What happens if a copyright owner encourages you to infringe their copyright? APPLE v. CORELLIUM

A copyright is a group of exclusive rights granted to the creator of a new work of expression. Copyright grants the creator of a new work the exclusive right to reproduce, perform, distribute and make derivative works based on the original work. If someone other than the copyright owner exercises one of these exclusive rights, that can be copyright infringement. A copyright owner can sue to stop infringement of their copyright with an injunction and also to get monetary damages for infringement which has occurred. However, the broad rights granted by copyright law do come with some limitations.

Because technology is constantly evolving law has a difficult time keeping up. Computer programs are treated like a literary work for copyright purposes in the United States. A computer program is granted copyright protection in a similar ways as books and other written material. Reproducing a copyrighted computer program without authorization of the copyright owner can be considered copyright infringement. However, if a copyright owner gives someone authorization to reproduce their computer program, can the copyright owner later sue for infringement?

If there is a contract between the copyright owner and the alleged infringer, the terms of the contract would govern the relationship between the party. But what if there is no explicit contract between the parties? Take for instance a “letter to the editor” submitted to a newspaper. Clearly the writer has a copyright to their letter, however the newspaper reproducing the letter does not necessarily constitute copyright infringement. The letter writer may not have given an express license to the newspaper, but there is an implied license to republish the letter because that is what one can reasonably expect to happen when a letter to the editor is submitted.

With respect to copyrighted computer software, copyright holders frequently will distribute copies of software to journalists and experts to evaluate and comment on. The copyright to the software does not transfer with the copy, but, absent a contract to the contrary, there is an implied license that the recipient of the authorized copy can continue to use the authorized copy. So what happens when a copyright owner wants to revoke authorization to use copyrighted software?

APPLE INC., v. CORELLIUM, LLC, 9:19-cv-81160 (S.D.FL 2019) is a case which touches on this subject. The plaintiff in this case is a world famous computer hardware and software company. The plaintiff produces an operating system for its products called iOS. The plaintiff owns the copyright to iOS.

The defendant is a security research firm that developed a method of virtualization for iOS. Normally a single device would run a single copy of the iOS operating system. The defendant developed software which runs multiple virtual instances of iOS, independently, on a single device. Having multiple instances of an operating system simultaneously operating on a single device allows security researches to quickly discover security bugs. Discovering security bugs frequently involves breaking the operating system, that can lead to a device becoming completely inoperable. When an virtual instance of an operating system becomes inoperable, that specific instance can be deleted and the device keeps functioning. The defendant’s system became the system of choice for security researchers interested in iOS, including the plaintiff.

The plaintiff and the defendant collaborated for several years on security research for the iOS operating system. At several points the plaintiff attempted to purchase the defendant. In 2011 and 2018, the plaintiff and the defendant entered into confidential negotiations for the purchase of the defendant but a price could not be agreed upon. At no point in the negotiations did the plaintiff state that the defendant was committing copyright infringement. The plaintiff also invited the defendant to participate in a bug bounty program, where security researchers are paid for security flaws they discover. The defendant claims that it has not been paid for several bugs it discovered.

The plaintiff then sued the defendant for copyright infringement, claiming that the defendant was reproducing iOS without authorization. The defendant responded with several defenses including that its use of iOS was fair use because running the operating system as a virtualized instance was transformative and that the plaintiff had given them an implied license to use iOS.

How this case ends will turn on a number of factors, including whether the plaintiff is willing to meet the defendant’s purchase price.

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