Keeping open source software free -

Keeping open source software free

The May 2nd 2012 ruling by the European Court of Justice (EUCJ) clearly excluded software functionality from the protection granted by the 1991 directive on the legal protection of computer programs. The Court also proceeded to affirm the right of the licensee to study the behavior of licensed software.

This all started with software editor SAS institute Inc. suing its competitor, World Programming limited (WPL), for implementing a solution emulating the behavior of its software, and using the same programming language, on the grounds that WPL indirectly copied SAS software by replicating its functionality. Hence, it was alleged that WPL had committed copyright infringement.

The Court asked the EUCJ, acting as the interpreter of European law, to rule on whether it was a copyright infringement to replicate the features of the software, or to create a program able to interpret and execute the same programming language, or to use the same data files as such software. The Court was also asked whether the lawful licensee of a computer program had the freedom to study and test it, to determine the ideas and principle which underlies any element thereof.

The issues at stake in this debate are huge for the software industry. Users of open source software, as well as proprietary ‘underdog’ competitors, frequently need to be able to read and write data files in formats initially designed by monopolistic vendors for their proprietary applications. Preventing them to do so would irremediably harm interoperability and cause a major blow to free competition on the European market, locking in consumers and both public and private procurement departments to those vendors.

Software is an area of endeavor where progress is incremental and innovation comes from a combination of existing ideas. If functionality was protected in this way, the very notion of progress would be cut short. Thankfully, these concerns were shared by the Court’s Advocate General. He stated: “To accept that a functionality of a computer program can be protected as such would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development.”

Regarding the protection of programming languages, he concluded that languages are “the means which permits expression to be given, not the expression itself” and that they should be excluded from protection.

Regarding the freedom to study the program, the Court ruled that the lawful licensee “is entitled, without the authorization of the owner of the copyright, to observe, study or test the functioning of that program so as to determine the ideas and principles which underlie any element of the program,” provided that no exclusive right of the copyright holder is infringed. The fact that the license prohibits this kind of act is not an issue: article 9 of the 1991 directive makes null and void any contractual provisions to the contrary.

As promoters of Free Software, we should celebrate the Court’s decision to affirm a legislation that implements an important part of Freedom #1 of the Free Software Definition. We should also be prepared that this decision could backfire at some point, with proprietary vendors further lobbying in favor of the patentability of software, in an attempt to work around the lack of protection of functionality under copyright law.

Romain Berrendonner is legal counsel for Europe at AdaCore –

1 thought on “Keeping open source software free

  1. It seems rather strange to disallow a monopoly on ideas expressed in software when ideas expressed in many other forms (eg. mechanical) can be monoploised through patents.

    Why should software be treated differently? It makes no sense. Either give software

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