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`[DO NOT PUBLISH]
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`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`____________________
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`No. 21-12835
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`____________________
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`APPLE INC.,
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`versus
`CORELLIUM, INC.,
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`
` Plaintiff-Counter Defendant-Appellant,
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` Defendant-Counter Claimant-Appellee.
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`
`____________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 9:19-cv-81160-RS
`____________________
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`[DO NOT PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`
`
`
`
`
`
`____________________
`
`No. 21-12835
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`____________________
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`
`APPLE INC.,
`
`versus
`CORELLIUM, INC.,
`
`
` Plaintiff-Counter Defendant-Appellant,
`
` Defendant-Counter Claimant-Appellee.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 9:19-cv-81160-RS
`____________________
`
`
`
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`Opinion of the Court
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`21-12835
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`Before BRANCH and LUCK, Circuit Judges, and SANDS,* District
`Judge.
`PER CURIAM:
`This is a copyright case. Apple Inc. owns copyrights for
`iOS—the operating system that the company uses for devices like
`iPhones, iPads, and iPod Touches—and for some of that operating
`system’s icons and wallpapers. Corellium, Inc. is a technology
`company. It created a virtualization software—basically a virtual
`phone—that can run various operating systems (like Android and
`iOS). The virtualization software includes tools that enable secu-
`rity researchers to gain deeper insights into these operating sys-
`tems. Looking to stop Corellium from selling its product, Apple
`sued Corellium alleging copyright infringement.
`
`The district court granted summary judgment for Corellium
`on Apple’s three copyright claims: (1) direct infringement of iOS
`(count one), (2) direct infringement of Apple’s icons and wallpapers
`(count two), and (3) contributory infringement (count three). As
`to count one, the district court found that Corellium was not liable
`for copying iOS because Corellium was shielded by the fair use doc-
`trine. As to counts two and three, the district court entered sum-
`mary judgment for Corellium without separately addressing those
`claims.
`
`
`* Honorable W. Louis Sands, United States District Judge for the Middle Dis-
`trict of Georgia, sitting by designation.
`
`
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`Opinion of the Court
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`We agree in part. The U.S. Constitution enshrines the pur-
`pose of copyright: “to promote the progress of science and useful
`arts.” U.S. Const. art. I, § 8, cl. 8 (cleaned up). The Copyright Act
`achieves this “utilitarian goal” by protecting a creator’s rights in its
`original creation while also allowing others to make fair use of the
`original by creatively building on it. Cambridge Univ. Press v. Pat-
`ton, 769 F.3d 1232, 1238 (11th Cir. 2014).
`As to count one, we agree that Corellium is shielded by the
`fair use doctrine. First, Corellium’s virtualization software is trans-
`formative—it furthers scientific progress by allowing security re-
`search into important operating systems. Second, iOS is functional
`operating software that falls outside copyright’s core. Third, Co-
`rellium didn’t overhelp itself to Apple’s software. And fourth, Co-
`rellium’s product does not substantially harm the market for iOS
`or iOS derivatives—so Apple’s own incentive to innovate remains
`strong. As to counts two and three, we remand for the district
`court to independently consider those claims in the first instance.
`FACTUAL BACKGROUND
`The iPhone
`Apple introduced the iPhone in 2007. The iPhone was one
`of the world’s first smartphones and remains one of the most pop-
`ular consumer electronic devices in the world. The iPhone’s oper-
`ating system—the software that manages the phone’s basic func-
`tions—is called “iOS.” iOS runs the built-in applications, or “apps,”
`that come with the iPhone (like mail, maps, and music). It also
`
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`runs the phone’s graphical user interface (the virtual display iPhone
`users have become familiar with). Here’s what that display looks
`like:
`
`
`Apple has sold more than two billion iOS devices. Those devices
`include iPhones, iPads (until 2019), and iPod Touches.
`
`To improve its product, Apple periodically releases new ver-
`sions of iOS. When it does, Apple registers each successive version
`with the U.S. Copyright Office. Apple has also secured separate
`copyright registrations for its graphic icons and background wall-
`papers. With each new iOS, Apple bundles its update into what’s
`known as an IPSW file (basically a zip file). Apple then makes that
`IPSW file available to the public for free. While anyone can down-
`load the software for free, Apple has made it somewhat difficult to
`use iOS on non-Apple devices.
