Can one company abuse the copyright over its software to block another from offering a product that makes it easier to examine security vulnerabilities in that software?
Juelsgaard Intellectual Property and Innovation Clinic (JIPIC) students Bridget Amoako ’23 and Brendan Saunders ’23 filed an amicus brief urging the U.S. Court of Appeals for the Eleventh Circuit to prevent such anticompetitive uses of copyright. JIPIC represented a distinguished group of antitrust and intellectual property law scholars—including three of the co-authors of the leading treatise covering the intersection of the two doctrines—as well as the American Antitrust Institute. Amici explained to the Eleventh Circuit that overbroad assertions of copyright unreasonably threaten competition.
The Clinic’s brief was filed in Apple Inc. v. Corellium, LLC in support of Corellium, a company whose product allows security researchers and app developers to create virtual models of the iOS software that runs on iPhones. Corellium’s product offers capabilities that are not available in Apple’s own security research and app development offerings. Those features are important for researchers who use the tool in part to identify dangerous security bugs in Apple’s software.
Researchers using Corellium’s product can also discover information that makes it easier for users to “jailbreak” their phones. Jailbreaking is a technique that allows iPhone owners to access apps outside of the Apple App Store. App developers can also use Corellium’s product to test the security of their apps.
Apple sued Corellium, arguing that Corellium’s product infringed on Apple’s copyright over iOS software. The district court sided with Corellium and found that the development and distribution of its product was protected by copyright’s fair use doctrine. Fair use allows the use of copyrighted material when certain criteria are satisfied. On appeal at the Eleventh Circuit, Apple contested the fair use finding and maintained that its copyright in iOS extended to prevent the use of its software on devices other than iPhones.
JIPIC’s brief argued that a finding of fair use in this case is necessary to protect robust competition. Copyright law grants creators a degree of control over their work in order to promote creative expression that benefits the public, while antitrust law protects competition from unreasonable restraints. Fair use threads the needle between copyright and antitrust law by ensuring the law incentivizes creation without unreasonably limiting competition.
Corellium’s product competes in the market for security research tools and facilitates competition in app testing and distribution. Allowing Apple to use its copyright over iOS software to prevent others from offering innovative products in these different markets would expand copyright’s protections beyond their proper scope and harm competition. By contrast, a finding of fair use properly limits Apple’s iOS copyright while preserving competition in these other markets.
The brief also described the harms to the public interest that would result from allowing Apple’s overbroad copyright claims in the markets where Corellium’s product operates. The Supreme Court recently discussed this very idea in its Google v. Oracle decision, where it explained that effects on the public interest should be considered in assessing whether a product qualifies for fair use.
In this case, competition in the market for security research tools ensures that independent researchers are better equipped to identify and publicize vulnerabilities in Apple’s software. Fixing these vulnerabilities is important for both national security and individual user safety. Competition in app testing and distribution also benefits the public by ensuring greater access to lower priced and better secured apps.
Antitrust and copyright law together support competition and creative expression that benefits the public. A finding of fair use in this case is essential to promote the goals of both areas of law.
Read the Clinic’s brief here.