Who wins and why? How is this different from or the same as Maisel v. Baio?
I think the concept of derivative work is more important here. IANAL but I suspect there's a difference between copying someone's Skip List class (maybe modding it a bit) vs. writing your own even if your own compiles to mostly-the-same binary. Your own wasn't derivative even if the end result was very similar.
Baio was mostly the same. Koons was not. See these. http://newsgrist.typepad.com/underbelly/images/silksandals.j... http://newsgrist.typepad.com/underbelly/images/koonsniagara_...
The second picture by Koons is transformative. Baio's is not even close to Koons.
Do I think people should be able to make pixelized versions of photos for whatever purpose? Sure. Do I think the current law would be okay with that? No.
These pictures show what the paper writer is actually using as the "transformativeness" example. Baio never bothered to dig into the writer's citations to figure out the details. Trying to claim his own work is similar to the Blanch v. Koons case is a mistake. They aren't alike at all.
For example, are you changing the names of all the system calls? That will break lots of software. You have to figure out how important that is.
That's a discussion that really has no analogy in a discussion about transforming a real photograph to appear like it came from a Nintendo game like all the music on the album.
The only way it could really be worth discussing is pointing out how it is different. Your example seems like basically modifying the software for the sole purpose of evading copyright. In the Baio case, it is very clear that he's not simply making superficial changes in order to claim fair use.
Source code changes that I am suggesting will allow the new BaioNix to functionally "work" just as Linux does, just like how Baio created a picture but it "works" as a homage to an earlier Miles Davis photo.
And I am not suggesting trivial code modifications for the sole purpose of evading copyright. The changes that BaioNix has produce a simpler naming convention that enables programmers to understand the code easier.
People are acting like Baio has a slam dunk case but had to settle because he doesn't have money to defend. In reality Maisel has a slam dunk case and Baio wisely settled and cut his losses.
Is this a just result? As with everything, that is up for debate. But if you want to change the law to allow Baio-works one needs to consider what else it affects.
Please, just use some common sense: BAIO WAS NOT PUBLISHING THE PHOTOGRAPH! He was publishing the MUSIC ; the photograph was just incidental, to show (at a glance) the relationship between the original music and the remixed Bloop music. Do you REALLY think that people bought the album because of the pixellated artwork? It had absolutely NO impact on the sales. I've bought many a record (and CD) in my lifetime, and I don't recall ever buying a single one because of the cover.
I am a hardcore supporter of the rights of the individual artists and musicians, and even I think Maisel was dead wrong.
The pixel art was definitely published by any useful meaning of the word publish, 200 copies of the liner version. Also, it was the background of the site, clearly used as promotion.
Let's say everyone accepts your argument that you can only violate artist rights if you gain a profit directly driven by the unauthorized use. It'd be perfectly fine to use a struggling unsigned band's best song to sell Volkswagens, since no one would buy a car because of music in an ad.
Of course, the unsigned band was just about to license their song to sell cat food and pay the rent, but now the cat food manufacturer doesn't want the same song that's in that damn Volkswagen commercial. Oops! Shoulda moved faster, indie band!
If you think that an artist or a musician should have no control over where their work is reproduced or published as long as it can be argued that it wasn't the main draw of any profit, you're not a hardcore supporter of the rights of individual artists and musicians.
I wasn't around for any negotiations Maisel's or his attorney had with Baio, but it does see like Maisel was a bit of a jerk about this. A jerk solidly in his rights, however.
Use some common sense? Baio absolutely published the photograph, which is why we are all having this discussion.
It doesn't matter why people buy something or if it had an impact on sales. A copyright holder retains the sole right to publish a work and its derivatives. That is the essence of how we protect works of art fixed in a tangible means of expression.
Then RedHat turns around and sues you for violating their copyright.
Once again, the programmer's work is sacred and we need Linus's permission, but an artist who creates cover art did trivial work and deserves no protection.