`Beyond consumer products, Apple also offers some services
`to developers and researchers. First, Apple offers a program called
`
`
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`“iOS Simulator,” which “allows app developers to create and test
`iOS apps” on a “virtual iOS device.” Second, Apple has announced
`what it calls the “iOS Security Research Device Program.”
`Through this program, Apple plans to provide custom iPhones to
`“legitimate security researchers” in exchange for a contractual
`commitment to “find and report bugs to Apple.” Third, Apple is
`developing Xcode Cloud, a program that will allow developers “to
`remotely access” iOS via “physical devices in an Apple device farm”
`to help with building and testing apps. Xcode Cloud “is not specif-
`ically designed for security research” but it can be used “to test iOS
`for bugs.”
`
`Corellium
`Corellium was founded in 2017. It created a virtualization
`software—CORSEC—that emulates various operating systems
`like Android, iOS, and Linux. Virtualization is the ability to run
`software on hardware that the software is not ordinarily able to run
`on. So, while iOS, for example, is designed to run on Apple devices,
`CORSEC (the virtualization software) simulates on non-Apple
`hardware an environment that can run the iOS operating system
`(the software being virtualized). In effect, CORSEC “enables users
`to create a virtual iPhone.”
`Corellium’s founders each testified that “[t]he purpose of
`[CORSEC was] to create a good environment for security research-
`ers to do their work.” One founder, for instance, described
`CORSEC as a “security research platform for mobile devices.” An-
`other said that “the purpose[] that Corellium was built for . . . was
`
`
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`. . . security research.” Apple itself offered to purchase Corellium
`for about $23 million and “discussed several potential uses” for
`CORSEC, including “security testing” and “security research.”
`The parties couldn’t agree on a price and so talks fell apart. Apple
`has recognized that CORSEC “can be used for security testing, re-
`search, and development.”
`Corellium sells two versions of its product. The first is a
`“cloud” version, which is available over the internet. The second
`is an “on-site” version, where customers receive a physical server
`that is then installed at the customer’s chosen location. The cloud
`version ranges from $575 to $6,000 per month for a subscription.
`The on-site version costs thousands—even hundreds of thou-
`sands—of dollars. The on-site version’s premium edition has a
`base price of $300,000 and requires customers to pay an additional
`$25,000 to $50,000 per server on top of that. Corellium has sold
`about twenty on-site accounts and twenty-one cloud accounts.
`
`How does CORSEC work? It starts with Apple’s publicly
`available IPSW file. CORSEC customers can obtain the IPSW file
`by manually downloading it or through a Corellium program that
`automatically downloads the IPSW file from Apple’s servers. In an
`early version, Corellium would also provide the IPSW file via “USB
`[t]humb drive[s].” Once a user selects the IPSW file it wants to use,
`CORSEC “dynamically unpacks” the file as it is downloading. In
`doing so, CORSEC “modifies various components” to make iOS
`“run reliably on Corellium’s non-Apple platform.” By the end, the
`
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`virtual device is made up of a combination of Corellium’s code and
`Apple’s code.
`But CORSEC does more than simply allow users to run iOS
`on non-Apple devices. CORSEC also “helps security researchers
`do their work in a way that physical iPhones just can’t.” So, for
`example, in modifying iOS, CORSEC adds features that are not
`available on retail iOS, including: (1) the ability to see and halt run-
`ning processes; (2) the ability to modify the kernel (which is the
`core of the operating system that has complete control over all sys-
`tem resources); (3) CoreTrace, a tool to view system calls (i.e., cer-
`tain processes underlying the software); (4) an app browser; (5) a
`file browser; and (6) the ability to take and clone live snapshots.
`CORSEC also modifies iOS by “disabling firmware validation and
`[federal information processing standards], modifying the trust
`cache, and generating a[] [cryptographic] ticket [that authorizes in-
`stallation on non-Apple devices].”
