SAS is a business software giant, but their products are not well known to the public. They provide business analysis and data processing software and services. The company is very successful because it follows a model of providing not only proprietary software solutions to medium and large enterprises, but also the accompanying profitable services, such as support and training. SAS has built this empire based on a combination of proprietary code and business know-how. One of the main assets held by the company is that it has its own programming language, Base SAS. The language is also combined into separate technical elements which allow consumer interaction, this is know as the SAS Components. All of this allows the company to keep tight control on the programs it creates. While users are allowed to program using this language to fit their own needs, SAS keeps a tight leash on the know-how elements of the equation, particularly training.

World Programming (WP) is a UK software company which saw an opening in the market, it created an SAS clone (knows as WPS) which would be able to run programs coded using Base SAS and the SAS Components. It also produced manuals and other supporting materials in order to train users.

SAS sued for copyright infringement claiming that WP had directly copied SAS manual materials, and had also infringed copyright by creating its own version of the manuals. SAS also claimed breach of contract because WP had used one of SAS programs contravening the terms and conditions of the licence. The most interesting claim however was that SAS argued that WP built its own clone  using SAS manuals, therefore they had indirectly infringed copyright in SAS Components. This last claim is the most interesting from a legal standpoint because it sits at the heart of the many software copyright debates of the last two decades. What exactly is covered by copyright in software?

Let us get the easy legal questions out of the way first. Arnold J found that WP had indeed copied substantial parts of the SAS manuals. Interestingly, Arnold J also had to consider that WP had copied not only substantial parts of the manuals, but had included keywords in their own guides. This is an interesting question, do keywords get copyright protection? Arnold J thought so, but the reproduction of keywords could be considered fair dealing.

The other straightforward legal question was whether WP was in breach of contract. Arnold J found that WP was indeed in breach of some contractual clauses because it had used SAS software to perform actions that were not permitted by the licence.

This brings me to the two interesting legal questions, one deals with interoperability and the other one with what is covered by software copyright.

The interoperability question arose by the claim that WP was infringing SAS Component copyright by creating its own version of the software. In order to do this, WP had to decompile SAS code and make use of Base SAS in order to be able to produce a program that is compatible with SAS programs. It was always clear that WP never copied any SAS code directly, so was there infringement? The Computer Programs Directive 91/250/EEC, the Copyright Directive 2001/29/EC, and the UK CDPA all agree that decompilation is possible for the purposes of interoperability. Similarly, the WIPO Copyright Treaty and TRIPS agree that copyright covers only the expression of an idea, and not an idea itself. There was no doubt that WPS replicated large part of the functionality present in SAS Components, and also used Base SAS considerably in order to operate its own program. However, copyright does not protect functional aspects of software, here Arnold J cites Pomfrey J in the famous Navitaire case. Therefore, Arnold J concluded that WPS was not infringing SAS Component copyright.

The most intriguing legal question in my mind is that SAS claimed that WP had made extensive use of SAS manuals and know-how in order to produce its own software, and therefore was indirectly infringing its copyright. This seems to be one of the points that gave Arnold J some room for thought. The manuals have detailed functional instructions of how SAS Components operate, so would a product that is created by following the instructions set in the manual be infringing the copyright in that manual? Arnold J didn’t think so, but he decided to refer this and other questions to the European Court of Justice for guidance. These questions are:

• Does copyright in computer programs protect programming languages from being copied?
• Does copyright in computer programs protect interfaces from being copied where this can be achieved without decompiling the object code?
• Does copyright in computer programs protect the functions of the programs from being copied?
• Arnold J required interpretation of several articles in both the Software Programs Directive and the Copyright Directive.

So, stay tuned, this could turn out to be interesting. My only fear is that by continuing to muddy the waters of software copyright, those who advocate for software patents may have their case strengthened.

One of the main contributions of the study is that it accurately begins with the statement about the traditional negative view of the public domain as the absence of copyright. Professor Dussolier states:

“This study will keep a traditional view of the public domain, related to the subject matter not protected (or not any more) by copyright. Such a definition is primarily negative as its realm is the inverse of the scope of copyright protection.
This negative approach of the public domain prevails in most copyright regimes. It entails that if copyright is regulated and promoted, the elements of the public domain themselves are generally not subject to any rules or protection: the terms ‘public domain’ rarely appear in the provisions of the law. It is even more rare that specific rules are attached to the public domain or to its elements.”

This has indeed always been one of the most troublesome aspects of the public domain. As the importance of keeping some cultural spaces open becomes clearer, the issue of the lack of positive protection of the public domain becomes more worrying. Moreover, copyright legislation often does not define the public domain, and there are arguments that placing a work in the public domain may prove to be difficult.

The study therefore is an invaluable work bringing together the most disparate scholarship in the subject, and making an excellent effort at building the case for a positive public domain, but also sets out existing practices, including open licensing and the public domain.

This is a tour de force.

