Case 9:19-cv-81160-RS Document 512 Entered on FLSD Docket 05/26/2020 Page 1 of 27
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`CASE NO: 9:19-cv-81160-RS
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`Plaintiff,
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`APPLE INC.,
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`v.
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`CORELLIUM, LLC,
`Defendant.
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`__________________________________/
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`DEFENDANT CORELLIUM, LLC’S MEMORANDUM IN OPPOSITION TO
`PLAINTIFF APPLE INC.’S MOTION FOR PARTIAL SUMMARY JUDGMENT
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`Case 9:19-cv-81160-RS Document 512 Entered on FLSD Docket 05/26/2020 Page 2 of 27
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`I.
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`II.
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`III.
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`TABLE OF CONTENTS
`Summary of Argument ....................................................................................................... 1
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`Statement of Material Facts ................................................................................................ 2
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`A.
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`B.
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`APPLE DISTRIBUTES IOS ONLINE, FREE AND UNECRYPTED .............................. 2
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`CORELLIUM SELLS A TOOL THAT ENABLES ITS USERS TO CONDUCT
`HIGH-END SECURITY RESEARCH ............................................................................... 3
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`Arguments and Authorities ................................................................................................. 3
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`C.
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`Legal Standard .................................................................................................................... 3
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`1.
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`2.
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`Standard ................................................................................................................. 3
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`Digital Millennium Copyright Act......................................................................... 4
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`D.
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`APPLE’S FREE UNENCRYPTED DISTRUBUTION OF IOS ONLINE WITH
`ZERO TECHNOLOGICAL MEASURES IS FATAL TO ITS DMCA CLAIMS ............ 5
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`1.
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`2.
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`Under 1201(a) iOS Object Code is Accessed when an IPSW is Downloaded,
`Unencrypted, from Apple ...................................................................................... 5
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`No Technological Measures Prevent the Public from Copying, Editing,
`Distributing, Performing, or Displaying the Contents of an IPSW file ................. 7
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`APPLE’S ALLEGED TCMS ARE NOT IN THE IPSW DISTRIBUTED ONLINE ........ 8
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`EVEN IF APPLE’S TCMS EXISTED IN THE IPSW AND WERE EFFECTIVE,
`THEY WOULD ACTIVATE AFTER ACCESS, COPYING, AND USE ...................... 11
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`APPLE HAS FAILED TO PROVE THAT CORELLIUM “TRAFFICS” IN
`CIRCUMVENTION
`TOOLS.............................................................................................................................. 13
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`APPLE’S FAILURE TO MOVE FOR SUMMARY JUDGEMENT ON ITS
`INFRINGEMENT CLAIM IS ALSO FATAL TO ITS MOTION ................................... 14
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`APPLE’S POSITION WOULD LEAD TO THE DEATH OF FAIR USE ...................... 16
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`CORELLIUM IS ENTITLED TO A FAIR USE DEFENSE ........................................... 17
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`E.
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`F.
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`G.
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`H.
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`I.
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`J.
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`i
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`IV.
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`K.
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`CORELLIUM’S DEFENSES UNDER SECTIONS 1201(F), (G), AND (J) ARE VALID
`AND IN MATERIAL DISPUTE ...................................................................................... 17
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`1.
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`2.
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`Reverse Engineering, 1201(f) .............................................................................. 18
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`Security Testing and Encryption Research, 1201(g), (j) ...................................... 19
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`L.