`
`While all of this is quite technical, these features serve as
`useful tools for security researchers in practice. CoreTrace, for in-
`stance, “enables researchers to holistically view and comprehend
`all system calls made by the operating system and the apps running
`on it, giving researchers the ability to examine and understand both
`iOS itself and iOS-based applications in advanced new ways[.]” By
`taking snapshots, researchers can freeze and clone devices in cer-
`tain states so that they can run multiple tests in different ways from
`the same starting point. And modifying the trust cache allows re-
`searchers to download software that otherwise would not be
`
`
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`permitted on the device—so researchers can, for example, “install
`a new program on [their] device” that “lets the user . . . perform
`fuzzing or other kinds of security research.” Fuzzing is a way to
`find bugs in a product’s code.
`Here’s what CORSEC looks like in practice:
`
`
`CORSEC doesn’t entirely replicate an iPhone. Those who
`use CORSEC can’t use their virtual device to (for instance) make
`phone calls, send text messages, take photos, navigate with GPS,
`or download apps from Apple’s App Store. While Corellium has
`mentioned plans to integrate some of these functions, the features
`currently do not exist on the CORSEC software. Corellium views
`“physical device[s]” like iPhones and Androids as its “biggest com-
`petitor” but has explained that “Corellium [really] doesn’t have any
`direct competitors; no one else is offering Android or iOS virtual-
`ization.”
`
`
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`PROCEDURAL HISTORY
`On August 15, 2019, Apple sued Corellium. In its operative
`second amended complaint, Apple brought three claims: (1) direct
`copyright infringement of iOS (count one), (2) direct copyright in-
`fringement of Apple’s icons and wallpapers (count two), and (3)
`contributory copyright infringement of iOS, the icons, and the
`wallpapers (count three).1
`Corellium moved for summary judgment on each of Apple’s
`claims, arguing that its use of iOS and Apple’s icons and wallpapers
`was “categorically fair use.” In doing so, Corellium walked
`through the four statutory fair use factors. First, Corellium ex-
`plained that CORSEC was “transformative” because of its new fea-
`tures and new purpose:
`
`[CORSEC] is a specialty security research tool.
`Among its many features, [CORSEC] provides the
`ability for researchers to 1) visualize in real time the
`input and output processes of the operating systems
`running in it; 2) freeze the processes in the operating
`system and study a specific state for as long as they
`need to; 3) step backwards and forward in time at will
`to closely monitor system activity using CoreTrace;
`4) make and test their own kernels; [and] 5) run mul-
`tiple experiments from the same starting point.
`These features are not available as part of iOS, and
`
`
`1 These were the three claims left by the time Apple appealed.
`
`
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`they add something new, with a further purpose or
`different character[.]
`
`Second, Corellium argued that iOS “is accorded less protection”
`because of its “functional elements.” Third, Corellium asserted
`that its use of iOS was “necessary to conduct research.” Fourth,
`Corellium maintained that CORSEC “ha[d] no adverse effect on
`the market for Apple’s products” because “[n]o ordinary con-
`sumer” would buy a device that can’t “be used to make calls, re-
`ceive text messages, [or] take photos” over an iPhone or iPad. For
`these reasons, Corellium argued that Apple’s “direct and contribu-
`tory infringement claims fail.”
`
`In response, Apple argued that Corellium was not entitled
`to the fair use defense. First, Apple contended that CORSEC was
`not transformative because it “merely offer[ed] the [iOS] software
`in a different medium.” Second, Apple asserted that iOS—along
`with the icons and wallpapers—were “highly creative” and thus en-
`titled to “maximal protection.” Third, Apple argued that Corel-
`lium copied “all of iOS.” Fourth, Apple submitted that there was
`“market harm.” Apple concluded that its direct copyright claims
`survived. Apple also argued that Corellium “failed to specifically
`address” Apple’s contributory infringement claim, “and thus [Co-
`rellium’s] motion must be denied outright with respect to that
`claim.”
