Tech giants, such as Microsoft, Google, and Apple, have dominated the software industry.[1] Notably, Apple is a leading developer of heavily secured software for cellphones and computers.[2] For many years Apple’s iOS software has had the reputation of being a hard nut to crack.[3] In order to maintain that reputation, Apple takes advantage of the benefits provided under copyright law – preventing others from getting access to their software without their say-so.[4]
Copyright law provides authors and inventors the exclusive right to their creations.[5] However, this exclusivity is limited by the public’s implied license of fair use which permits reproduction of copies for criticism, comment, reporting, teaching, scholarship, or research.[6] This raises intriguing questions within the software space – does limited exclusivity mean that the software itself can be reproduced as fair use for criticism, comment, reporting, and other permissible purposes? Moreover, what is the scope of “fair use” as a defense to copyright infringement in the software context? These questions lead to serious conflicts in today’s growing technological society. On one hand, the exclusive right to one’s copyright is a fundamental aspect of the innovative process and the development of society. On the other hand, the public necessity for secure global software, which is used in everyday life, is essential. Consequently, it was precisely this conflict that has led Apple to take a stand to protect its exclusive right and software security reputation, as well as resulting in the involvement of various digital rights groups and researchers.[7]
In the U.S. District Court for the Southern District of Florida case Apple, Inc. v. Corellium, LLC, Apple sued husband-and-wife founded company, Corellium, LLC (“Corellium”) for allegedly seeking to assist software developers and security researchers by allowing Corellium users to run a virtual version of iPhone and test the iOS software integrity.[8] Apple did not view Corellium’s conduct as a service against hacker exploitation, rather as plain infringement of their rights by copying Apple’s software for purposes of sale.[9] Accordingly, Apple’s claims assert complaints of copyright infringement and violation of the Digital Millennium Copyright Act.[10] Corellium responded by asserting the affirmative defense of “fair use” and filed a Motion for Summary Judgement.[11]
District Judge Rodney Smith evaluated the applicability of the fair use defense by looking to the standard codified in Section 107 of the Copyright Act.[12] Section 107 establishes that, in order to invoke the fair use defense and overrule the exclusive right to a copyrighted work, such use of the work must be weighed against the copyright according to a combination of (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[13]
On August 18, 2021, the District Court granted Corellium’s Motion for Summary Judgement in part dismissing Apple’s copyright infringement claim (Apple’s Digital Millennium Copyright Act claim was not dismissed, but they later dropped the claim).[14] The Court concluded that Corellium’s fair use defense met the standards of Section 107 because (1) their product serves a transformative purpose, (2) the product’s public benefits outweigh Corellium’s profit motivation, (3) their conduct was proportional and necessary to achieve the transformative purpose, (4) the potential impact on the market is not significant, and (5) there was no finding of lack of good faith and fair dealings.[15]
This judgement did not sit well with Apple, who consequently filed an appeal from the summary judgement with the United States Court of Appeals for the Eleventh Circuit. This appeal sparked a lot of attention as various digital rights groups and security researchers filed a 29-page amicus brief on February 16, 2022 in support of Corellium – arguing that the use was appropriate because it was not done to exploit the copyrighted elements or substitute the work in its market.[16]
It is concerning to consider that the average person spends almost 9 years of their life on the phone, a piece of technology that is prone to being hacked.[17] Initiatives to combat these deficiencies in cellphone software security are surely matters of public necessity. Corellium does not desire to compete with Apple, nor does it repackage and sell their iOS; rather, Corellium transformed the software into a product for use in security testing.[18] The Eleventh Circuit must now evaluate whether this does fall within the doctrine of fair use or if it is indeed copyright infringement. This could present severe technological privacy implications as hacking is an issue in today’s technological world.
If the Eleventh Circuit reverses the District Court’s decision, technology giants may become the sole regulators of their customers’ privacy. There appears to be no way to vet the software of these companies without infringing the software itself in the process. Affirming the decision would likely also bring about extensive change but not in the negative. Allowing third party companies to develop exploitation-checking projects and products would likely result in major corporations, like Apple, conducting more thorough in-house screening on their software before releasing it for public use. None of this is to say that these companies do not take their security seriously. It is well known that, especially with Apple, it is an essential component in their developmental practices. Ultimately, the Eleventh Circuit’s decision on appeal is one to keep an eye on as it deals with the colliding interests of ownership digital rights and public necessity in fair use.
[1] See Mert Aktas, 8 Biggest Tech Companies of 2022, UserGuiding (Dec. 25, 2021), https://userguiding.com/blog/biggest-tech-companies/.
[2] See Robert Lemos, Apple iOS: Why it’s the most secure OS, period, InfoWorld (June 6, 2011), https://www.infoworld.com/article/2621796/apple-ios–why-it-s-the-most-secure-os–period.html.
[3] See id.
[4] See U.S. Const. art. I, § 8, cl. 8; Hailey Konnath, Apple Says Software Co. Copied ‘Everything’ In Its Devices, Law360 (Aug. 15, 2019), https://www.law360.com/articles/1189348/apple-says-software-co-copied-everything-in-its-devices.
[5] See U.S. Const. art. I, § 8, cl. 8.
[6] See Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1238 (11th Cir. 2014); see 17 U.S.C.A. § 107 (West 2018).
[7] See Konnath, supra note 4.
[8] See Tiffany Hu, Digital Rights Groups Ask 11th Circ. To Nix Apple’s IP Appeal, Law360 (Feb. 16, 2022), https://www.law360.com/ip/articles/1465816/digital-rights-groups-ask-11th-circ-to-nix-apple-s-ip-appeal.
[9] See id.
[10] See Apple, Inc. v. Corellium, LLC, 510 F. Supp. 3d 1269, 1275 (S.D. Fla. 2020).
[11] See id. at 1275-76.
[12] See id. at 1285.
[13] See 17 U.S.C.A. § 107 (West 2018).
[14] See Corellium, LLC, 510 F. Supp. 3d at 1293; see Hu, supra note 8.
[15] See Corellium, LLC, 510 F. Supp. 3d at 1286-93.
[16] See Hu, supra note 8.
[17] See Chris Holmes, 5 Ways to Limit Screentime At Bedtime, WhistleOut (Nov. 5, 2022), https://www.whistleout.com/CellPhones/Guides/5-ways-to-limit-screentime-at-bedtime#screentime.
[18] See Hu, supra note 8; see Patton, 769 F.3d at 1289 (“[T]he real “backbone” of the first factor is the “crucial” distinction between transformative use (which tends to support fair use) and non-transformative use that supersedes the original work (which cuts against it).”).