The Spanish government has responded passing a new law that will allow it to close down copyright infringing sites in an easier manner. Last year, there were suggestions that another piece of legislation would create a three-strikes regime similar to HADOPI and the Digital Economy Act, this was the Sustainable Economy Law (Ley de Economía Sostenible), but the proposed final text does not include this measure.

The question is, does Spain require new laws to begin with, or is the problem deeper? As a signatory to TRIPS, the Berne Convention, the WIPO Copyright Treaty, and as a member of the EU, one could argue that Spain should already have a legal framework capable of dealing with piracy, but this is not the case. The problem does not seem to be the law, but the lack of willingness to apply it. Repeatedly, Spanish judges have been producing rulings in favour of file-sharing sites and against copyright owners.

Time and time again, anglophone media sources comment that the current situation is caused by the Spanish culture. There is a certain tone of derision in some of the coverage, almost as if the press expects nothing else from those Mediterranean countries that lack respect for proper fiscal policies, queuing, towel management and intellectual property. The New York Times article comments that this is not such a far-fetched theory because piracy is seen as freedom to consume, which is a cultural backlash from the Franco years. There may be something to this theory. Even judges seem reluctant to interpret the law in favour of the copyright industries.

The culture of sharing seems to be entrenched in the Spanish psyche. An anti-piracy campaign with the logo reading “Against Piracy: Defend Your Culture” was immediately spoofed to produce pro-sharing slogans. “Share Your Files: Defend Your Culture”, and other similar ones (pictured above).

This is a complicated issue. If piracy is culturally entrenched, then changing the law might do little, particularly if judges continue to rebel against pro-copyright issues and refuse to apply the law in their favour.

And to conclude, here is a funny story (or depressing, if you are in in copyright maximalist camp). In 2006, SGAE , the largest collecting agency in Spain, predicted that internet piracy would be vanquished in 5 years time. They better hurry!

The portrait was painted by artist Guillermo Cubero in an undisclosed date , but the work has been owned by the National Museum of Costa Rica for the last 25 years. The Central Bank of Costa Rica is the only financial institution with permission to issue currency, and they requested the use of the portrait to the current owners, but not to the author.

This is an interesting case, at least from my perspective, as I am not entirely sure about the copyright of a paining once it has been sold, so if anyone knows what happens I would be interested to hear their opinion. If I recall correctly, copyright is transferred with the painting without the need of a further contract or licence grant. However, moral rights in Costa Rica are inalienable, so the author would still remain the right to be identified as the author of the work.

Apparently, the issue is being solved amicably, the Central Bank will call a press conference and recognise the painter. It is possible that he was not interested in the monetary aspects, but wanted to make a moral argument.

Wouldn’t it be sort of deliciously ironic if all money was infringing copyright?

While most of the content is not hosted by Newzbin, it is clear that the site does provide specific services tailored to take advantage of usenet, so it adds value to encourage subscription. The main legal question is therefore whether the service is infringing copyright. The claimants sued Newzbin arguing that it engaged in three infringing practices:

“i) authorising acts of infringement by its members;
ii) procuring, encouraging and entering into a common design with its members to infringe;
iii) communicating the claimants’ copyright works to the public, namely the defendant’s members.”

Kitchin J agreed with the claimants in a well-reasoned yet surprisingly short decision. He looked first at authorisation, and here the fact that Newzbin aggregates and provides quite a substantial editorial and added-value element was deemed important. He opined:

“98. Turning to the question of authorisation, I consider the following points are material. I begin with the nature of the relationship between the defendant and its members. Premium members enter into an agreement with the defendant which permits them to access Newzbin in consideration of a weekly payment. Thereafter these members are introduced to Newzbin as being a system which provides a searching and indexing facility and a guide to the materials available on Usenet. They are invited to explore the various indices at the level of reports in the Newzbin index or at the files level in the RAW and Condensed indices. In each case they have the option of browsing the databases directly or by using the various Newzbin subject matter categories. Focusing on the Movies category, premium members see that this category is broken down into levels of sub-category which permit them to search and browse not only by reference to the names of particular films but also, for example, by reference to genre. This is clearly a sophisticated facility. [...]
102. For all these reasons I am entirely satisfied that a reasonable member would deduce from the defendant’s activities that it purports to possess the authority to grant any required permission to copy any film that a member may choose from the Movies category on Newzbin and that the defendant has sanctioned, approved and countenanced the copying of the claimants’ films, including each of the films specifically relied upon in these proceedings. “

With regards to encouraging and entering into a common design to infringe, Kitchin J also sided with the claimants on the basis that the site was clearly engaged in secondary infringement as its main purpose was indeed to infringe copyright.

