Fair Use Week 2022: Day Two With Guest Expert Brandon Butler

Day two of Fair Use Week kicks off with a critical update on a case involving software, access, and fair use. UVA’s Brandon Butler reviews the arguments, and his amicus brief, for Apple Inc. v. Corellium, now at the 11th Circuit Court of Appeals.  – Kyle K. Courtney


Fair Use, Unforeseen Consequences, and the Apple v. Corellium case

by Brandon Butler

Fair Use Week is a good time to celebrate one of fair use’s most important applications: addressing unforeseen copyright barriers to important cultural activity. The importance of this kind of fair use is vividly on display in a case currently in the 11th Circuit Court of Appeals: Apple v. Corellium (Docket No. 21-12835). A key issue in the case is whether Apple’s copyright in its iOS mobile operating system software can allow it to control a new use that neither Congress nor Apple foresaw: Running the software outside of an Apple device in order to more effectively study how it works.

Corellium’s technology enables security researchers to examine how iOS works, and potentially to detect flaws and weaknesses in the system, by viewing the software in an emulated hardware environment. Apple previously tried to acquire Corellium, but when the deal fell apart, Apple accused the company of copyright infringement. Apple argued that Correllium actions – hosting copies of the iOS and making them accessible to researchers – was violating Apple’s copyright. Corellium argued its use is fair, and the trial court agreed. (I summarized that opinion in these very pages in “Apple v. Corellium: Some Early Takeaways for Software Fair Use,“ as part of Fair Use Week last year.) Apple appealed that decision to the 11th Circuit Court of Appeals in Atlanta.

Last week I filed an amicus brief in support of Corellium, on behalf of the Software Preservation Network, Library Futures Institute, the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. (ALA, ARL, and ACRL work together on copyright issues as the Library Copyright Alliance). Last year I explained the basic issues, and the upsides of the trial court’s opinion in favor of Corellium. This year I want to take a step back and talk about how we got here and why fair use plays such an important role in the future of software preservation specifically and digital preservation generally.

As computer programs grew in cultural and economic significance during the second half of the 20th Century, policymakers grappled with whether to apply copyright to these new creations. Advocates for inclusion argued that computer programs suffered from the same basic market failure issue as traditional copyright-eligible works: they are expensive to develop but easy to copy, potentially undermining the incentive to create new works. Skeptics of copyright for software (including a young law professor named Stephen Breyer) pointed out that there are many ways to address this economic problem, and that software differs from traditional copyright subject matter in important ways.

Chief among these differences: software has an essentially “utilitarian” character. Indeed, software is a machine made of text (to use the colorful metaphor favored by critics like professors Pam Samuelson and Dennis Karjala), and 99.99% of software users never read the code that comprises the protected “literary work” for copyright purposes. What matters about software is what it does, and copyright is not designed to protect that kind of value. Congress should not apply a legal system designed for expression to a new kind of creation whose main value is behavior. Or so the critics said.

The critics lost, however, and software was fully integrated into copyright law shortly after the passage of the Copyright Act of 1976. (One reason congress’s thinking was out of sync with many experts might be that the expert panel convened to advise congress on this issue did not include a single person with more than a layperson’s knowledge of software or computers. The panel’s final report confuses issues as fundamental and consequential as the difference between source code and object code. For a detailed critique of the CONTU group and its report, see Samuelson’s seminal piece, “CONTU Revisited: The Case against Copyright Protection for Computer Programs in Machine-Readable Form,” Duke Law Journal, vol. 1984, no. 4, Duke University School of Law (1984)).

Among the many consequences of software copyright, unforeseen by its champions, is its potential chilling effect on access to other digital works. Indeed, not even the critics at the time foresaw the problem we raise in our amicus brief – that copyright-encumbered software works are necessary tools for accessing digital files. And if these tools cannot be preserved, accessed, and used without the rights holder permission, the copyright monopolies in software will have grown to include control over authentic rendering of every work that is written or read with that software. For core software works like iOS, that power would reach millions of digital works (everything created for or with an Apple touchscreen device, from notes to fine art), all inaccessible without lawful access to (the right version of) iOS.

The SPN amicus brief lays out for the Court the extremely high stakes for getting the balance right in cases like this. The software-dependent nature of all digital files means preservation and access to software is a foundational issue for cultural heritage institutions in the 21st century. Unfettered copyright would give software copyright holders unfettered power to shape access to history (and to art, and to science, and to anything created or stored digitally, which is almost everything, now).

If this outcome—a digital history held hostage by software companies for 120 years after the creation of each new version of their app—sounds absurd, it’s because it is. It certainly does not “promote the progress of Science and the useful Arts,” as the Constitution supposes all copyright should do. And it certainly is not a situation any legislator intended or foresaw when they decided to add software to the Copyright Act’s list of protected works (or, rather, to redefine “literary work” to include software code). This is where fair use comes in to save the day.

Fair use is an open-ended right: the statute defines fair use with a list of examples prefaced by “such as,” leaving the courts discretion to identify new contexts where fair use can apply. So, even though no one in 1976, or 1980, expected there would be any need for an exception to copyright to enable access and preservation of digital works with software dependencies, the law is capable of providing that exception by means of fair use. Software preservation professionals have already begun to rely on fair use and to declare their consensus views about its application through the Code of Best Practices in Fair Use for Software Preservation. Without fair use and tools like the Code, cultural heritage institutions would be in serious trouble as they struggle to develop strategies for preserving our collective digital culture and history. With fair use, copyright law has within it the power to adjust and flex to avoid absurd results, including the one sought by Apple in its suit against Corellium.

Brandon Butler is Director of Information Policy at University of Virginia.  There he focuses on intellectual property, copyright, licensing and user privacy as they are related to the acquisition, dissemination and preservation of various forms of information and cultural artifacts, and as they are related to scholarly communication. He serves as an expert consultant to UVA librarians, to groups and individuals within the University, and to national and international efforts focused on relevant questions. He was previously a Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.