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`APPLE CAUSED CORELLIUM TO SPEND SUBSTANTIAL MONEY AND TIME
`AND SHOULD BE ESTOPPED FROM ASSERTING THE DMCA ............................. 19
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`Conclusion ........................................................................................................................ 20
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`ii
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`TABLE OF AUTHORITIES
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`Cases Page(s)
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`Allen v. Tyson Foods, Inc.,
`121 F.3d 642 (11th Cir. 1997) ...................................................................................................4
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`Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242 (1986) ...................................................................................................................3
`
`Apple, Inc. v. Psystar Corp.,
`673 F. Supp. 2d 931 (9th Cir. 2009) ..........................................................................................7
`
`Bateman v. Mnemonics, Inc.,
`79 F.3d 1532 1539 ...........................................................................................................5, 6, 12
`
`Chamberlain Grp., Inc. v. Skylink Techs., Inc.,
`381 F.3d 1178 (Fed. Cir. 2004)........................................................................................ passim
`
`Fed. Deposit Ins. Corp. v. Harrison,
`735 F.2d 408 (11th Cir. 1984) .................................................................................................19
`
`Garcia v. Vanguard Car Rental USA, Inc.,
`540 F.3d 1242 (11th Cir. 2008) ...............................................................................................15
`
`HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co.,
`240 F.3d 982 (11th Cir. 2001) ...................................................................................................3
`
`HGI Assocs., Inc. v. Wetmore Printing Co.,
`427 F.3d 867 (11th Cir. 2005) .................................................................................................19
`
`Lexmark Int'l, Inc. v. Static Control Components, Inc.,
`387 F.3d 522 (6th Cir. 2004) ........................................................................................... passim
`
`Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
`475 U.S. 574 (1986) ...................................................................................................................4
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`MDY Ind’s, LLC v. Blizzard Entertainment, Inc.,
`629 F.3d 928 (9th Cir. 2010) ...................................................................................................15
`
`NNG, KFT. v. AVA Enterprises, Inc.,
`2015 WL 5442725 (C.D. Cal. July 8, 2015) ............................................................................13
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`Nordstrom Consulting, Inc. v. M & S Techs., Inc.,
`2008 WL 623660 (N.D. Ill. Mar. 4, 2008) ...............................................................................15
`
`Online Policy Group v. Diebold, Inc.,
`337 F. Supp. 2d 1195 (N.D. Cal. 2004) ...................................................................................15
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`iii
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`Sega Enterprises Ltd. v. Accolade, Inc.,
`977 F.2d 1510 (9th Cir.1992) ....................................................................................................6
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`Suntrust Bank v. Houghton Mifflin Co.,
`268 F.3d 1257 (11th Cir. 2001) ...............................................................................................16
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`Universal City Studios, Inc. v. Corley,
`273 F.3d 429 (2d Cir. 2001).....................................................................................................16
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`Statutes
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`17 U.S.C. §§ 101 ..............................................................................................................................4
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`17 U.S.C. § 102 ................................................................................................................................4
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`17 U.S.C. § 106 ....................................................................................................................4, 12, 15
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`17 U.S.C. §§ 107 ..............................................................................................................................4
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`17 U.S.C. § 1201 .................................................................................................................... passim
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`Rules and Regulations
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`Fed. R. Civ. Pro. Rule 56 .................................................................................................................1
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`Local Rule 56.1 ................................................................................................................................1
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`Reports
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`H.R. Rep. 105–551(II), (1998).......................................................................................................15
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`S. REP. 105-190 (1998) ...................................................................................................................6
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`Other Authorities
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`David Nimmer, A Riff on Fair Use in the Digital Millennium Copyright Act,
`PA L. REV. 673, 687-89 (2000) ................................................................................................15
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`iv
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`Case 9:19-cv-81160-RS Document 512 Entered on FLSD Docket 05/26/2020 Page 6 of 27
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`Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1, Defendant
`Corellium, LLC (“Corellium”) hereby opposes Plaintiff Apple Inc.’s (“Apple”) Motion for Partial
`Summary Judgment, ECF No. 453, (the “Motion” or “Mot.”).
`SUMMARY OF ARGUMENT
`I.
`
`Corellium’s product neither circumvents nor enables any of its users to circumvent a single
`one of Apple’s alleged technological control measure (“TCM”). Apple’s alleged TCMs protect
`iOS on an iPhone or iPad only. The IPSW file that Apple makes freely available separately online
`is left completely unencrypted, unprotected, unlocked, and out in the open for the public to access,
`copy, edit, distribute, perform, and display. Relying on its own Software License Agreement
`(“SLA”) and circular logic, Apple expects people to assemble the TCMs found only in the iPhone
`and thus retroactively lock themselves out of the IPSW file that they already have the ability to
`access, copy, edit, distribute, perform, and display. There are no TCMs in an IPSW.
