SAS Institute Inc v World Programming Ltd [2013] EWHC 69 (Ch) (25 January 2013)

i) A claim that WPL copied the manuals for the SAS System published by SAS Institute ("the SAS Manuals") when creating WPS and thereby infringed the copyright in the SAS Manuals.

ii) A claim that, by copying the SAS Manuals when creating WPS, WPL indirectly copied the programs comprising the SAS Components and thereby infringed the copyright in the SAS Components.

iii) A claim that WPL used a version of the SAS System known as the Learning Edition in contravention of the terms of its licences, and thereby both acted in breach of the relevant contracts and infringed the copyright in the Learning Edition.

iv) A claim that WPL infringed the copyright in the SAS Manuals in creating its own documentation, namely a manual ("the WPS Manual") and some "quick reference" guides ("the WPS Guides").

i) Although I was not persuaded that Pumfrey J was wrong to conclude in Navitaire Inc v easyJet Airline Co Ltd[2004] EWHC 1725 (Ch), [2006] RPC 3 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 considered that this was a question on which guidance from the CJEU was required: see [211]-[218].

ii) Although I was 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 considered that this was also a question on which guidance from the CJEU was required: see [219]-[227].

iii) Although I was 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 functionality of the programs from being copied, and although his decision on that point was upheld by the Court of Appeal in Nova Productions Ltd v Mazooma Games Ltd[2007] EWCA Civ 25, [2007] RPC 25, I considered that this was also a question on which guidance from the CJEU was required: see [228]-[238].

iv) On the assumption that Pumfrey J's interpretation of Article 1(2) of the Software Directive was correct, I held that WPL had not infringed SAS Institute's copyrights in the SAS Components by producing WPS: see [245]-[250]. In particular, I held that, although WPS reproduced elements of the SAS Language, that did not constitute an infringement of the copyrights in the SAS Components because the SAS Language was a programming language ([247]). I also held that, although WPS was able to read and write files in SAS7BDAT data file format, that did not constitute an infringement of the copyrights in the SAS Components for two reasons: first, that data file format was an interface and therefore unprotected by the copyrights in the SAS Components; and secondly, there was no evidence that WPS reproduced any part of the SAS source code in that respect ([248]).

i) WPL's use of the SAS Learning Edition fell outside the scope of the terms of the relevant licences: see [276]-[290].

ii) The interpretation of Article 5(3) of the Software Directive was another question on which guidance from the CJEU was required: see [291]-[311] and [314].

iii) On the interpretation of Article 5(3) which I favoured, WPL's use of the Learning Edition was within Article 5(3), and to the extent that the licence terms prevented this they were null and void, with the result that none of WPL's acts complained of was a breach of contract or an infringement of copyright except perhaps one: see [313]-[315] above.

i) WPL had generated a table of zip code zones and the states to which they corresponded by running a short script through the Learning Edition.

ii) There was no evidence as to how or in what form the zip code data was stored in the SAS Components. Nor was there any evidence as to who had compiled that data or from what source(s).

iii) The vast majority of the data obtained by WPL's program could not "belong" to SAS Institute because it corresponded to the official list of valid US zip codes published by the US Postal Service. The table produced by the Learning Edition was a "superset" of those zip codes, such that certain zip codes were treated as corresponding to a particular state even when they had not been officially allocated by the US Postal Service.

iv) What WPL did was to write WPS in such a way that, if a customer ran a program in WPS which involved processing zip codes, then WPS would be able to recognise not only the public domain zip codes, but also the other zip codes recognised by the SAS Components, so as to be able to produce the same output as the SAS Components.