On 3/27/98, Ari Kahan <akahan[_at_]ix.netcom.com> wrote:
>
> Perhaps I'm missing something, but how does the first sale doctrine
> permit an owner of a copy to "write notes on it, paint mustaches on
> it, shred it, or even burn it"? Section 109 says that the owner of
> a copy may "sell or otherwise dispose of the possession of" the
> copy. It doesn't say anything about modifying it, or creating
> a derivative work from it.
[snip]
> Apart from the fair use defense, what is the source of the notion
> that we can modify our copies of works notwithstanding section 106(2)?
> It makes sense that such a right should exist, but where does it
> come from?
We've had discussions on this issue before. The one I remember best is Professor Mark Lemley and students writing notes in his textbooks. In those facts my claim was that Mark impliedly consented to permit students to write notes in the textbook because that would be considered a normal thing to do with a textbook. You could make the same argument, but with greater difficulty, with painting, shredding, and burning, by simply concluding that by purchasing a copy you have an implied right to do almost whatever you want with that copy. Certainly, that would be the intuitive reaction of the purchaser. But section 109 makes life hard by referring only to sale or dispossession (perhaps shredding and burning could be considered dispossession, but I think that's a stretch).
Nonetheless, the only way in which someone is going to catch you is under the derivative work right (putting aside section 106a and visual art). Shredding and burning destroy a work, so that could not create a derivative work because you haven't created anything. Therefore, even though 109 may not permit the shredding or the burning, 106(2) would not bar it. Painting is the toughest of the ones you mentioned. There, depending on the creativity of your moustache and depending on which circuit you happen to be painting in, one could attempt to prove that you have violated the derivative work right. Realistically, this would only come up if, as in Mirage, you attempted to market and sell the copies, or if perhaps you pissed off the copyright owner so bad he couldn't think straight.
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