Re: Altering Programs

On 02/11/99, Ari Kahan <akahan[_at_]netcom.com> wrote:
>
> So do you think Mirage means that if I write marginal notes
> in a book that I own I've created a derivative work and might
> only be saved if I scream "fair use" loud enough? (This isn't
> a rhetorical question, or a question designed to make your
> argument looks silly: I'm concerned that this may be what
> Mirage means.)

I agree with both Mark Lemley and Kerry Konrad. Yes, I think Mirage means that this is a derivative work, and is therefore infringing UNLESS it is a fair use. However, I agree that it will very likely be considered a fair use. Selling the written-in book, on the other hand, is probably an infringement under Mirage (which is one good reason to question its reasoning), but of course, as a practical matter it is extremely unlikely that anyone will complain.

My own view is that the derivative work right is not an independent right, but that it is infringed only if one of the other four rights is also infringed. Hence, there must an unauthorized reproduction, a distribution (not otherwise allowed by the first-sale doctrine), a public performance OR a public display. I think this view explains a lot of cases (including Galoob), and it is consistent with the legislative history that fixation is not required. But my view suffers from the drawback that the literal language of the Act doesn't support it; one has to read the Act with policy in mind, which is an approach currently out of favor in the federal courts.

> Or that if I buy a computer program and edit the object code
> so that it'll perform a little differently? (For example,
> I buy a program that only prints to LPT1, but my printer is
> hooked up to LPT2, so I modify the object code on the
> hard drive so that it'll print to my printer?)

Same; but as Kerry Konrad points out, it is authorized by 117(1).

> What if I do this computer program trick, but I don't modify
> the code on the hard drive? Instead, I have a little program
> running in background that alters the object code every time
> it loads into RAM, by rewriting a couple bytes of RAM?

This goes to the issue of whether RAM copies are "copies" within the meaning of the act (fixed in a tangible medium), and the emerging consensus of courts and Congress is that they are, notwithstanding the language to the contrary in the legislative history to the 1976 Act.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Sat Feb 13 1999 - 22:51:54 GMT