Fair use ruling in dispute over use of iOS should be upheld

In Apple v. Corellium, 19-81160, the 11th U.S. Circuit Court of Appeals will decide whether Corellium's use of Apple's iOS technologies is a fair use under copyright law. Corellium's technology enables its users to virtualize iPhones for the purpose of conducting security research on them. For instance, Corellium users can observe the iOS software executing in real-time as they select various iPhone functions and even pause that execution for more thorough inspection of possible security vulnerabilities. Many have hailed Corellium's platform as a game-changer. But because Corellium's platform uses portions of iOS in its operation, Apple has lampooned the product as copyright infringement and theft.

The district court sided with Corellium on the copyright infringement question. The court concluded that Corellium's use of Apple's technologies was a fair use, an important defense to copyright infringement claims. As part of its fair use analysis, the court opined that Corellium's use was transformative: Its product did not merely "supersede the objects of the original," but instead put the iOS technologies to a completely different -- and socially valuable -- use. The court further found that the portions of iOS used were necessary and proportional to its transformative purpose, and that Corellium's transformative use did not harm Apple's market for iOS in a way that copyright law countenances. Indeed, though Corellium may profit from using iOS within its product, its product is not an economic substitute to Apple's -- users can't use the Corellium product to perform any of the functions everyday iPhone users would expect, including placing calls or using apps. Apple obviously doesn't agree with these conclusions, and the present appeal is the result.

The 11th Circuit would best serve copyright's constitutional purpose by upholding the district court's decision. The Constitution provides copyright's rationale in just a few short words: Copyright is intended to "promote the progress of Science and the useful Arts." While this clause may lend itself to many readings, the predominant one in the United States is utilitarian -- copyright is a tool for promoting the creation of new and useful works of authorship, with the interests of authors being secondary to that utilitarian purpose. Of course, authors' interests are often relevant to that utilitarian aim. For instance, by providing creators rights in their original works of authorship, copyright may often encourage creative activity that would not otherwise occur. Indeed, that is one of the arguments upon which Apple relies -- without the ability to stop Corellium's use, the company's incentives to continue to develop its iOS products may diminish -- or even vanish altogether.

But copyright's utilitarian purpose also sometimes requires limiting copyright holders' rights. This may be so for many reasons, but as the U.S. Supreme Court recently recognized, downstream users of copyrighted works often have much to add in the creative ecosystem. Google LLC v. Oracle America, Inc., 141 S. Ct. 1183 (2021). And if the rights of copyright owners are too ironclad, those owners often stymie productive downstream creative efforts. Hence, copyright is not an absolute right in the fruit of one's labors, and Congress and courts have long recognized important exceptions to a copyright holder's rights, all in pursuit of copyright's constitutional goal.

Fair use is one such exception to copyright owners' rights. The Supreme Court has indicated that fair use provides "breathing space within the confines of copyright" so that copyright law does not "stifle the very creativity which [copyright] is meant to foster." Copyright owners may often shun criticism or certain uses of their works, and they may often wish to use copyright to prevent them. But the Supreme Court has long recognized that such control can harm society more than help it, and courts use fair use as a means to allow others to critically examine and use the copyrighted works of others. Of course, those uses may harm the economic prospects of copyright owners in some respects. They may expose flaws or problems with the copyrighted works, for instance, and make others less likely to buy them. But courts have considered such deterrents a benefit to society, not a detriment to it.

The Apple v. Corellium case is a perfect example of these forces at play. Consistent with its "walled-garden" approach to technological innovation, Apple appears dead set on strictly controlling the use of its iOS technologies. And the company wishes to use copyright to achieve that aim. But does Apple want that control so that it can protect its legitimate copyright interests, such as fending off would-be copycats, or something else? In this instance, it appears to be "something else." Apple cannot seriously be concerned that the Corellium product displaces its iOS technologies in the marketplace, or that it enables others to do so; the Corellium product serves completely different purposes than the ones for which Apple developed those technologies. No one uses the Corellium product so as to avoid buying an iPhone for its intended, everyday purposes. Indeed, Apple makes its iOS technologies freely available, so long as one uses those technologies as Apple intends. That all suggests that Apple's copyright gambit here has nothing to do with combating piracy or a worry that Corellium's product displaces its own, and everything to do with simply maintaining control over its technologies. Perhaps it wishes that control to prevent others from more readily discovering flaws in its products. But that is not an aim of copyright law, as much as Apple may wish it to be.

Indeed, copyright is intended to serve the interests of society, not necessarily copyright owners, and allowing Corellium's use does just that. By providing an innovative new tool for researching and improving security in software, Corellium's platform takes examination and use of iOS to a whole new level, one which Apple has refused to allow and perhaps never even envisioned. Admittedly, Corellium's platform may allow for nefarious uses, too, as Apple has emphasized throughout the litigation. For instance, so-called "black-hat" researchers may use Corellium's platform to exploit iOS in ways that ultimately harm society. But copyright is not a panacea for all ills. Instead, copyright infringement doctrines focus on whether accused devices facilitate copyright infringement, not simply some form of societal harm. Corellium's platform doesn't facilitate copyright infringement -- it facilitates innovative security research. Because of this, it fits squarely within fair use's ambit and, ultimately, copyright's constitutional purpose of promoting societal progress. 