Corellium’s iOS Virtualization Software Shielded by Fair Use, Says 11th Circuit

The 11th U.S. Circuit Court of Appeals, in a Monday opinion (docket 21-12835), upheld the finding of the Southern Florida district court when it ruled tech company Corellium was shielded by the fair use doctrine when it created virtualization software capable of running Apple’s iOS and other operating systems. In granting summary judgment for Corellium on Apple’s three copyright claims, the district court was partially right when it said Corellium’s virtualization software is “transformative,” said the 11th Circuit. “It furthers scientific progress by allowing security research into important operating systems,” it said. The district court also rightly said that iOS is “functional operating software that falls outside copyright’s core,” said the 11th Circuit. Corellium “didn’t overhelp itself to Apple’s software," and Corellium’s product doesn't "substantially harm the market for iOS or iOS derivatives,” so Apple’s own incentive to innovate remains strong, it said. The 11th Circuit remanded counts two and three of Apple’s complaint to the district court “to independently consider those claims in the first instance.” Count two alleged direct infringement of Apple’s icons and wallpapers, and count three alleged contributory infringement. The 11th Circuit ruling was a “victory” for security and fair use, said Meredith Rose, Public Knowledge senior policy counsel, in a statement. “It’s well-established in copyright law that protected works can be used, in their entirety if necessary, for the purposes of criticism, commentary, and other ‘transformative’ uses,” said Rose. The 11th Circuit rightly agreed “largely functional” software such as iOS “can be used to create new and valuable tools without running afoul of copyright law,” she said. “Independent security research -- especially regarding systems in wide use, such as iOS -- is absolutely crucial, and this kind of borrowing and transformation is what allows it to happen.”