`The district court sided with Corellium, concluding that the
`company was shielded by the fair use doctrine. First, the district
`court explained that CORSEC was transformative because it made
`
`
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`“several changes to iOS and incorporate[d] its own code to create
`a product that serve[d] a transformative purpose.” Second, the dis-
`trict court “note[d] the limitations on copyright protection for soft-
`ware” but gave this factor little weight. Third, the district court
`concluded that “Corellium’s copying, modifying, and using of iOS
`[was] reasonable in relation to the purpose of the copying.” And
`fourth, the district court found “no evidence that [CORSEC] ha[d]
`affected, let alone materially affected, Apple’s market or the market
`value for iOS.”
`
`From this, the district court granted summary judgment for
`Corellium on the direct and contributory copyright claims. The
`district court, though, focused only on count one—Apple’s claim
`that Corellium directly infringed on iOS. Although the district
`court granted summary judgment as to all three counts, it didn’t
`separately consider whether Corellium directly infringed on Ap-
`ple’s icons and wallpapers (count two) or whether Corellium was
`liable for contributory infringement (count three).
`
`Apple timely appealed.
`STANDARD OF REVIEW
`“We review the district court’s grant of summary judgment
`de novo.” Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th
`Cir. 1994). “Fair use is a mixed question of law and fact.” Google
`LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1199 (2021) (cleaned up).
`While we must “leav[e] factual determinations to the jury,” the
`
`
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`“ultimate question whether those facts show[] a fair use is a legal
`question for judges to decide de novo.” Id. at 1199–200 (cleaned
`up).
`
`Because fair use is an affirmative defense, a defendant mov-
`ing for summary judgment on fair use “must show affirmatively
`the absence of a genuine issue of material fact: it must support its
`motion with credible evidence that would entitle it to a directed
`verdict if not controverted at trial.” United States v. Four Parcels
`of Real Prop. in Greene & Tuscaloosa Cntys., 941 F.2d 1428, 1438
`(11th Cir. 1991) (en banc) (cleaned up). “In other words, the [de-
`fendant] must show that . . . no reasonable jury could find for the
`nonmoving party.” Id. “If the [defendant] makes such an affirma-
`tive showing, it is entitled to summary judgment unless the [plain-
`tiff], in response, comes forward with significant, probative evi-
`dence demonstrating the existence of a triable issue of fact.” Id.
`(cleaned up).
`
`DISCUSSION
`Here’s how we’ll proceed. First, we explain that there’s no
`genuine dispute that Corellium made fair use of iOS. Corellium is
`thus entitled to summary judgment on count one. Second, we re-
`mand Apple’s remaining claims for the district court to separately
`consider them in the first instance.
`The iOS Copyright Claim (Count One)
`The Constitution gives Congress the power “to promote the
`progress of science and useful arts, by securing for limited times to
`
`
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`authors and inventors the exclusive right to their respective writ-
`ings and discoveries.” U.S. Const. art. I, § 8, cl. 8 (cleaned up). This
`text embodies “copyright’s utilitarian goal” of promoting the crea-
`tion of new works for the public good. Patton, 769 F.3d at 1238.
`In other words, “copyright is not an inevitable, divine, or natural
`right that confers on authors the absolute ownership of their crea-
`tions. It is designed rather to stimulate activity and progress in the
`arts for the intellectual enrichment of the public.” Id. at 1256 (quo-
`tation omitted).
`
`Indeed, the Supreme Court has long recognized that copy-
`right “grants an author an exclusive right to produce his work
`(sometimes for a hundred years or more), not as a special reward,
`but in order to encourage the production of works[.]” Google, 141
`S. Ct. at 1195; see also, e.g., Mazer v. Stein, 347 U.S. 201, 219 (1954)
`(“The economic philosophy behind the clause empowering Con-
`gress to grant patents and copyrights is the conviction that encour-
`agement of individual effort by personal gain is the best way to ad-
`vance public welfare through the talents of authors and inven-
`tors . . . .”); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (“The
`sole interest of the United States and the primary object in confer-
`ring the monopoly lie in the general benefits derived by the public
`from the labors of authors.”).
`To this end, the Copyright Act engages in a balancing act.
