Apple Inc. v. Corellium, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12835
____________________
APPLE INC.,
Plaintiff-Counter Defendant-Appellant,
versus
CORELLIUM, INC.,
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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2 Opinion of the Court 21-12835
Before BRANCH and L UCK , Circuit Judges, and S ANDS,* District
Judge.
PER C URIAM :
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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21-12835 Opinion of the Court 3
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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4 Opinion of the Court 21-12835
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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21-12835 Opinion of the Court 5
“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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6 Opinion of the Court 21-12835
. . . 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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21-12835 Opinion of the Court 7
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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8 Opinion of the Court 21-12835
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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10 Opinion of the Court 21-12835
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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21-12835 Opinion of the Court 11
“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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12 Opinion of the Court 21-12835
“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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21-12835 Opinion of the Court 13
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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14 Opinion of the Court 21-12835
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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21-12835 Opinion of the Court 15
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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16 Opinion of the Court 21-12835
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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21-12835 Opinion of the Court 17
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.
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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
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21-12835 Opinion of the Court 19
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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20 Opinion of the Court 21-12835
“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
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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 function” than the original
pictures by “improving access to information on the internet ver-
sus artistic expression” (cleaned up));
Sony Comput. Ent., Inc. v.
Connectix Corp., 203 F.3d 596, 606 (9th Cir. 2000) (finding that a
PlayStation emulator was “modestly transformative” because the
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22 Opinion of the Court 21-12835
emulator “create[d] a new platform, the personal computer, on
which consumers can play games designed for the Sony
PlayStation”).2
Against all this, Apple advances three arguments—all unper-
suasive. First, Apple argues that “making verbatim copies of a cop-
yrighted work and converting [those works] into a different format
is not transformative.” Apple is right. In
Patton, for example, we
found no transformative use where “verbatim copies of portions of
. . . original books . . . ha[d] merely been converted into a digital
format.” 769 F.3d at 1262. Similarly, the Ninth Circuit held that it
was not transformative to convert copyrighted songs from CDs to
MP3 files for download because the “original work[s] [were]
merely retransmitted in a different medium.”
See A&M Recs., Inc.
v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001).
But this isn’t a case in which the original is simply repack-
aged in a different format. Corellium adds several features that are
not normally available on iOS. These include (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. They also
2 Apple tries to distinguish
Authors Guild by arguing that Google Books was
not “a potential substitute for the original books.” But the same is true here.
CORSEC is not a realistic substitute for iOS on iPhones because users can’t
use CORSEC to make phone calls, send text messages, take photos, navigate
with GPS, or download apps from the App Store.
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include, for example, the ability to modify the trust cache so that
researchers can install new programs on the device that allow the
user to perform fuzzing (a way to find bugs in a product’s code) or
other types of security research. The record, in other words, shows
that there wasn’t verbatim copying here. And even if there were,
Patton itself recognized that “verbatim copying may be transform-
ative so long as the copy serves a different function than the origi-
nal work.” 769 F.3d at 1262. Here, Corellium used iOS to serve a
research function, and not as a consumer electronic device.
Second, Apple contends that “[s]ecurity research is not a
transformative purpose because it is one of the purposes already
served by Apple’s works.” Apple says that “security researchers
have long used Apple-licensed versions of iOS to do their work.”
Corellium (in our view) rightly points out the flaw in this argu-
ment: it’s “like saying Google Books was not transformative be-
cause scholars could manually search books for keywords by going
to the library.” In other words, there’s no dispute that CORSEC
“adds features that are not available on retail iOS that are useful for
security research.” These features make security research far more
efficient.
See Fox News Network, LLC v. TVEyes, Inc., 883 F.3d
169, 177 (2d Cir. 2018) (noting “the transformative purpose of en-
hancing efficiency”). They also make possible deeper insights into
the software. The fact that iOS itself allowed for
some security re-
search before, then, can’t negate Corellium’s innovation (just like
sifting through books at the library didn’t negate Google Books’s
transformativeness).
