Tuesday, May 09, 2023

Apple v. Corellium out: 11th Cir. finds copying for security research transformative

Apple v. Corellium, Inc., No. 21-12835 (11th Cir. May 8, 2023)

The Eleventh Circuit affirmed the core finding that Corellium’s copying of iOS for security research purposes was fair use, but vacated and remanded for further analysis of contributory infringement claims and claims related to the use of the icons, giving Apple another bite at, etc.

I won’t recap the whole opinion, but I do note that the court of appeals says, perhaps more explicitly than any other court, that the question is whether a transformative character may reasonably be perceived, not limiting that formulation to parody:

[T]ransformativeness does not require unanimity of purpose—or that the new work be entirely distinct—because works rarely have one purpose. In assessing whether a work is transformative, the question has always been “whether a [transformative use] may reasonably be perceived.” Campbell, 510 U.S. at 582 (emphasis added) (finding that a parody was transformative even though both a song and its parody serve the same function of entertainment). We don’t ask whether the new product’s only purpose is transformative.

We’ll see if Warhol makes that obsolete.

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