`Apple makes four main legal errors in its Motion, each one of which is fatal to Apple’s
`Motion. First, Apple stretches the meaning of the term “access” to include everything that one can
`do with a computer program, including running it and interacting with the results of the execution
`of code. The meaning of access is much narrower. Second, Apple conflates the restrictions in its
`own SLA with the copyrights protected under Title 17. Apple cannot use the DMCA to secure for
`itself extra property rights that the Copyright Act does not convey. Third, Apple frames its analysis
`of “effective” TCMs under the DMCA around the TCMs that protect an iPhone. But the correct
`frame of analysis is the TCMs that prevent access to the IPSW file, containing iOS, that Apple
`distributes online, for free, and without any protection whatsoever. And fourth, Apple did not move
`for summary judgment on its claim of infringement, which alone is fatal to Apple’s DMCA claim.
`Furthermore, Apple’s argument relies entirely on the false premise that it presents in its
`opening sentence—one that embodies the very core dispute in this matter: “Corellium’s business
`is selling virtual iPhones.” Mot. at 1. The statement is not just materially disputed, it is patently
`false. Corellium sells a high-end security research platform. That platform, which includes a suite
`of security research tools, is capable of running portions of iOS with limited functionality in an
`environment that is only suitable for such research. The platform is not, however, usable as a
`substitute for a smartphone or tablet computer. Apple makes this false comparison because all of
`the TCMs that Apple alleges in this case require an actual, physical iPhone or iPad to function.
`These TCMs rely on a combination of software and hardware found only in the physical iPhone
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`1
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`and iPad itself. Those measures are built into the chips that are soldered inside those devices, and
`they do not exist in iOS files that Apple distributes freely online. Corellium does not sell a “virtual
`replica iPhone” and, as a result, Apple’s entire argument falls apart.
`The primary purpose, commercial use, and marketing of Corellium’s product is singularly
`about operating system research focusing almost exclusively on iOS security research. Corellium
`created its own advanced computer program that provides security researchers with much needed
`tools to interoperate with and study operating systems including Linux, Android, and iOS.
`Corellium presents these tools in an internet browser. An iPhone is a physical portable smartphone
`and an iPad is a tablet computer. The use cases for these products have zero intersection. Apple
`has presented no evidence that even one person mistook Corellium’s product for an iPhone or iPad
`or purchased Corellium’s product thinking it was an Apple product or would have otherwise
`purchased one of Apple’s devices. Corellium’s use of iOS, even if Corellium enabled the
`circumvention of one of Apple’s alleged TCMs (it did not), is quintessential fair use.
`Apple claims that Corellium’s product replaces rows of iPhones that researchers sometimes
`use to conduct their research. It is important to note that such rows of iPhones are violative of the
`terms of Apple’s iOS SLA and, under Apple’s interpretation, is a DMCA violation. In any event,
`even Apple’s own engineers do not believe that the Corellium product is a replacement for iPhones.
`Corellium has other defenses discussed below, but the heart of this dispute is that Apple is
`using this litigation against Corellium as a stalking horse in a bid to enforce the terms of its SLA,
`even where the user never agrees to those terms, through the DMCA. If successful, the effect on
`fair use, security research, testing, and competition would be unconscionable.
` STATEMENT OF MATERIAL FACTS
`II.
`
`APPLE DISTRIBUTES iOS ONLINE, FREE AND UNECRYPTED
`
`A.
`There is no dispute in this case that Apple distributes iOS online, for free, unencrypted,
`and with no password protection. Def.’s SMF1 ¶ 93. One need only click a link or enter an address
`into a browser for Apple to automatically, and without any questions, serve an IPSW file
`containing any one of the currently-active versions of iOS of your choosing. Id. ¶¶ 93-94. There is
`
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`1 References to “Def.’s SMF” are to Defendant Corellium, LLC’s Response to Plaintiff Apple
`Inc.’s Statement of Material Facts in Support of Apple’s Motion for Partial Summary Judgment
`on 17 U.S.C. § 1201 and Response Statement of Additional Material Facts in Opposition
`Thereof, filed concurrently with this Opposition.
