execute the same inputs and produce the same outputs as the SAS Institute applications. 

Copyright infringement of software generally involves either: (a) literal copying of the software’s underlying source code, or (b) copying of non-literal elements of the software, such as the structure, sequence, user interface, and organization of the software.  SAS does not allege that World Programming has literally copied the SAS Institute applications, but that the World Programming software copies the non-literal input formats and output designs of the SAS Institute applications. 

The lower court held that, after “filtering out” elements of the SAS Institute applications dedicated to the public domain or that are otherwise not copyrightable by their nature, the SAS Institute applications are not protectable by copyright.  On appeal, SAS Institute claims that the lower court improperly disregarded those elements, and argues that the overall selection and arrangement of the non-literal aspects of the SAS Institute applications are copyrightable.

Because this case likely involves mixed questions of fact and law, the Federal Circuit’s decision may not be as instructive as some have hoped on the question of copyrightability.  For example, the Federal Circuit may defer to the lower court on certain issues of fact, which may permit a prompt resolution of the dispute without consideration of applicable copyright law.  Further, because SAS Institute’s allegations of infringement involve at least some functional elements of the SAS Institute applications, it is possible that the Federal Circuit could dismiss the claims of copyright infringement altogether on the grounds that SAS Institute claims copyright in aspects of the SAS Institute applications that are protectable only by patent.

As technology and software solutions continue to become more prevalent, it is important for software developers and consumers of software products alike to understand when and how intellectual property laws may apply, and this case may provide insight on this evolving topic.