With regards to communicating the work to the public, Kitchin J says:

“In the light of Directive 2001/29/EC and the guidance provided by the ECJ in Rafael Hoteles, I believe the following matters are material to this question. The defendant has provided a service which, upon payment of a weekly subscription, enables its premium members to identify films of their choice using the Newzbin cataloguing and indexing system and then to download those films using the NZB facility, all in the way I have described in detail earlier in this judgment. This service is not remotely passive. Nor does it simply provide a link to a film of interest which is made available by a third party. To the contrary, the defendant has intervened in a highly material way to make the claimants’ films available to a new audience, that is to say its premium members. Furthermore it has done so by providing a sophisticated technical and editorial system which allows its premium members to download all the component messages of the film of their choice upon pressing a button, and so avoid days of (potentially futile) effort in seeking to gather those messages together for themselves. As a result, I have no doubt that the defendant’s premium members consider that Newzbin is making available to them the films in the Newzbin index. Moreover, the defendant has provided its service in full knowledge of the consequences of its actions. In my judgment it follows from the foregoing that the defendant has indeed made the claimants’ copyright films available to its premium members and has in that way communicated them to the public.”

As a result, Newzbin has been declared liable for direct and secondary infringement, as well as potentially getting additional damages because of flagrancy (this will be decided later, the amount is not part of the sentence). Newzbin has also been given an injunction “to restrain the defendant from infringing the claimants’ copyrights in relation to their repertoire of films”. A much wider injunction was denied (see OUT-Law for more about this part of the ruling).

This seem like a logical result given the nature of Newzbin’s services. The fact that Newzbin has both editorial function and goes out of its way to make it easy for its users to infringe was always going to count strongly against them. In my opinion, there was little that Newzbin could do to defend itself. Their strongest argument was to cite iiNet, the Australian case, but the technologies are too different, and Newzbin’s involvement too large.

This is an interesting result contrasting it with the earlier OiNK criminal case. I commented at the time that it seemed like the service was definitely infringing, but that the copyright holders had sought criminal liability instead of civil. If they had gone the civil way, the case might have looked similar to Newzbin. It is even more interesting that an uploader involved with OiNK has seen his case dropped by the Crown Prosecution Service.

There is little doubt that the statue is still under copyright. The work was designed by Brazilian engineer Heitor da Silva Costa, and it was sculpted by French sculptor Paul Landowski, who finished it in 1931. There have been questions over the years as to who owns the copyright exactly, as back in 2004 Landowski’s heirs tried to claim royalties from the admission tickets to the landmark. Landowski was working under commission from the Archdiocese of Rio de Janeiro, so it would seem it is they who own the copyright.

According to AFP, the Archdiocese handles all copyright requests for the sculpture, and it usually grants permission for 99% of suggested uses. In the case of 2012, Columbia Pictures asked for permission to use the statue in the film, but the Archdiocese did not grant it because Christ the Redeemer would be toppled by a giant wave. Thou shall not topple the Christ. The interesting aspect is that both AFP and the Hollywood Reporter claim that Columbia Pictures lawyers are adamant that they did acquire permission to use the statue in the movie, but they obtained it from Landowski’s estate, and not from the Rio Archdiocese. My guess is that Columbia’s lawyers were aware of the copyright dispute, and they decided to put their lot behind Landowski’s heirs. There may be enough of a question about ownership to dissuade the Archdiocese from pursuing the lawsuit further. I smell a settlement coming up.

A younger incarnation of yours truly infringes archdiocesan copyright

Interesting as this case might be, I have been thinking about copyright in landmarks and outdoor statues. This is not the first time such a dispute has arisen. One of the most famous cases is the 1995 film Batman Forever, where a sculpture was prominently featured 8 times throughout the film. Incidental showing of a statue or landmark should not require a licence, but lengthy exposition, or a prominent presentation of the work, should necessitate permission from the copyright owner.

Not only sculptures are subject to copyright enforcement. The Eiffel Tower is in the public domain, so the City of Paris cannot attempt to enforce copyright over it. However, the City claims copyright over the light displays at night. The Eiffel Tower’s FAQ reads:

“Q : Are we allowed to publish photos of the Eiffel Tower?
A : There are no restrictions on publishing a picture of the Tower by day. Photos taken at night when the lights are aglow are subjected to copyright laws, and fees for the right to publish must be paid to the SETE.”

This might be a way of ever-greening copyright over public domain works, but one could argue that it is a sensible way of maintaining some control over the uses of a work. Then again, one could argue that this is just a money-grabbing exercise. Is the City of Paris justified in their position? That depends on whether one considers the Eiffel Tower’s light display an art installation. If the answer is yes, then there seems to be little argument that night pictures of the Eiffel Tower do indeed carry copyright. By the way, anyone interested in copyright in art installations should read this excellent article by Molly Ann Torsen in SCRIPTed.

I am still rather amused by the current dispute regarding Christ the Redeemer, not so much because of the legal issues, but because 2012 is such a preposterous film that it does not deserve the added attention that this suit may bring.

Update: Interesting jurisdiction question for you. Take a look at this picture from The Economist. It is a British publication, could the Rio Archdiocese object? Not under UK law, but interesting nonetheless.