This website uses cookies to ensure you get the best experience. If you continue to use this site without changing your cookie settings we assume you consent to the use of cookies on this site.

find an article



intellectual property (IP)

intellectual property (IP) | 30 Apr 2021
BY André J Maré

Google has good reason to be API

The US Supreme Court has ruled that Google was entitled to use elements of Oracle’s Java application programming interface (“API”) code when building Android (the mobile operating system). This brings an end to some 10 years of litigation. The decision overruled an earlier federal court decision which held that Google’s use of the API had infringed Oracle’s copyright. There was, as you might imagine, a great deal of money at stake – if Google had lost it might have faced a damages award in the region of USD9-billion.


APIs allow programmers to access other code. In this case, the claim was that the “structure, sequence and organisation” of the Android APIs infringes Oracle’s copyright in the Java code. The litigation dealt with some 11 500 lines in Android’s codebases representing 37 separate APIs. The court made two major findings.

APIs are distinct from other forms of software

APIs allow programmers to access other codes. This makes them very different from other kinds of computer programs. The court said this: “As part of an interface, the copied lines are inherently bound together with uncopyrightable ideas … and the creation of new creative expression.”

The court went on to say this: “Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language. Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform – the Android platform – that would help achieve and popularize that objective.”

Fair use

The court held that what Google had done constituted fair use: “Google’s copying of the API to reimplement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, constituted a fair use of that material.” It went on to say this: “The upshot, in our view, is that fair use can play an important role in determining the lawful scope of a computer program copyright.”

The court was, however, keen to make it clear that this ruling was very subject-specific: “We do not overturn or modify our earlier cases involving fair use – cases for example, that involve ‘knockoff’ products, journalistic writings and parodies.”

The court went on to make the point that API code enables new creative expression, which is something that the fair-use doctrine is supposed to promote: "The upshot, in our view, is that fair use can play an important role in determining the lawful scope of a computer program copyright.”

Different perceptions

There, are, of course, two sides to every story. There was a certain amount of hyperbole in the reactions, but this doesn’t detract from the fact that this case involved very big issues.

The Google spokesman: “The Supreme Court’s clear ruling is a victory for consumers, interoperability and computer science. The decision gives legal certainty to the next generation of developers whose new products and services will benefit consumers.”

The Oracle company spokesman: “The Google platform just got bigger and market power greater – the barriers to entry higher and the ability to compete lower. They stole Java and spent a decade litigating as only a monopolist can. This behaviour is exactly why regulatory authorities around the world and in the United States are examining Google’s business practices.”

A line that may be worth remembering

Judge Breyer suggested that Oracle’s API claims were akin to claiming copyright on the QWERTY keyboard: “If you let somebody have copyright on that now, they would control all typewriters …which really has nothing to do with copyright.”

If you thought the title of this article was cheesy

Now that you know what’s been exercising the finest legal minds in the USA, we’ll end with a quick mention of what the judges of the EU’s highest court have had to contend with. Can you have copyright in food taste, more particularly a Dutch cheesy dip called Heksenkaas (witches’ cheese)? This issue arose because an “infringing” product came on the market. The answer is a definitive: non. A taste cannot enjoy copyright, but you probably didn’t need us to tell you that. We’re not sure what these two very different cases say about two of the world’s major economies!

André J Maré

IP | Executive

+27 82 440 1517