Software Innovation At Stake in SAS Suit

From SAS's perspective, an ECJ ruling in favor of WPL will mean that no software is safe. "If you can study somebody's software and their manuals in detail, smart programmers can figure out how everything works without having to put forth the intellectual effort or invest in the thousands of man-years it might take to develop that software from scratch," SAS General Counsel John Boswell told me last week.

Unfortunately, justice will not be swift. The one thing Carter-Silk and Boswell agreed upon is that it may be two to three years before the ECJ takes up the case. That's typical in U.S. and European courts, sad to say.

The only good news is that Justice Arnold of the London High Court clearly saw that this case would surely be appealed and sent to a higher court. Rather than subject both parties to the delay of going through the British equivalent of our Supreme Court, he sent the case directly to the ECJ, which is the highest authority on such matters.

It appears this is the first case that will force a detailed interpretation of Article 5(3). Let's hope the case is reviewed sooner rather than later and that the court finds in favor of protecting intellectual property.

Make no mistake. This is not a defense of high-priced software. SAS does not have a monopoly on analytics. You have a choice. There are lower-cost alternatives to SAS software, like open-source R, that also happen to be original.

In my opinion, an ECJ ruling in favor of WPL would mean that you don't need R&D and blood, sweat and tears to start a software company. You would just need creative coders who can artfully copy what others create.

If that's the law of the land, then what motivation is left for software innovation?