The recent judgment by the US Fourth Circuit Federal Court of Appeals adds little to the existing position. The court rejected outright SAS Institute’s repeated application for an injunction to prevent sale of our software in the US. Our WPS software remains non-infringing and we are free, as we always have been, to license our lawfully created software to our customers within the US and throughout the rest of the world.
We strongly dispute, and will continue to contest, the contradictory findings on breach of contract and consequent award of damages, as well as the finding that World Programming deliberately "intended" to breach the SAS Learning Edition license when it purchased this off-the-shelf product from Amazon. These findings are currently subject to further appeal.
SAS Institute chose to bring action in the UK, on both breach of contract and copyright and lost on both counts. By failing to give full faith and credit to the UK courts’ decision, the US appeals court judgment is in violation of US law and obligations under the Berne Convention. The result is two conflicting judgments on the same facts. UK courts are unlikely to recognise the conflicting US judgment.
For interested readers, the international mechanism granting copyright is governed globally by the Berne Convention, to which the US is a signatory along with most other industrial nations. Article 5 of the Berne Convention states:
"(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.
(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed." [Emphasis added.]
The text speaks for itself. SAS Institute licensed its software into the UK and received no greater or lesser right than would any UK citizen, as had already been determined by the UK courts.
The US court finding that World Programming intended to breach the licence terms relating to the licensing of a UK copyright is unwarranted and unjust. The UK courts found that World Programming acted lawfully. It is not possible to intend to act unlawfully when actions are lawful and known to be so. The US court inexplicably prevented World Programming from submitting evidence or explaining to the jury what the UK law is and why World Programming understood its actions to be lawful.
Our legal team will continue to press for a rational outcome. We have every confidence that the US court system will conclude these long-winded proceedings appropriately.