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`2
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`also no dispute that these IPSW files contain mostly unencrypted files that comprise iOS and are
`immediately available to browse, edit, copy, and re-distribute, publicly display, and publicly
`perform without restriction. Id. ¶¶ 9, 99. Likewise, there is no dispute that Corellium does not
`unencrypt or in any way use any of the encrypted portions of the IPSW files. Id. ¶¶ 55, 84, 86.
`Finally, there is no dispute that third parties download every version of these IPSW files from
`Apple that has ever been released and redistribute them on their own websites. Id. ¶ 93.
`CORELLIUM SELLS A TOOL THAT ENABLES ITS USERS TO
`B.
`CONDUCT HIGH-END SECURITY RESEARCH
`
`The Corellium product is specialty software built by Corellium to facilitate security
`research into operating systems including Linux, Android, and iOS. Def.’s SMF ¶ 115. Among its
`many unique features, Corellium’s product provides the ability for researchers to 1) visualize in
`real time the input and output processes of the operating systems that are being researched; 2)
`freeze the processes in the operating system and study a specific state of those processes; 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 multiple experiments from the same starting point. Id. ¶ 114.
`Corellium does not sell anything similar to a consumer iPhone or iPad product. Even if a
`security researcher, for some reason, wanted to use an instance of iOS running on Corellium in a
`way that resembled the use of a consumer iPhone or iPad, they could not. Id. ¶¶ 36, 91. Corellium’s
`virtual environment cannot be used, for example, to make calls, receive text messages, take photos,
`use iTunes, download apps from the App Store, navigate with GPS, or pair Bluetooth devices. Id.
`It lacks the processing power to play video games and, perhaps most importantly, Corellium does
`not sell a portable electronic device. See id. ¶¶ 36, 115.
` ARGUMENTS AND AUTHORITIES
`III.
`
`C.
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`LEGAL STANDARD
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`Standard
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`1.
`Summary judgment is appropriate when “the pleadings . . . show that there is no genuine
`issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); HCA Health Servs. of Ga., Inc. v.
`Employers Health Ins. Co., 240 F.3d 982, 991 (11th Cir. 2001). Once the moving party
`demonstrates the absence of a genuine issue of material fact, the non-moving party must “come
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`forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus.
`Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). A Court must
`view the record and all factual inferences therefrom in the light most favorable to the non-moving
`party and decide whether “‘the evidence presents a sufficient disagreement to require submission
`to a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Allen v.
`Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Anderson, 477 U.S. at 251-52)).
`Digital Millennium Copyright Act
`2.
`Section 1201(a)(2) of the Digital Millennium Copyright Act (DMCA) states that
`No person shall manufacture, import, offer to the public, provide, or
`otherwise traffic in any technology, product, service, device,
`component, or part thereof, that:
`
`(A) is primarily designed or produced for the purpose of
`circumventing a technological measure that effectively controls
`access to a work protected under this title;
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`(B) has only limited commercially significant purpose or use other
`than to circumvent a technological measure that effectively controls
`access to a work protected under this title; or
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`(C) is marketed by that person or another acting in concert with that
`person with that person's knowledge for use in circumventing a
`technological measure that effectively controls access to a work
`protected under this title.
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`17 U.S.C. § 1201(a)(2) (emphasis added); Section 1201(b) is very similar to Section 1201(a)(2).
`It focuses on measures that protect “a right of a copyright owner under this title in a work or a
`portion thereof.” 17 U.S.C. §§ 1201(b) (emphasis added). The “right[s] of a copyright owner under
`this title in a work” refers to the copyrights granted under Title 17. See 17 U.S.C. §§ 101,102,106,
`and 107. Notably, “idea, procedure, process, system, method of operation, concept, principle, or
`discovery” are carved out of the subject matter of copyright protection by Section 102(b) as is fair
`use under Section 107. Id.; 17 U.S.C. §§ 102(b), 107 (1999). Section 106 grants a copyright owner
`the exclusive rights to reproduce, prepare derivative works, distribute copies, publicly perform,
`and publicly display such a copyrighted works. 17 U.S.C. §§ 106, 107.