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24 Opinion of the Court 21-12835
Third, Apple asserts that “the district court was wrong to
find—on summary judgment—that the purpose of [CORSEC]
is
security research.” For this, Apple mostly points to evidence show-
ing that customers can use CORSEC for multiple purposes. For
example, Corellium’s expert testified that security research wasn’t
CORSEC’s “exclusive use.” But transformativeness does not re-
quire unanimity of purpose—or that the new work be entirely dis-
tinct—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.
The Supreme Court made this point in
Google. In that case,
Google used Java’s code “for the same reason that [Oracle] created
those portions, namely, to enable programmers [to use shortcuts]
that would accomplish particular tasks.”
Google, 141 S. Ct. at 1203.
But, at a higher level, the purpose was to create a “new product
[that] offer[ed] programmers a highly creative and innovative tool
for a smartphone environment.”
Id. This higher-order purpose
was what made Google’s product transformative.
Id. As in
Google, the mere fact that
some purposes overlap does not pre-
clude a finding of transformative use.
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21-12835 Opinion of the Court 25
b. Commercial
“[W]e must also consider under the first factor whether [the
defendant’s] use is for a nonprofit educational purpose, as opposed
to a commercial purpose.”
Patton, 769 F.3d at 1263. In general, a
noncommercial purpose weighs in favor of fair use and a commer-
cial purpose weighs against fair use.
Id. But “the commercial or
nonprofit educational character of a work is not conclusive.”
Campbell, 510 U.S. at 585 (quotation omitted);
see also Nimmer on
Copyright § 13.05[A][1][c] (“Labeling a use as ‘commercial,’ in
other words, should not end the analysis.”).
In fact, while “a finding that copying was not commercial in
nature tips the scales in favor of fair use,” the “inverse is not neces-
sarily true, as many common fair uses are indisputably commer-
cial.”
Google, 141 S. Ct. at 1204. “Many of the most universally
accepted forms of fair use, such as news reporting and commen-
tary, quotation in historical or analytic books, reviews of books,
and performances, as well as parody, are all normally done com-
mercially for profit.”
Authors Guild, 804 F.3d at 219.
Like these uses, Corellium’s use was commercial. Corel-
lium sold its product for steep prices. But many fair uses are com-
mercial. “So even though [Corellium’s] use was a commercial en-
deavor,” that fact “is not dispositive of the first factor, particularly
in light of [CORSEC’s] inherently transformative role[.]”
Google,
141 S. Ct. at 1204;
see also Campbell, 510 U.S. at 579 (“The more
transformative the new work, the less will be the significance of
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26 Opinion of the Court 21-12835
other factors, like commercialism, that may weigh against a finding
of fair use.”).
* * *
In sum, CORSEC is moderately transformative. It alters iOS
in meaningful ways and makes possible new and improved forms
of security research. Corellium’s commercial use does little to
change our analysis. The first factor favors a finding of fair use.
The Nature of the Copyrighted Work
The second factor—the nature of the copyrighted work—
“calls for recognition that some works are closer to the core of in-
tended copyright protection than others, with the consequence
that fair use is more difficult to establish when the former works
are copied.”
Campbell, 510 U.S. at 586. “Under this factor, the
more creative a work, the more protection it should be accorded
from copying; correlatively, the more informational or functional
the plaintiff’s work, the broader should be the scope of the fair use
defense.” Nimmer on Copyright § 13.05[A][2][a].
The Supreme Court has explained that “computer programs
are primarily functional[,] mak[ing] it difficult to apply traditional
copyright concepts in that technological world.”
Google, 141 S. Ct.
at 1208;
see also Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510,
1524 (9th Cir. 1992) (explaining that “computer programs are, in
essence, utilitarian articles”);
Comput. Assocs. Int’l, Inc. v. Altai,
Inc., 982 F.2d 693, 712 (2d Cir. 1992) (noting that “a computer pro-
gram . . . is . . . a highly functional, utilitarian component in the
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21-12835 Opinion of the Court 27
larger process of computing”);
Connectix, 203 F.3d at 603 (“[T]he
fair use doctrine preserves public access to the ideas and functional
elements embedded in copyrighted computer software pro-
grams.”).
Like many computer programs, iOS is primarily functional.
