Argument Preview

This week we are previewing two cases scheduled to be argued next week at the Federal Circuit. We are previewing these cases because they attracted amicus briefs. Today we highlight SAS Institute Inc. v. World Programming Ltd. In this copyright case, SAS Institute, Inc. appeals a decision from the Eastern District of Texas, which dismissed SAS’s claim of copyright infringement by World Programming Ltd. SAS contends the district court incorrectly analyzed a copyrighted program and excluded witness testimony. Notably, ten amicus briefs were filed in this case, six of which support SAS and four of which support WPL. This is our argument preview.

In its opening brief, SAS makes two major arguments. 

First, SAS argues “[t]he district court’s ‘copyrightability’ decision should be reversed because it incorrectly applied the filtration analysis.” SAS claims instead of requiring the defendant in a copyright infringement case “to show that what it copied is unprotectable under one or more of the limiting doctrines,” here “the district court reversed that burden: it merely required WPL to show that ‘some’ of the SAS System is not protectable expression, and without regard to whether WPL copied that material from SAS.” Also, SAS claims, the “the district court determined it could not decide the issue on summary judgment, and then, without explaining under what Federal Rule it was proceeding, it dismissed SAS’s copyright claim.” SAS contends the court should have allowed “the jury to compare the works.” SAS also argues the material “is protectable as a matter of law” because “it reflects SAS’s creative choices from an unlimited range of possibilities.” In particular, SAS contends, “the overall selection and arrangement of elements is protectable,” creating a situation where “WPL was unable to show under any limiting doctrine that what it copied is unprotectable.”

Second, SAS claims, “[t]he district court erred by excluding SAS’s witnesses’ testimony.” SAS contends witnesses were excluded for “not conduct[ing] the filtration analysis using the district court’s legally flawed approach,” which was an abuse of discretion.

In its response brief, World Programming Ltd. makes four arguments. First, it contends, “[u]nder Fifth Circuit law, plaintiffs asserting nonliteral infringement of a computer program must show protected elements were copied,” and “[a] plaintiff’s failure to filter entitles the defendant to judgment.” In this case, WPL notes, “SASII refused to filter unprotected material or even show the extent of the protected expression that remained following WPL’s showing that SASII was asserting unprotected material.” By trying to “assume protected elements were copied, without performing filtration,” SAS argues, this approach “defies Fifth Circuit law, contradicts a wealth of authority, overreads SASII’s scattershot cases, and invites gamesmanship.” Also, WPL argues, SAS’s “asserted nonliteral elements—putative ‘collections’ of ‘input formats’ and ‘output designs’—are not protected” because they are “vocabulary and syntax of a programming language that is free for anyone to use.”

Second, procedurally, WPL argues “SASII’s failures to identify its protected expression entitled WPL to judgment as a matter of law.”

Third, WPL contends, the “district court properly excluded SASII’s only technical expert under Federal Rule of Civil Procedure 26 for failing to prepare his own report and disclose critical information.”

Fourth, WPL maintains, the “district court properly enforced an agreement” with a second witness permitting him “to testify only as a fact witness about disclosed topics.”

In its reply brief, SAS reiterates its opening brief’s argument that the District Court erred in applying the established filtration process for copyrighted material. Also, SAS contends, the alternative argument made by WPL that non-literal elements are not protected material misapplies copyright law, because “a program’s copyright is not limited to its code, but extends to its nonliteral elements, including ‘input formats’ and ‘output reports.’” Lastly, SAS again argues the exclusion of two SAS witnesses was reversible error.

Amicus briefs in support of the appellant, SAS, have been filed by Mathworks Inc. and Oracle Corporation; Ralph Oman, the former Register of Copyrights; Scholars of Copyright Law; the Copyright Alliance; a group of computer scientists; and Creator’s Rights Groups.

Amicus briefs in support of the appellee, WPL, have been filed by the Computer and Communications Industry Association; 44 Intellectual Property Law Scholars; 54 Computer Scientists; Github, Inc.; and the Electronic Frontier Foundation.

This case will be argued on Thursday, January 13. We will report on developments.