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

I asked about an issue that apparently has been discussed before, whether simply modifying a work (if you don't make a copy in the course of your modification) is permissible, notwithstanding section 106's prohibition on "preparation of derivative works".

Bob Stock <bstock[_at_]ucla.edu> replied, saying:
>
> 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).

While appreciating Bob's effort, I don't find it wholly satisfying to conclude that the answer to the question is "there's implied consent because the purchaser would intuit that this is so" or "don't worry; you won't get caught."

Martin's response seems to make the claim that you're not violating the exclusive right to prepare derivative works unless you're ALSO violating the exclusive right to copy:

> 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.

But I would ask, Is "reproduction or sale" REALLY implicit in making derivative works?

If Martin's right, then what's the point of the "derivative work" clause (except perhaps to say that you're not off the hook for copying, even if you first modify the work you're copying)?

The rationale for Martin's position, as articulated in the cases, seems to be that if you don't copy, you're not depriving the copyright holder of the income to which he's entitled; therefore, it's okay, at least so say the cases. (This seems to me to confuse fair use with infringement, but that happens all the time.) Indeed, the cases Martin points to seem to be concerned with whether the original author is being properly rewarded for his efforts, notwithstanding the alleged infringer's activities.

I think it's possible, by creating a derivative work, to deprive the copyright holder of income, even if you do not copy or distribute the derivative work. In such a case, should there be liability for infringement? Take the following example (which is of a type that may become more and more common as technology/compatability issues proliferate):

West Publishing distributes copyright-protected software for use by consumers with the Westlaw service. West gives the software away free, or sells it for a very low price, because the real income comes from people using the software with Westlaw's database, which people pay to access through the software.

Suppose I'm a competitor of West, and I offer a service called "Eastlaw." I have independently collected more-or-less the same materials that West offers through its service, but I charge half as much for access time. My service is a clone of West's: It accepts input in the format generated by the Westlaw software, and responds in a manner that the Westlaw software can understand. (That is, it mimics West's protocol; legal, I think, under Computer Associates, Lotus v. Borland, etc.)

Since there's a huge installed base of Westlaw software users out there, and since I don't want to write and distribute software (I'm in the database business, not the software business), I tell people that if they'd like to access my database instead of West's, they should just change the access number that their Westlaw software dials, and it'll call my service instead. Otherwise, everything will be exactly the same.

Anticipating a trademark action from West ("the software says "WESTLAW" but it's actually getting data from Eastlaw, and this is mislabelling, etc."), I distribute free of charge a little computer program that, when run on my customer's PC's, ALTERS the Westlaw software so that it now displays the EASTLAW name to the screen instead of the Westlaw name: that is, where it used to say "Dialing Westlaw..." now it says "Dialing Eastlaw...."

Am I committing contributory infringement by inducing my customers to run a program that will alter their copyrighted Westlaw software so that it displays a correct message to the screen when contacting my Eastlaw database? Note that no copy of the Westlaw software is being created: it's merely being modified. Heck, I'll even supply a second program that changes the software back to its original form if customers later decide they don't like my service and want to switch back.

West would presumably argue that this modification is part of a means to deprive them of income, and should not be permitted. I might argue that my customers BOUGHT that software, thank you, they own it, they're entitled to paint moustaches on it if they want to, provided they don't make copies.

Assuming for the moment that Section 117 ("Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided that such new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner...") doesn't apply: after all, the user is adapting the computer program for the purpose of utilizing it with a particular SERVICE, not with his MACHINE. (We could argue about that, but why pollute a nice example?)

Does Eastlaw get off the hook under Martin's Rule (perhaps it's not fair to Martin to name this rule after him...) ("If there's no copying, there's no derivative work.") Or, is Eastlaw hosed, because the modification-without-copying is nevertheless part and parcel of cutting into West's revenue?

-Ari

Ari Kahan
<akahan[_at_]netcom.com>

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