As Apple has explained, “[a]n operating system is the software that
manages a computer’s most basic functions, including the user’s
interaction with the device.” And “iOS is Apple’s operating sys-
tem” for its iPhone, iPad, and other devices. We have no doubt
that iOS embodies a great deal of creativity. But it’s still a func-
tional program meant to run consumer electronic devices.
For these reasons, we conclude that iOS is “further . . . from
the core of copyright” than protected works like paintings, movies,
and books.
Google, 141 S. Ct. at 1202 (finding that the nature of
the copyrighted work weighed in favor of fair use where, as here,
the computer program’s “new creative expression” was “inher-
ently bound together with uncopyrightable ideas”). This factor
also favors fair use.
The Amount and Substantiality
The third factor—the amount and substantiality of the por-
tion used—“examines whether defendants have ‘helped them-
selves overmuch’ to the copyrighted work in light of the purpose
and character of the [defendant’s] use.”
Peter Letterese, 533 F.3d
at 1314 (quoting
Campbell, 510 U.S. at 587). The point, in other
words, is that inventors should not
needlessly copy from the
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28 Opinion of the Court 21-12835
original and take away from the original’s market. “The ‘substan-
tiality’ factor will generally weigh in favor of fair use where . . . the
amount of copying was tethered to a valid, and transformative,
purpose.”
Google, 141 S. Ct. at 1205.
Corellium’s use of iOS wasn’t just tethered to its transform-
ative purpose; it was necessary to achieving that purpose. Apple
has said so itself: “Full access to iOS is needed for Corellium’s vir-
tualization because if you’re going to run a virtualization environ-
ment, realistically you cannot do so without the entire operating
system available.” Apple is right. Security research requires the
use of the entire work because flaws may be found anywhere in the
code; anything less would risk vulnerabilities going undetected.
Because Corellium’s use was tethered to its transformative pur-
pose, the third factor favors fair use.
In response, Apple raises three arguments. None are con-
vincing. First, Apple claims that our case is like
Fox News Net-
work, LLC v. TVEyes, Inc. In
Fox News, TVEyes, a media com-
pany, “redistribute[d] Fox’s news programming in ten-minute
clips, which . . . likely provide[d] TVEyes’s users with all of the Fox
programming that they [would] seek.” 883 F.3d at 179. The Sec-
ond Circuit found that “[t]his factor clearly favor[ed] Fox because
TVEyes ma[de] available virtually the entirety of the Fox program-
ming that TVEyes users want[ed] to see and hear.”
Id.
We don’t find
Fox News persuasive. That’s because the
question here is not (as the
Fox News court supposed) whether
there was a large amount of copying. Instead, the question (at this
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21-12835 Opinion of the Court 29
stage) is whether the “copying was tethered to a valid, and trans-
formative, purpose.”
See Google, 141 S. Ct. at 1205;
see also Au-
thors Guild, 804 F.3d at 221 (noting that “[c]omplete unchanged
copying has repeatedly been found justified as fair use” when teth-
ered to fair use and not substitutive). In any event, our case differs
from
Fox News on the facts. Corellium has not made available
“virtually the entirety” of what users would “want” with iOS. For
example, CORSEC users cannot make phone calls, send texts, take
photos, or download apps. By contrast, TVEyes gave consumers
everything they would want from Fox News.
Fox News doesn’t
help.
Second, Apple argues that CORSEC “customers care only
about the function and ideas of the
portions of iOS they are analyz-
ing—not its many creative elements.” For this reason, Apple sug-
gests that Corellium has overhelped itself to iOS by including parts
of iOS in its program that individual researchers may not need. But
that would be like arguing that Google should make only a portion
of its millions of Google Books available to
each searcher based on
what each
particular searcher was interested in. Fair use doesn’t
require inventors to “follow the least efficient solution” or engage
in “wasted effort[s]” simply to avoid liability.
Connectix, 203 F.3d
at 605 (emphasis omitted) (quotation omitted).
Put another way, in
Authors Guild, Google had no way of
knowing which books—or which portions of books—individual re-
searchers would be interested in. So it was “necessary” for it to
copy millions of books so that it could “advise searchers reliably
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30 Opinion of the Court 21-12835
whether their searched term appears in a book (or how many
times).”