`See Patton, 769 F.3d at 1238 (explaining that the Copyright Act re-
`quires courts to “ascertain the appropriate balance”). On one side,
`“the Copyright Act confers a bundle of exclusive rights to the
`
`
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`owner of the copyright.” Harper & Row Publishers, Inc. v. Nation
`Enters., 471 U.S. 539, 546 (1985); accord Patton, 769 F.3d at 1256.
`It gives creators “the exclusive right[]” to “reproduce,” “distribute,”
`and “perform” the copyrighted works. 17 U.S.C. § 106(1), (3)–(4).
`It’s through these protections that Congress has “motivate[d] the
`creative activity of authors and inventors” so that the public can
`benefit from “their genius.” Sony Corp. of Am. v. Universal City
`Studios, Inc., 464 U.S. 417, 429 (1984).
`On the other side, the Copyright Act limits this exclusive
`right—including through the “fair use” doctrine. 17 U.S.C. § 107.
`“From the infancy of copyright protection, some opportunity for
`fair use of copyrighted materials has been thought necessary to ful-
`fill copyright’s very purpose, to promote the progress of science
`and useful arts.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,
`575 (1994) (cleaned up). As Justice Story explained, “[i]n truth, in
`literature, in science and in art, there are, and can be, few, if any,
`things, which, in an abstract sense, are strictly new and original
`throughout. Every [invention] in literature, science and art, bor-
`rows . . . much which was well known and used before.” Emerson
`v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845). So copyright
`must allow “[s]ome unpaid use of copyrighted materials” so that
`inventors can build on existing works. Patton, 769 F.3d at 1238.
`The fair use doctrine serves this important function. The
`fair use doctrine “permits [and requires] courts to avoid rigid appli-
`cation of the copyright statute when, on occasion, it would stifle
`the very creativity which that law is designed to foster.” Campbell,
`
`
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`510 U.S. at 577 (alteration in original) (quoting Stewart v. Abend,
`495 U.S. 207, 236 (1990)). The doctrine, as codified by Congress,
`provides:
`[T]he fair use of a copyrighted work . . . for purposes
`such as criticism, comment, news reporting, teaching
`. . . , scholarship, or research, is not an infringement
`of copyright. In determining whether the use made
`of a work in any particular case is a fair use the factors
`to be considered shall include—
`
`(1) the purpose and character of the use, in-
`cluding whether such use is of a commercial
`nature or is for nonprofit educational pur-
`poses;
`
`
`
`(2) the nature of the copyrighted work;
`
`(3) the amount and substantiality of the por-
`tion used in relation to the copyrighted work
`as a whole; and
`
`(4) the effect of the use upon the potential mar-
`ket for or value of the copyrighted work.
`
`17 U.S.C. § 107. In sum, the Copyright Act—to promote innova-
`tion—balances two competing aims. First, the Act protects those
`who create original works. This protection gives original creators
`the financial incentive to innovate. Second, recognizing that most
`inventions build upon those that came before them, the Act affords
`
`
`
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`follow-on creators some leeway to borrow from originals so that
`they, too, can create new and important works.
`In finding the right balance, courts must remember that the
`“[f]air use doctrine is an equitable rule of reason; neither the exam-
`ples of possible fair uses”—like criticism or research—“nor the four
`statutory factors are to be considered exclusive.” Peter Letterese
`& Assocs., Inc. v. World Inst. of Scientology Enters., 533 F.3d 1287,
`1308 (11th Cir. 2008) (quotation omitted). “All [of the factors] are
`to be explored, and the results weighed together, in light of the
`purposes of copyright.” Campbell, 510 U.S. at 578. “[B]ecause fair
`use is an affirmative defense, its proponent bears the burden of
`proof in demonstrating that it applies.” Patton, 769 F.3d at 1259.
`With that, we turn to the four factors.
`The Purpose and Character of the Use
`The first factor—the purpose and character of the use—“fo-
`cuses on (1) the extent to which the use is a transformative rather
`than merely superseding use of the original work and (2) whether
`the use is for a nonprofit educational purpose, as opposed to a com-
`mercial purpose.” MidlevelU, Inc. v. ACI Info. Grp., 989 F.3d 1205,
`1221 (11th Cir. 2021) (quotation omitted). We’ll take each prong
`in turn.
