Re: Altering Programs

On Wed, 17 Feb 1999, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> 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.

  I propose the textbook situation is distinguishable from Mirage in that the purpose of the textbook is to provide a learning vehicle for the subject matter, and that learning vehicle anticipates and endorses the use of the book by a student, in a classroom setting, highlighting or taking notes. If adding notes would infringe, then would not highlighting the book also infringe? For the student using a textbook for herself, this appears to me to be a fair use, and not the creation of a derivative work.

  In the extreme, marking a law school textbook is analogous to a child coloring a coloring book, or a dress pattern being cut out and used to create shapes of material. A derivative work by its nature must be a new work, and not a transformation of the work in a manner that was intended when the original was sold. This is my opinion, and I have not seen this in a holding in a case. Has anyone else?

-- 
Thomas E. Workman Jr.
41 Harrison Street
Taunton, MA 02780

EMAIL: tworkman[_at_]erols.com
Phone: (508) 822-7777
Fax:   (508) 824-2820