Authors Guild, 804 F.3d at 221. A similar thing is true
here. Corellium can’t know which parts of iOS any given customer
will be interested in studying or where a customer’s initial research
might lead. So Corellium must make iOS broadly available so that
researchers can target the portions of iOS relevant to their work.
Apple’s alternative—giving
each researcher access to only a por-
tion of iOS based on what each
particular researcher needs—is in-
feasible. Copyright doesn’t require such inefficiencies.
Third, Apple contends that the district court was wrong to
conclude it was “necessary for Corellium to copy entire IPSW
files.” But Apple conceded that it
was necessary for Corellium to
use all of iOS: “Full access to iOS is needed for Corellium’s virtu-
alization because if you’re going to run a virtualization environ-
ment, realistically you cannot do so without the entire operating
system available.” Corellium’s expert agreed, testifying that “you
could not provide a realistic research environment by picking and
choosing parts of iOS to emulate.” The evidence—and common
sense—supports this undisputed fact.
The Effect on Market Value
The fourth (and final) fair use factor looks to the secondary
use’s effect on the potential market for or value of the copyrighted
work. This factor “requires courts to consider not only the extent
of market harm caused by the particular actions of the alleged in-
fringer, but also whether unrestricted and widespread conduct of
the sort engaged in by the defendant would result in a substantially
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21-12835 Opinion of the Court 31
adverse impact on the potential market for the original.”
Camp-
bell, 510 U.S. at 590 (cleaned up).
“The central question,” in evaluating this factor, “is not
whether [the defendant’s] use of [the plaintiff’s] works caused [the
plaintiff] to lose
some potential revenue.”
Patton, 769 F.3d at 1276.
“Rather, it is whether [the defendant’s] use—taking into account
the damage that might occur if everybody did it—would cause
sub-
stantial economic harm such that allowing it would frustrate the
purposes of copyright by materially impairing [the plaintiff’s] in-
centive to [create] the work.”
Id. (cleaned up).
In assessing the effect on market value, our inquiry “must
take account not only of harm to the original but also of harm to
the market for derivative works.”
Campbell, 510 U.S. at 590 (quot-
ing
Harper & Row, 471 U.S. at 568). The relevant market is the
market for the original copyrighted work—in this case, iOS. So we
look to whether CORSEC would cause substantial economic harm
to the iOS market or any of iOS’s derivative markets in a way that
would materially impair Apple’s incentive to innovate.
We’ll start with the iOS market. We agree with the district
court that, even if it were widespread, CORSEC would not cause
any substantial harm to iOS’s market. That’s because CORSEC
makes for a poor substitute for iOS on a real iPhone. For example,
customers can’t use CORSEC to make phone calls, send texts, take
photos, navigate with GPS, connect to Bluetooth devices, or down-
load apps from the App Store. These are crucial features that lead
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32 Opinion of the Court 21-12835
consumers to buy iPhones running iOS. Nor is a virtual phone a
reasonable substitute for iOS running on a real phone.
Unsurprisingly, Corellium’s software—geared toward secu-
rity researchers and costing up to hundreds of thousands of dol-
lars—hasn’t exactly flown off the shelves. The record shows that
Corellium has sold only forty or so units of its product. Apple, by
contrast, has sold over two billion iOS devices. Even if CORSEC
has had some minor effect on Apple’s iOS market, it hasn’t caused
substantial economic harm to the iOS market such that it would
materially impair Apple’s incentive to innovate.
See Suntrust Bank
v. Houghton Mifflin Co., 268 F.3d 1257, 1275–76 (11th Cir. 2001)
(concluding that “the fourth . . . factor weigh[ed] in favor of” fair
use where the evidence suggested there was no “significant[]
harm” to the market).
We’ll now turn to iOS’s derivative market, which presents a
somewhat closer question. Apple argues that—even if CORSEC
doesn’t substantially harm the iOS market—CORSEC does sub-
stantially harm Apple’s derivative market for security products.
