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.

from Blogger http://tushnet.blogspot.com/2023/05/apple-v-corellium-out-11th-cir-finds.html