Back in September, Techdirt wrote
about an important case that had been passed up to the European Court of Justice. It raised some key questions about creating software that was interoperable with an existing program – whether, for example, the features of the latter were in some sense copyrightable.
Although the full Court decision won't be out until next year, one of the Court of Justice's Advocates General (there are eight of them, "to present opinions on the cases brought before the Court
") has published his views on the case [pdf
In the first place, with regard to the functionality of a computer program, the Advocate General defines it as the set of possibilities offered by a computer system – in other words, the service which the user expects from it.
Starting from that premiss, the Advocate General considers that the functionalities of a computer program are not eligible, as such, for copyright protection. The functionalities of a computer program are in fact dictated by a specific and limited purpose. In this, they are similar to ideas. That is why there may be a number of computer programs offering the same functionalities.
That seems like common sense: the functionality of a program is just something that it can do, which is itself just an idea. The Advocate General then goes on to make a very important point:
if it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.
The thing is, exactly the same could be said about software patents too. One of the problems with them is that they often concern basic programming techniques, and as such give the patent holder a monopoly on those key ideas. It's why copyright – which protects the implementation of ideas – is more appropriate than patents, since it does not block alternative ways of creating the same effect. It's also why markets like smartphones have turned into impenetrable patent thickets
This is not the final judgment of the European Court of Justice, although the Advocate General's opinion does carry considerable weight. Moreover, even the European Court of Justice does not decide the case definitively, but merely offers its interpretation of European law. It is ultimately down to the national court in the UK to use that ruling to make its own judgment. So there's still a long way to go before this case and the issues that it raises are settled. But it's definitely off to a good start with this opinion: had the Advocate General opined differently, creating interoperable programs in Europe would have started to look a much more perilous – and expensive – undertaking.
It's also worth noting that there is a very similar case going through the courts in the US: Oracle has accused Google of infringing on its Java copyrights
in much the same way that SAS accused WPL in Europe. It will be interesting to see whether the US judge agrees with the Advocate General's analysis.
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