Re: Altering Programs

On 02/16/99, Howard G. Zaharoff <hgz[_at_]buslaw128.com> wrote:
>
> 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.

     But the whole point of Mirage is that there doesn't have to be a distribution in order for the derivative work right to be violated. Under Mirage, it is a violation merely to CREATE a derivative work, whether or not it is sold.

     Having said that, I agree that it is highly unlikely that a court would hold the student liable in this instance. But I think it is not inconceivable that the court's rationale would be that this WAS an infringement, but that creating the derivative work [and reselling it] was a fair use, because it is economically no different from selling the lawfully-purchased book (unaltered), and also selling one copy of the student's notes.

     I suspect the only reason we haven't seen such a case is because no one has bothered to sue. It isn't economical, and the textbook companies can avoid significant competition simply by updating their editions every few years.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Feb 17 1999 - 21:51:08 GMT