The Shifting Burdens in Computer Software Copyrightability

In SAS Inst., Inc. v. World Programming Ltd., No. 2021-1542 (April 6, 2023), the Federal Circuit affirmed a lower court ruling that SAS failed to establish copyrightability of its computer software’s claimed elements after World Programing Limited (“WPL”) successfully established that a substantial portion of the allegedly infringed elements are not protectable by copyright, shifting the burden back to SAS. The decision further held that, after this burden shift, SAS failed to provide evidence that individual elements of its software programming could survive an abstraction-filtration-comparison analysis as adopted in the Second, Fifth, and Tenth Circuits.

Typically, copyright actions are appealed to the regional circuit court of appeals, here the Fifth Circuit. This decision was appealed to the Federal Circuit instead because the plaintiff included patent infringement claims in its complaint. Even though the plaintiff appealed on only copyright issues, this granted jurisdiction to the Federal Circuit under 28 U.S.C. § 1295(a)(1). For a more detailed analysis of this case, please see Software Unfiltered: The Shifting Burdens in Computer Software Copyrightability.