Re: Altering Programs

On Tue, 16 Feb 1999, Howard Zaharoff <hgz[_at_]buslaw128.com> writes:
>
> I can't believe that any court in its right mind would ever hold
> that a student reselling a book that he or she had marked with notes and
> highlights constitutes the infringing distribution of a derivative work.
>
> What I could imagine -- though I believe (hope) unlikely -- is a
> court holding that someone purchasing multiple copies of a single book,
> marking them all with the same standard set of edits, and reselling them
> at a higher price is the distribution of an infringing derivative work.
> Again, I think the logic behind such a ruling (and the Mirage group of
> cases) flawed; but at least I could see application of the same flawed
> logic to this situation.
>
> But would a court apply that logic to the ordinary resale of used,
> marked up books by students? Naaaah. So your hypothetical law students
> are safe.
>

This is perhaps a plausible economic justification for Mirage, though I agree with you that it is flawed even as applied there. But there is nothing in the opinion, and certainly nothing in the statute, that allows one to distinguish derivative works from noninfringing works on the basis of how much you can charge for the revision. [The fair use defense *might* allow a court to draw such a distinction, but at that point we've conceded that Mirage means all these works are infringing, and we're falling back on defenses].

Mark Lemley
<mlemley[_at_]mail.law.utexas.edu> Received on Wed Feb 17 1999 - 16:07:07 GMT