Brief of 44 Intellectual Property Law Scholars as Amici Curiae in SAS Institute Inc. v. World Programming Limited, No. 2021-1542 (Fed. Cir.)

Copyrightability is the key issue in the SAS v WPL case, in which SAS claims that WPL infringed the copyright in its statistical analysis program because of similarities in the input and output formats of the WPL program that allows users of the SAS Language to run those programs on the WPL as well as the SAS platform. The brief asks the Federal Circuit to carefully distinguish among three different meanings of “copyrightability.” A first meaning concerns whether a creation is a “work of authorship” eligible for protection as statutory subject matter. A second meaning is whether a statutorily eligible work satisfies the constitutional requirements of original authorship and fixation. A third meaning addresses whether the specific elements of a copyrighted work alleged as the basis of infringement are within the scope of protection that copyright law provides to that work. The last meaning is at issue here: whether the nonliteral elements that SAS claims WPL copied constitute copyright-protectable expression. Longstanding precedent holds that the plaintiff’s burden to prove infringement includes a burden to prove that the individual copied elements are protectable in this third sense. Although copyright registration certificates may be prima facie evidence of a work’s copyrightability in the first two senses, they are not prima facie evidence in relation to the third sense.In keeping with cases that address copyrightability in the third sense, numerous precedents recognize that software embodies many unprotectable elements and that courts must “filter” out those elements before assessing whether infringement has occurred. This is why plaintiffs carry the burden to prove the defendant copied protectable expression in this third sense of copyrightability. The abstraction-filtration-comparison (AFC) test, which the Fifth Circuit has adopted, is essential to determining which nonliteral elements of computer programs constitute protectable expression. The abstraction and filtration steps are best understood as issues of law. The filtration step excludes unprotectable elements of the plaintiff’s work so that the comparison step focuses only on whether the defendant copied a substantial quantum of protectable expression. When copyright owners fail to identify specific protectable expression as part of this step, it is proper for courts to dismiss their claims. In this case, the district court faithfully applied the AFC test. Its copyrightability hearing was an appropriate proceeding through which to assess the AFC test’s first two steps as matters of law. Because SAS failed to engage in filtration by identifying specific protectable nonliteral elements in response to WPL’s uncopyrightability evidence, the district court properly dismissed its complaint. The AFC test also advances copyright law’s constitutional purposes and creativity-enhancing objectives. Allowing second comers to emulate existing program’s functionalities and enabling compatibility on a different platform can unleash new rounds of creativity and allow users to continue to enjoy the benefits of their creations. Copyright should not be interpreted to give SAS control over a computer language so many have learned to use. Limiting the scope of copyright protection for computer programs is essential to advancing the constitutional purpose of promoting progress in keeping with the Supreme Court’s recent pronouncements in Google v. Oracle.