`
`a. Transformative
`In assessing whether a new work is transformative, we ask
`“whether the new work merely supersedes the objects of the orig-
`inal creation or instead adds something new, with a further
`
`
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`purpose or different character, altering the first with new expres-
`sion, meaning, or message.” Campbell, 510 U.S. at 579 (cleaned
`up). Transformative works include “an artistic painting that incor-
`porates an advertising logo to make a comment [on] consumer-
`ism,” 4 Nimmer on Copyright § 13.05[A][1][b] (2022) (quotation
`omitted), or a “parody [that] transforms a work by appropriating
`elements of [that] work for purposes of comment or criticism,” Pat-
`ton, 769 F.3d at 1262. “Even verbatim copying may be transform-
`ative so long as the copy serves a different function than the origi-
`nal work.” Id. (quotation omitted).
`Transformative works “lie at the heart of the fair use doc-
`trine’s guarantee of breathing space within the confines of copy-
`right[.]” Campbell, 510 U.S. at 579 That’s because they help strike
`the balance copyright law is after:
`
`[T]ransformative works possess a comparatively
`large share of the novelty copyright seeks to foster.
`At the same time, transformative uses are less likely,
`generally speaking, to negatively impact the original
`creator’s bottom line, because they do not merely su-
`persede the objects of the original creation and there-
`fore are less likely to supplant the market for the cop-
`yrighted work by fulfilling demand for the original.
`
`Patton, 769 F.3d at 1262 (cleaned up). Some works fulfill this aim—
`of creating something novel without supplanting the original—bet-
`ter than others. And so some works are “more transformative”
`than others. Campbell, 510 U.S. at 579.
`
`
`
`USCA11 Case: 21-12835 Document: 102-1 Date Filed: 05/08/2023 Page: 18 of 38
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`Opinion of the Court
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`21-12835
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`Turning to our case, we agree with the district court that
`Corellium’s software
`is moderately transformative.
` First,
`CORSEC alters iOS by adding features that aren’t ordinarily avail-
`able on the iOS operating system, including: (1) the ability to see
`and halt running processes; (2) the ability to modify the kernel;
`(3) CoreTrace, a tool to view system calls; (4) an app browser; (5) a
`file browser; and (6) the ability to take live snapshots. CORSEC
`also modifies iOS by “disabling firmware validation and [federal in-
`formation processing standards], modifying the trust cache, and
`generating a[] [cryptographic] ticket.”
`
`Second, Corellium not only “add[ed] something new” but
`also created a product with “further purpose or different charac-
`ter.” Campbell, 510 U.S. at 579. There’s no dispute that CORSEC
`“helps security researchers do their work in a way that physical
`iPhones just can’t.” In other words, Corellium isn’t geared towards
`the same consumer-oriented function as iOS but instead “giv[es]
`researchers the ability to examine and understand both iOS itself
`and iOS-based applications in advanced new ways.” CORSEC thus
`“provide[s] social benefit, by shedding light on an earlier work, and,
`in the process, creating a new one.” Id.; see also 17 U.S.C. § 107
`(listing “research” and “criticism” as paradigmatic fair uses).
`Third, CORSEC does not supersede iOS running on
`iPhones. CORSEC creates a virtual phone—not a physical phone
`in your pocket. As the product currently stands, CORSEC can’t be
`used to make phone calls, send texts, take photos, navigate with
`GPS, or download apps from the App Store. And these are all
`
`
`
`USCA11 Case: 21-12835 Document: 102-1 Date Filed: 05/08/2023 Page: 19 of 38
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`Opinion of the Court
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`19
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`crucial features that lead ordinary consumers to purchase an iPh-
`one equipped with iOS. While Apple has suggested that Corellium
`has “plans” to integrate some of these features into its product in
`the future, these hypothetical future plans are irrelevant to Apple’s
`current claim. See Authors Guild, Inc. v. HathiTrust, 755 F.3d 87,
`101 (2d Cir. 2014) (“Without foreclosing a future claim based on
`circumstances not now predictable, and based on a different rec-
`ord, we hold that the balance of relevant factors in this case favors
`[fair use].”).
