Re: Software to Block Ads -- Is this an illegal device?

On 3/27/98, Ari Kahan <akahan[_at_]ix.netcom.com> wrote:
>
> Well, this is ancient history, but I've been catching up on my reading
> and was confused by this:
>
> On 2/25/98, S. Martin Keleti <keleti[_at_]manifesto.com> wrote:
> >
> > I think that the hypotheticals regarding tearing out pages from books
> > and wallpaper made from magazines are closer to each other than the mute
> > button, and their legality is more easily explained by the first sale
> > doctrine, as enshrined in s. 109 of the Copyright Act and decisional
> > law. The book or magazine is a copy of one or more of the following:
> > a literary work, pictorial work, etc. The owner of an authorized,
> > tangible copy, can write notes on it, paint mustaches on it, shred it,
> > or even burn it without incurring copyright liability, so long as such
> > use does not overstep the limitations on the right of distribution and
> > _public_ display (as opposed to Ari's _home_ bathroom, which we should
> > hope is private). These alterered copies might be derivative works
> > whose preparation the Copyright Act does not expressly permit, but
> > without further distribution or duplication, the first sale doctrine
> > would appear to permit it.
>
> 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. I've looked at a few cases, including:
> Columbia v. Aveco; American International v. Foreman; Hearst v.
> Stark; Disney v. Basmajian; and Cosmair v. Dynamite. All of them
> refer to the first sale doctrine as giving a bona fide purchaser
> the right to sell or transfer his copy; none say he has the right
> to modify his copy.
>
> 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?

First of all, later on in my posting which from which the above excerpt comes the following discussion:

> The cases in this area go back over a century, and I don't believe
> (although I haven't researched the point) that the 1976 Act reverses
> this line of authority. Clemens v. Estes, 22 Fed. 899, quoted in
> Harrison v. Maynard, Merrill & Co., 61 F. 689 (2d Cir. 1894), in
> turn cited in Independent News Co. v. Williams, 293 F.2d 510 (3d
> Cir. 1961). There is a trial court level case, however, that holds
> otherwise, but its precedential value is limited and its reasoning
> slightly suspect (at least with regard to the copyright issues; it
> appears on firmer ground with regard to trademark law and unfair
> competition): National Geographic Soc. v. Classified Geographic,
> Inc., 27 F. Supp. 655 (D. Mass. 1939).

A further example would be Lantern Press, Inc. v. American Publishers Co., 419 F. Supp. 1267 (E.D.N.Y. 1976), holding that purchasing authorized paperback copies, binding them in hard covers, and re-selling them as hard cover copies was not an infringement, even though the hard cover rights had been reserved by the author. Even rebinding in combination with other works has been held to be noninfringing. Fawcett Publishing, Inc. v. Elliott Publishing Co., 46 F. Supp. 717 (S.D.N.Y. 1942).

Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F. 2d 1341, 1344 (9th Cir. 1988), held that mounting selected pages removed from an art book, and mounting them individually on tiles which were then sold constituted copyright infringement. The first sale would not protect this if it were an adaptation, but unfortunately the court held it _was_ an adaptation. (Ari, if you're in the 9th Circuit, your bathroom wallpaper culled from People Magazine is a problem, but I would argue that Mirage is wrongly decided.) Nimmer, in s. 8.12[C] discusses Mirage and its detractors (himself included, as well as yours truly). We're not alone, either. "Lee v. Deck the Walls, Inc., 925 F. Supp. 576, 582-83 (N.D. Ill. 1996), rejects the reasoning of Mirage Editions and hence reaches the correct disposition of the first sale defense." n.196.1.

It all comes down to whether copying is taking place. Writing notes to oneself in the margins of a book is not copying--it's not making a derivative work; implicit in making derivative works is the further exploitation of such transformed works through reproduction or sale. I would make the same case for the millions of students (inter alia) who use highlighting pens while perusing their textbooks. Despite the fact that some of them start to look like abstract works of art ("let's see, pink for major points, green for vocabulary words to memorize, yellow for clarify in discussion group or office hours. . . "), that's not making derivative works. The first sale doctrine allows disposition by sale or otherwise: rebinding, burning, cutting up and pasting on private walls, etc. In deciding whether there is a derivative work, a line has to be drawn. The case law makes it clear that the right to distribute does not mean control of the tangible copies or phonorecords for the length of the copyright term in pristine form; scratching (vinyl phonograph records) or clipping coloring, doodling, etc. (paper copies) are permissible.

M.

S. Martin Keleti
<keleti[_at_]manifesto.com> Received on Sun Mar 29 1998 - 03:33:07 GMT