Protection for Non-Literal Portions of Code Filtered Out by the Abstraction-Filtration-Comparison Test

SAS Institute, Inc., v. World Programming Limited, [2021-1542] (April 6, 2023), the Federal Circuit affirmed the district court’s determination that SAS failed to establish the copyrightability of its software.

SAS creates and sells a suite of software used for data access, data management, data analysis, and data presentation.  Users of the SAS System write commands in a SAS programming language .  World Programming Limited (“WPL”) created a competing system that uses the SAS programming language to allow users to complete analytics tasks.

Whether a particular component or element of a program is protected by a copyright depends on whether it qualifies as an expression of an idea, rather than the idea itself.  Other doctrines of copyright law detail what elements are not protectable, including scènes à faire elements, material in the public domain, factual material, and elements under the merger doctrine.  The literal elements of computer programs, for example: source and object codes, can be the subject of copyright protection, and as a general matter, and to varying degrees, copyright protection can extend beyond literal elements to nonliteral elements.

The appeal involves only nonliteral elements of the SAS System, i.e., those aspects that are not reduced to written code. These elements include the program architecture, structure, sequence and organization, operational modules, and user interface.  The Federal Circuit explained that using a literary novel as an analogy, the novel’s written words would be the literal elements (e.g., code) and the organization of the chapters, characters, and plot would be the nonliteral elements.  The Federal Circuit observed, that as one moves away from the literal elements to more general levels of a computer program, it becomes “more difficult” to distinguish between unprotectible ideas, processes, methods or functions, on the one hand, and copyrightable expression, on the other.

The Federal Circuit observed that the Second, Fifth, and Tenth Circuits, have adopted the abstraction-filtration comparison test, or method, to determine the scope of copyright protection for computer programs, including their nonliteral elements.  The abstraction-filtration-comparison method involves three steps: First, the court breaks down the allegedly infringed program into its constituent structural parts—abstraction. This step helps a court separate ideas and processes from expression and eliminate those portions of the work that are not eligible for protection.  Second, the court sifts out all non-protectable material—filtration.  The court examines the structural components at each level of abstraction” and “defining the scope of plaintiff’s copyright”.  Third, the trier of fact compares any remaining “core of protectable expression” with the allegedly infringing program to determine if there is in fact a substantial similarity—comparison. SAS contended that the district court legally erred in its application of the abstraction-filtration-comparison test.  The Federal Circuit rejected SAS’ argument that it satisfied its evidentiary burden once it demonstrated that the SAS System was covered by registered copyrights. The Federal Circuit also rejected SAS argument that the district court erred when it shifted the burden to SAS to establish that its asserted elements are protected by copyright law, noting that any plaintiff has to respond to any proof advanced by defendant.