Interesting hypothetical but mostly not relevant at all in this case. Details are lost making the analogy and when it comes to fair use, the details are often very important.
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.
It's not a slam dunk case, it's a 50/50 case. What we know for sure is that it was a dick move on the part of Maisel. Sort of like calling the cops on your neighbor because their dog barks a lot, even though you don't actually hear it when you're sleeping or working or doing anything else important.
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.