For example, CORSEC (Apple says) competes with Apple’s (1) iOS
Simulator, which “allows developers to work on a virtual iOS de-
vice”; (2) Security Research Device Program, which gives “custom-
ized iPhone[s] loaded with iOS to legitimate security researchers”;
and (3) Xcode Cloud, a forthcoming program that will enable re-
searchers “to remotely access iOS.”
While we must, in assessing market harm, “take account not
only of harm to the original but also of harm to the market for
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21-12835 Opinion of the Court 33
derivative works,”
Campbell, 510 U.S. at 590 (quotation omitted),
the Copyright Act doesn’t afford creators a monopoly over
trans-
formative markets. “[A] copyright holder cannot prevent others
from entering fair use markets merely ‘by developing . . . a market
for parody, news reporting, educational
or other transformative
uses of its own creative work.’”
Bill Graham Archives v. Dorling
Kindersley Ltd., 448 F.3d 605, 614–15 (2d Cir. 2006) (emphasis
added) (quoting
Castle Rock Ent., Inc. v. Carol Publ’g Grp., Inc.,
150 F.3d 132, 146 n.11 (2d Cir. 1998));
see also Ty, Inc. v. Publica-
tions Int’l Ltd., 292 F.3d 512, 520–21 (7th Cir. 2002) (“[O]wnership
of a copyright does not confer a legal right to control public evalu-
ation of the copyrighted work.”). In other words, a copyright
holder can’t prevent others from entering transformative markets.
See Dorling Kindersley, 448 F.3d at 614–15 (“Copyright owners
may not preempt exploitation of transformative markets.” (altera-
tion omitted)). “[B]ecause [transformative works] do not merely
supersede the objects of the original creation,” they “are less likely
to supplant the market for the copyrighted work by fulfilling de-
mand for the original.”
Patton, 769 F.3d at 1262 (cleaned up).
To be sure, the line between what is derivative and what is
transformative isn’t always clear. But we’re not without guidance.
On one side, “[p]aradigmatic examples of derivative works include
the translation of a novel into another language, the adaptation of
a novel into a movie or a play, or the recasting of a novel as an e-
book or an audiobook.”
HathiTrust, 755 F.3d at 95. Copyright’s
protection over derivative works generally reflects that a creator’s
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34 Opinion of the Court 21-12835
“right to control and profit from the dissemination of her work
ought not to be evaded by conversion of the work into a different
form.”
Authors Guild, 804 F.3d at 225. On the other side, paradig-
matic transformative uses include using a copyrighted work “for
purposes such as criticism, comment, news reporting, teaching[],
scholarship, or research.” 17 U.S.C. § 107;
see also Dorling Kinders-
ley, 448 F.3d at 614–15 (same).
As we’ve explained, Corellium’s product falls on the trans-
formative side of the line. Corellium not only “add[ed] something
new” to iOS but also created a product with “further purpose or
different character.”
Campbell, 510 U.S. at 579. Corellium added
new features that gave “researchers the ability to examine and un-
derstand both iOS itself and iOS-based applications in advanced
new ways[.]” By opening up the door for further research into op-
erating systems, Corellium created something transformative.
See
17 U.S.C. § 107 (listing “research” as a paradigmatic “fair use”). And
the Copyright Act doesn’t give creators, like Apple, a monopoly
over transformative inventions that enable research into their
product.
Cf. Patton, 769 F.3d at 1276 (“The goal of copyright is to
stimulate the creation of new works, not to furnish copyright hold-
ers with control over all markets.”).
The Second Circuit’s decision in
Authors Guild is on point.
There, the plaintiff-book-authors argued that they had a “deriva-
tive right” to use their books to create a search database like Google
Books, and that Google “usurped their exclusive market for such
derivatives.”
Authors Guild, 804 F.3d at 225. The Second Circuit
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21-12835 Opinion of the Court 35
disagreed, explaining that “derivative works generally involve . . .
changes of form,” like turning a book into a movie.
Id. at 215. “By
contrast, copying from an original for the purpose of . . . [the] pro-
vision of information
about it” is a transformative use.
Id. (empha-
sis added, footnotes omitted). The authors did not have “an exclu-
sive right to furnish the kind of information about the works that
Google’s programs provide[d] to the public.”
