Apple Inc. v. Corellium: Another Case Where Fair Use Is Not a Defense to Section 1201June 11, 2021
I’m perplexed by the District Court’s recent ruling in Apple Inc. v. Corellium, LLC that highlights an interesting tension in copyright law. A company can still violate copyright law even if a court has already found that it’s not infringing any copyright. Here’s how:
Section 1201 of the Digital Millennium Copyright Act makes it illegal to circumvent digital locks that protect copyrighted material. Simply put, if there’s a digital lock on creative works you’ve purchased, you cannot go around that lock to access the work even if you plan to do something that doesn’t actually infringe the copyright at stake. If you want to unlock Apple Music to make a remix of Arianna Grande’s “thank u, next” for a political parody about the change in administration on TikTok, even though that’s definitely a non-infringing fair use, you’ll still violate copyright law unless you get an exemption from Section 1201 first.
The dilemma arises because a particular circumvention might violate Section 1201 of the DMCA even if the purpose of the circumvention itself does not violate copyright law. In particular, this means that someone might win on fair use, but still lose a case when a digital lock is involved. It shouldn’t be this way — fair use is too important.
Which brings us back to Apple Inc. v. Corellium. Last year, Apple filed a lawsuit against Corellium, a company that created software that allows security researchers to study virtual iPhones. To do so, Corellium had to make copies of Apple’s iOS operating system. Corellium’s software was so useful that, according to court records, Apple even offered to acquire Corellium in 2018. After Corellium rejected their offer, Apple decided to sue. Corellium filed a motion to dismiss, arguing that it was allowed to copy iOS under the fair use doctrine. It argued, among other things, that the kind of research it enabled was valuable, and that people weren’t accessing virtual iPhones in the cloud instead of buying phones from Apple.
Finding these arguments compelling, Judge Rodney Smith agreed. Because copying iOS in this instance was fair use, Corellium did not infringe Apple’s intellectual property rights.
Case closed, no infringement, therefore Corellium wins and Apples loses…right? Not quite. Copyright infringement wasn’t the only claim Apple brought against Corellium. They also claimed that Corellium may have violated Section 1201 simply by gaining access to the iOS operating system in the first place. According to Judge Smith, the right to fair use is not a defense to a violation of Section 1201. His reasoning was that the DMCA targets the circumvention of digital walls guarding copyrighted material — and trafficking in circumvention tools — but does not concern itself with the use of the material after the circumvention has occurred. Basically, the court does not consider the fair use doctrine a defense to the violation of the anticircumvention provisions in Section 1201.
So why does this all matter and why do we care? The answer is simple: We are worried about freedom of expression and user rights. The Supreme Court has called the fair use doctrine a “built-in free speech safeguard” that eases the tension between Copyright Clause, which allows rightsholders to limit what people can communicate, and the First Amendment, which guarantees freedom of expression. Later, Section 1201 of the DMCA amended the Copyright Act of 1976, to prevent the circumvention of digital measures that safeguard access to material protected under copyright law. The adoption of Section 1201 of the DMCA increased the tension between copyright law and First Amendment, disturbing the delicate balance that the fair use doctrine helps maintain.
This is mainly because courts interpreted Section 1201 to only target the act of circumventing technological measures, not the act of copying that happens after the circumvention occurs. The first time a court adopted this approach to Section 1201 was the U.S. District Court for the Southern District of New York in the Universal City Studios, Inc. v. Reimerdes case. Then the Second Circuit followed and adopted the same interpretation to Section 1201 in the Universal City Studios, Inc. v. Corley case, and now we have the Apple Inc. v. Corellium, LLC case. If more courts keep rejecting the fair use doctrine as a defense to Section 1201 of the DMCA, the delicate balance between the First Amendment and the Copyright Clause is at risk of being disturbed. This is about more than just Corellium.
Of course, the most alarming parts of how Section 1201 can harm fair use have to do with free expression. But fair use also protects important consumer rights, such as users’ rights to access and enjoy the content they have purchased in a way that makes sense for them. If you have purchased media, you should have the right to “space shift” it to another device, for instance, even if it’s not officially supported by the seller — just like you can play a CD in any CD player, not just particular brands. (“Space-shifting” is coined by analogy to “time-shifting,” that is, recording broadcast content to play it back later.) The argument is that restrictions on circumventing locks on content prevent piracy. But these digital locks don’t stop pirates, who can bypass them easily and who already don’t care about the law. All they do is stop lawful uses that content companies might not like — maybe because they want users to pay them for things the law says they already have the right to do. Similarly, it may be the case that Apple doesn’t like it that Corellium has technology that helps researchers discover security flaws in iPhones. Maybe Apple feels like it doesn’t want security flaws to be discovered, or to control the terms of security research. But traditional copyright law does not give Apple the right to make these demands. Unfortunately, Section 1201 of the DMCA might let it get its way anyway.
About Micheline Deeik
Micheline Deeik is a Fellow at Public Knowledge, where she focuses on copyright, DMCA reform, and intellectual property reform. Micheline is an Open Society Foundations Scholar. She received her LL.M in intellectual property law from Duke University School of Law, and her Bachelor of Laws degree from Birzeit University. During her time at Duke Law, Micheline did pro bono work with ACLU at Georgia. Prior to Duke Law, Micheline worked as a researcher on issues related to the GDPR, free speech, the right to privacy, and comparative constitutional law. In her free time, Micheline enjoys watching soccer, playing video games, and meditating.