On Wednesday, February 16, the Software Preservation Network filed an amicus brief in Apple v. Corellium, a pivotal copyright lawsuit currently on appeal in the 11th Circuit Court of Appeals in Atlanta. Joining SPN on the brief were the Library Futures Institute, the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries (who work together on copyright issues as the Library Copyright Alliance. The case could have serious implications for digital cultural heritage preservation, as it asks whether fair use protects research access to software in emulated environments, a key element of modern digital preservation practice. As such, the case could impact the future of potentially groundbreaking services like EaaSI, defining the boundaries of what’s possible without express permission from software copyright holders (who are often non-responsive and even non-existent as software firms come and go or are bought and sold over time). SPN’s brief made these stakes clear to the court, and explained why fair use requires the court to rule in favor of research access.
Indeed, last year the trial court sided with emulation platform Corellium, finding that fair use allowed Corellium to host copies of Apple’s iOS mobile operating system, and to make it available in an emulated environment to facilitate security research. You can read more about that opinion and its implications for cultural heritage in this fair use week analysis by SPN legal advisor Brandon Butler. Apple appealed its loss to the 11th Circuit, asking the court to reverse and rule that Apple’s copyright in iOS gives it exclusive control over research access to the software.
SPN’s amicus brief has two parts. In the first part, we argue that emulated access to software for research use is clearly a fair use, especially in light of the powerful new precedent set by the US Supreme Court in its Google v. Oracle opinion. (Check out Brandon Butler’s analysis of that opinion for SPN.) Our amicus brief explains how the Google opinion strongly favors fair use of software, clarifying the boundaries of fair use to ensure that software copyright holders do not have excess market power, and that copyright serves its public interest purpose. We also draw the court’s attention to other important cases establishing research access as a fair use activity.
The second part of SPN’s brief may be the most important part, as it lays out for the Court the high stakes for getting the balance right in cases like this. We explain to the court that all digital cultural heritage is software-dependent—it cannot be perceived by humans without appropriate software. This makes preservation and access to software a foundational issue for cultural heritage institutions in the 21st century. As a vast and growing majority of cultural heritage created from the late 20th century onward is born digital, authentic access to cultural heritage will require libraries to have a reliable legal pathway for preservation and use of software. Fair use is by far the most promising such pathway, and the brief explains that 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.
A wide array of scholars and public interest groups filed amicus briefs in the case, including groups of computer science scholars, IP scholars, and anti-trust scholars, all supporting Corellium and favoring fair use. The Court will have a lot to think about as it considers the case. A decision in the case is likely to be months away, after the parties have oral arguments in Atlanta. Even after that decision, the case may be headed to the U.S. Supreme Court. Corellium may be preparing for that eventuality, as it is now represented by the law firm of well-known Supreme Court litigator (and founder of SCOTUSblog) Tom Goldstein, who represented Google in its winning fight against Oracle over software fair use.