`
`In similar cases, courts have found that products are trans-
`formative. Take Google LLC v. Oracle America, Inc., for example.
`There, Google, when creating the Android platform, copied 11,500
`lines of code from Oracle’s Java software. Google, 141 S. Ct. at
`1191. This code from Java—a platform developers use to write
`computer programs—allowed programmers to use “shortcuts” to
`build certain functions into their programs, rather than writing
`code from scratch. Id. at 1191–92. While creating Android, Google
`decided that Java’s code would prove useful to programmers work-
`ing on Android apps—since programmers were already familiar
`with Java’s code. Id. at 1193–94.
`The Supreme Court held that Google deployed this code for
`a transformative purpose. Id. at 1202–04. On the one hand, Google
`used Java’s code “in part for the same reason that [Oracle] created
`those portions, namely, to enable programmers to call up imple-
`menting programs that would accomplish particular tasks.” Id. at
`1203.
` Still, Google’s use, the Supreme Court said, was
`
`
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`USCA11 Case: 21-12835 Document: 102-1 Date Filed: 05/08/2023 Page: 20 of 38
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`Opinion of the Court
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`21-12835
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`“transformative.” Id. at 1204. That’s because Google was using
`the code to create a “new product [that] offer[ed] programmers a
`highly creative and innovative tool for a smartphone environment”
`and to “further the development of computer programs.” Id. at
`1203. Google’s “use was [thus] consistent with that creative ‘pro-
`gress’ that is the basic constitutional objective of copyright itself.”
`Id. (quoting U.S. Const. art. I, § 8, cl. 8).
`The same is true here. As in Google, Corellium invented a
`creative and innovative tool that furthered the very creative pro-
`gress that copyright seeks to achieve. Corellium created a new
`product with new features. This new product opened the door for
`deeper security research into operating systems like iOS—dissect-
`ing those programs, discovering vulnerabilities, and exploring pos-
`sible patches. While CORSEC, it’s fair to say, isn’t the creative leap
`that the Android platform was, CORSEC still offers new features,
`serves new purposes, and furthers the progression of technology
`through research and development.
`Our case also looks a lot like Authors Guild v. Google, Inc.,
`804 F.3d 202 (2d Cir. 2015). There, Google, again—as part of the
`Google Books project—made digital copies of tens of millions of
`books. Id. at 207. Google Books worked as a “search engine” that
`allowed “researchers to comb over the tens of millions of books”
`and view “snippets” of passages. Id. at 209. Through these tools,
`researchers could “identify [books] that contain a word or term of
`interest” and “learn the frequency of usage of selected words . . . in
`different historical periods.” Id. at 217. In finding fair use, the court
`
`
`
`USCA11 Case: 21-12835 Document: 102-1 Date Filed: 05/08/2023 Page: 21 of 38
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`explained that Google’s use of the digital copies was “transforma-
`tive” because the engine “augment[ed] public knowledge by mak-
`ing available information about [the] books.” Id. at 207, 217–19
`(emphasis in original).
`A similar thing is true here. Like Google Books, CORSEC
`adds new features to copyrighted works. CORSEC allows re-
`searchers to visualize in real time iOS’s processes, freeze those pro-
`cesses and study them for as long as they need to, step backward
`and forward in time at will to closely monitor system activity, and
`run multiple experiments from the same starting point. CORSEC
`also adds file and app browsers. There’s no dispute that these fea-
`tures assist researchers and enable them to do their work in new
`ways. Corellium has thus “augment[ed] public knowledge by mak-
`ing available information about [iOS].” Id. at 207; see also A.V. ex
`rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir.
`2009) (finding that copying student assignments into a database to
`detect plagiarism was “transformative” because the database’s “use
`of [the students’] works had an entirely different function and pur-
`pose than the original works”); Perfect 10, Inc. v. Amazon.com,
`Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (finding that Google image
`search’s “use of thumbnails [was] highly transformative” because
`the “use of the images served a different fun
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