AAI has joined with 13 antitrust and intellectual property law scholars and the Stanford Law School Juelsgaard Intellectual Property and Innovation Clinic in submitting an amicus brief urging the Ninth Circuit to treat a security firm’s limited replication of Apple’s iOS operating system to conduct security research as fair use under the Copyright Act.
In Apple v. Corellium, Apple sued Corellium alleging that it infringed Apple’s copyrights in iOS and circumvented its security measures in violation of the federal Digital Millennium Copyright Act (“DMCA”). Corellium admitted to creating a “virtualized” version of iOS that its customers can use in the cloud or on-premises to conduct independent security research, but it argued that its limited copying was fair use. The district court ruled for Corellium. On appeal, Apple continues to press its copyright and DMCA claims.
The amicus brief urges the Ninth Circuit to affirm the district court and vindicate the important public interest in protecting competition reflected in the fair use doctrine. The brief explains that the fair use doctrine in copyright law threads the needle between antitrust and copyright by ensuring that copyright provides creators with necessary but limited incentives to create without unduly restraining competition. In assessing the public interest factor under fair use doctrine, courts should consider how a copyright assertion may be abused to illegitimately expand exclusive rights beyond their proper scope and into other markets.
Here, Apple’s assertion of copyright over its iOS software should not be permitted to interfere with competition in the separate markets in which Corellium operates. First, Corellium’s virtualization product furthers the public interest in facilitating independent security research. Permitting an overbroad assertion of copyright would restrain competition in the distinct security research tools market and inhibit independent researchers from conducting valuable research. Second, Corellium’s product facilitates jailbreaking, which makes it easier for iPhone app developers to test and users to access apps outside of Apple’s controlled environment. Permitting an overbroad assertion of Apple’s copyright for iOS software would block this tool from expanding competition in app testing and distribution.
The brief was written by Professor Phil Malone of the Stanford Law School Juelsgaard Intellectual Property and Innovation Clinic, with substantial assistance from students Bridget Amoako and Brendan Saunders.