`
`Section 1201(c) states that:
`(1) Nothing in this section shall affect rights, remedies, limitations,
`or defenses to copyright infringement, including fair use, under
`this title.
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`4
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`(2) Nothing in this section shall enlarge or diminish vicarious or
`contributory liability for copyright infringement in connection with
`any technology, product, service, device, component, or part
`thereof. . .
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`(4) Nothing in this section shall enlarge or diminish any rights of
`free speech or the press for activities using consumer electronics,
`telecommunications, or computing products.
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`17 U.S.C. § 1201(c)(1),(2), and (4) (emphasis added).
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`D.
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`APPLE’S FREE UNENCRYPTED DISTRUBUTION OF iOS ONLINE
`WITH ZERO TECHNOLOGICAL MEASURES IS FATAL TO ITS DMCA
`CLAIMS
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`1.
`
`Under 1201(a) iOS Object Code is Accessed when an IPSW is
`Downloaded, Unencrypted, from Apple
`
`The correct frame of reference for the DMCA analysis here is the publicly available IPSW
`file alone, not the capabilities and TCM built into an iPhone or an iPad. Apple makes iOS available
`online for free and unencrypted in what are called “IPSW” files—a format akin to a ZIP file
`archive. See Pls.’s SMF2 ¶ 8. There is no TCM that stands between the download link to Apple’s
`server and any person in the world who wants to download an IPSW. Id. Corellium does not pull
`IPSW files from an iPhone or iPad, but rather obtains the IPSW file from these Apple servers, just
`like anyone else in the world can. Def.’s SMF ¶ 93.
`“Because the statute refers to ‘control[ling] access to a work protected under this title,’ it
`does not naturally apply when the ‘work protected under this title’ is otherwise accessible.”
`Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 546–47 (6th Cir. 2004).
`“[O]ne would not say that a lock on the back door of a house ‘controls access’ to a house whose
`front door does not contain a lock . . . and it seems clear that this provision does not naturally
`extend to a technological measure that restricts one form of access but leaves another route wide
`open.” Id. at 547. The IPSW is a route left wide open.
`Apple’s iOS is “access[ed]” by a Corellium user when it is downloaded in unencrypted
`form directly from Apple. Computer programs are considered “literary works” under copyright
`law, though they are afforded less protection than traditional literary works. See Bateman v.
`
`
`2 References to “Pls.’s SMF” are to Apple Inc’s Statement of Material Facts in Support of
`Apple’s Motion for Partial Summary Judgment, ECF No. 455.
`
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`Mnemonics, Inc., 79 F.3d 1532 1539, n.18. (11th Cir. 1996); Sega Enterprises Ltd. v. Accolade,
`Inc., 977 F.2d 1510, 1526 (9th Cir.1992). Copyrighted code is protected in the form of either source
`code or object code. Lexmark, 387 F.3d at 533. “[A]ccess” to copyrighted object code occurs, if at
`all, when iOS is downloaded in unencrypted form from the internet. By Apple’s own admission,
`Corellium does not provide any tools to unencrypt or use any of the encrypted files in the IPSW
`files. Pls.’s SMF ¶ 49. See also Def.’s SMF ¶¶ 49, 55, 86. Only files that are already unencrypted
`are used for security research. Def.’s SMF ¶ 55. Thus, the inquiry under 1201(a) ends. See
`Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1196, n.13 (Fed. Cir. 2004)
`(“[Section] 1201(a)(2) trafficking liability cannot exist in the absence of § 1201(a)(1) violations”);
`See also H.R. REP. 105-551, 39; S. REP. 105-190, 29 (“This definition applies to subsection (a)
`only, which covers protections against unauthorized initial access to a copyrighted work.”).
`After a copyright is “access[ed],” all future possible forms of access are irrelevant. See
`Lexmark, 387 F.3d at 547. (“The authentication sequence, it is true, may well block one form of
`‘access’—the ‘ability to…make use of’ the Printer Engine Program by preventing the printer from
`functioning. But it does not block another relevant form of ‘access’—the ‘ability to [ ] obtain’ a
`copy of the work or to ‘make use of’ the literal elements of the program (its code). Because the
`statute refers to ‘control[ling] access to a work protected under this title,’ it does not naturally
`apply when the ‘work protected under this title’ is otherwise accessible.”)