Id. at 225. The same
applies here. Apple doesn’t have a monopoly over transformative
research tools that supply information
about its operating system.
That doesn’t fall within its derivative market. Because there’s no
substantial harm to iOS’s market or its derivative market, the
fourth factor favors fair use.
Apple makes two main arguments in response. First, turn-
ing away from the market for the copyrighted work and its deriva-
tives, Apple argues that CORSEC harms the market for iPhones
(rather than iOS itself) because CORSEC “can replace racks of
physical devices” for software development and testing. But “the
relevant question . . . is whether the infringement impacted the
market for the copyrighted work
itself.”
Lexmark Int’l, Inc. v.
Static Control Components, Inc., 387 F.3d 522, 544 (6th Cir. 2004)
(emphasis added). Apple’s iPhone market is a
different market
from the iOS market. So Apple is focusing on the wrong market.
And even if the iPhone market were the relevant market for the
fourth fair use factor, it’s entirely speculative that Corellium’s soft-
ware—with no call, text, or other capabilities—would substantially
harm that market.
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36 Opinion of the Court 21-12835
Second, Apple argues that “[t]he fourth factor cuts sharply
against fair use for an additional reason: ample evidence shows
Corellium’s activities inflict harm to the public without providing
a countervailing benefit.” Apple hypothesizes that nefarious actors
may do bad things with Corellium’s software. But, even if this
were a relevant consideration under the fair use test, Apple has of-
fered no non-speculative evidence that CORSEC has ever harmed
the public.
See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th
Cir. 2005) (“[U]nsupported speculation does not meet a party’s bur-
den of producing some defense to a summary judgment motion.”
(alteration omitted)).
Balancing the Factors
The Supreme Court has explained that “the four statutory
factors [may not] be treated in isolation, one from another. All are
to be explored, and the results weighed together, in light of the
purposes of copyright.”
Campbell, 510 U.S. at 578. Here, the fair
use factors, weighed together, favor Corellium. First, Corellium’s
software is a transformative product that furthers copyright’s aims
in advancing science through research. Second, iOS is primarily
functional, so it falls outside the core of copyright’s protection.
Third, Corellium didn’t overhelp itself to iOS. And fourth, we can’t
say, as things stand, that CORSEC substantially harms the iOS mar-
ket or any iOS derivative market. In the end, by creating an inno-
vative product that advances scientific progress without supersed-
ing iOS, Corellium has captured the balance that copyright is after.
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21-12835 Opinion of the Court 37
Without foreclosing a future claim based on different facts, we con-
clude that Corellium—on this record—made fair use of iOS.
The Icon-and-Wallpaper Infringement Claim (Count Two) and
the Contributory Infringement Claim (Count Three)
While we agree with the district court that Corellium is en-
titled to summary judgment on count one, we remand as to the
remaining counts. “It is the general rule, of course, that a federal
appellate court does not consider an issue not passed upon below.”
Singleton v. Wulff, 428 U.S. 106, 120 (1976). “An appellate court
does, however, review summary judgment decisions de novo, and
we may in our discretion resolve questions not addressed by the
district court.”
Clark v. Coats & Clark, Inc., 929 F.2d 604, 609 (11th
Cir. 1991) (cleaned up).
Here, the district court, after carefully analyzing the first
count, did not separately consider counts two and three. “Given
the extent of the record below, and the comparatively minor atten-
tion that [these] issue[s] had in appellate briefing, we exercise our
discretion not to address [those claims] in the first instance.”
Mamani v. Sanchez Bustamante, 968 F.3d 1216, 1240 n.26 (11th Cir.
2020);
see also, e.g.,
Clark, 929 F.2d at 609 (electing “not to exercise
our discretion to address in the first instance the question whether
[the defendant] met its initial [r]ule 56 burden”).
CONCLUSION
We affirm the district court’s summary judgment for Corel-
lium on count one. But we vacate the summary judgment for
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38 Opinion of the Court 21-12835
Corellium on the remaining counts and remand for further pro-
ceedings.
AFFIRMED in part, VACATED in part, and REMANDED.
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