`Apple contends that even after the IPSW has been accessed online, running or executing
`portions of it is also “access” under the DMCA. But, again, Apple is wrong. The “work protected
`under this title,” to the extent any copyrightable material even exists therein, comprises object code
`and the icons and wallpaper images—all things that are unencrypted and available immediately
`upon downloading an IPSW. See Def.’s SMF ¶¶ 40, 99. Critically, the execution of iOS code
`results in the output of a computer program, which is purely functional and not protected by
`copyright. Bateman, 79 F.3d at 1547 n.33 (“In no case [] should copyright protection be extended
`to functional results obtained when program instructions are executed. . . .”).3
`
`
`3 Apple’s alleged copyrights in the look, feel, layout, interactions, interactive elements, and
`responses to a users’ commands of its home screen are not at issue in this case. See Mot. at 3. No
`such copyright registrations have been asserted here that cover these, nor could such a copyright
`registration exist that protects such a broad list of every earthly kind of intellectual property
`including trademark, trade dress, and patent.
`
`
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`6
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`Apple sidesteps the issue of its expansion of “access” by citing Psystar. Apple misleadingly
`summarizes Psystar to imply that the court found that Psystar violated the DMCA by replacing
`the bootloader. Mot. at 10-11. The court did no such thing. Apple, Inc. v. Psystar Corp., 673 F.
`Supp. 2d 931, 940-942 (9th Cir. 2009). The court found a violation of sections 1201(a)(2) and
`(b)(1) only because Psystar decrypted Apple’s encrypted macOS X files. Id. at 931, 938-939. Here,
`no such decryption takes place. The court does not mention the bootloader once in its DMCA
`analysis. Id. at 938-939. Instead, the bootloader only played a role in the infringement analysis, as
`it should. Because Corellium, unlike Psystar, does not decrypt Apple’s allegedly copyrighted
`works protected by encryption, Psytar is inapposite.4
`Because iOS is made available online unencrypted in IPSW files and because access is
`achieved the moment an IPSW file is downloaded, Apple’s 1201(a) claim fails as a matter of law.
`No Technological Measures Prevent the Public from Copying, Editing,
`2.
`Distributing, Performing, or Displaying the Contents of an IPSW file
`
`The IPSW and any portion of its files or folders can be copied, distributed, changed, altered,
`edited, manipulated, and publicly performed, and displayed without encountering any TCMs.
`Def.’s SMF ¶¶ 40, 55. This IPSW file contains the entirety of Apple’s allegedly copyrighted iOS
`object code, icons, and wallpapers. As a result, Apple’s 1201(b) claim also fails.
`Notably, Apple relies heavily on the opinion of the one expert in this case who has not
`signed on to the protective order and has not had access to or the ability to review any of the
`technology actually at issue in this case—Corellium’s security research industry expert Mr.
`Stamos. Mot. at 1, 3, 12; Pls.’s SMF ¶¶ 64, 66; Def.’s SMF ¶¶ 23, 64. While Mr. Stamos noted
`that his opinions were “drawn upon [his] technical experience” and that he understood at a high-
`level concepts such as the utility of “virtualization and debugging to the finding and reporting of
`security flaws in operating systems” generally, he was clear that his opinion was focused on the
`“operation of the security research community and how that community interacts with large tech
`companies like Facebook or an Apple,” a concise summary that notably omits any mention of
`opinions on the way the technology at issue here operates “under-the-hood.” Def.’s SMF ¶ 116. It
`
`
`4 The Psystar court cited to Chamberlain in its discussion of DMCA liability. Psystar 673 F.
`Supp. 2d at 941. In relevant part, Chamberlain states that “the DMCA . . . . created trafficking
`liability . . . under § 1201(b) for facilitating infringement.” Chamberlain Grp., Inc. v. Skylink
`Techs., Inc., 381 F.3d 1178, 1195–96 (Fed. Cir. 2004) (emphasis added). Apple has not moved
`for summary judgement on its infringement claim.
`
`
`
`7
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`Case 9:19-cv-81160-RS Document 512 Entered on FLSD Docket 05/26/2020 Page 13 of 27
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`is telling that Apple must lean so heavily on inadmissible evidence from someone with no direct,
`technical knowledge of how Corellium’s technology operates. E.g. id. ¶¶ 23, 64. In any event, this
`inadmissible evidence is irrelevant because the security of the iPhone is not at issue here; only the
`non-existent security of the IPSW file is at issue.
`APPLE’S ALLEGED TCMs ARE NOT IN THE IPSW DISTRIBUTED
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`ONLINE
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`Apple relies on the following alleged TCMs to support its 1201(a)(1) and (b)(1) claims:
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`These alleged TCMs do not “effectively control…access” nor protect “rights of a copyright
`owner” for three reasons: (1) they only exist on an iPhone, not in an IPSW; (2) they are not there
`to restrain access to protect Apple’s cognizable copyrights; and (3) if they did exist in the IPSW,
`they would not be encountered until well after access, copying, editing, distribution, public
`performance and public display was already possible.
`The first three alleged TCMs exist only in a physical iPhone or iPad and protect neither
`access nor copyrights in an IPSW file. See Def.’s SMF ¶¶ 16, 17, 19, 41, 43, 44, 48, 83, 92, 97,
`98. This is why, throughout its Motion, Apple misleadingly shifts back and forth from “iOS” to
`“an iOS device” or an “iPhone” when doing so is convenient.
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`Case 9:19-cv-81160-RS Document 512 Entered on FLSD Docket 05/26/2020 Page 14 of 27
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`5 References to “PEX” are to Plaintiffs’ Exhibits. See Plaintiff Apple Inc.’s Index of Exhibits in
`Support of Its Motion for Partial Summary Judgment (filed under seal).
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`Case 9:19-cv-81160-RS Document 512 Entered on FLSD Docket 05/26/2020 Page 15 of 27
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`These three alleged TCMs do not exist in the IPSW file and are thus ineffective. See
`Lexmark, 387 F.3d at 547 (“one would not say that a lock on the back door of a house ‘controls
`access’ to a house whose front door does not contain a lock.”). Apple’s alleged TCMs in the IPSW
`are just a series of hopeful suggestions for how to assemble Apple’s lock. Many of the pieces that
`would form such a lock are missing from the IPSW because they are only hard coded into iPhones
`and iPads. See, e.g., Def.’s SMF ¶ 7. Apple seems to believe that the strictures of its SLA require
`people who download the IPSW to surrender their ability to access and copy the IPSW that they
`otherwise already have and, instead, complete and assemble the lock according to Apple’s
`specifications by placing the IPSW in an iPhone or iPad. Essentially, Apple leaves the door open
`with a note asking whoever walks in to build a lock and close the door behind themselves from the
`outside.
`Apple’s logic is circular: You cannot install iOS on non-Apple hardware because Apple
`hardware would prevent you from installing iOS on non-Apple hardware. Thus, if you try to install
`iOS on non-Apple hardware, Apple hardware would prevent you from installing. To fix this
`obvious logical flaw, Apple relies on the terms “unauthorized copying” or “unauthorized use”
`throughout its brief instead of the more strict actual statutory requirements for TCMs that protect
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`Case 9:19-cv-81160-RS Document 512 Entered on FLSD Docket 05/26/2020 Page 16 of 27
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`“access” or the “rights of a copyright owner under this title.” Compare Mot. at 1, 2, 5, 6, 7, 8 with
`17 U.S.C. §§ 1201(a)(2), (b)(1). By doing so, Apple breaks the circular logic loop with its own
`SLA. Apple’s position is that the IPSW is not authorized on non-Apple hardware and, as a result,
`it must be installed on Apple hardware. But the DMCA concerns itself with TCMs at the point of
`access or copyright exercise, not license agreement terms.
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`The remaining alleged TCMs—the trust cache and PAC—also have nothing to do with
`access to iOS or protecting Apple’s rights as t