Re: Use of Screen Shots in Writing Software Manuals

At 12:40 PM 3/18/2005 -0500, you wrote:
>Suppose a person wants to write a (commercial) book or training manual
>instructing others on how to use a third party's copyrighted computer
>software. May the person make use of "screen shots," produced through use
>of the software, as an instructional aid in such a book without infringing
>copyrights in the software? Would such use be fair use? I'd appreciate
>any comments, or cites to cases addressing this specific issue. Thanks so
>much, Larry.

There was some discussion a year or so ago on this list. Someone provided a link to Microsoft's web site in which they discuss their terms of licensure which allow the user of Microsoft products to use screen shots under certain circumstances. Note, for example that hitting "print screen" in Windows often captures pictures of the corporate logos of potentially many corporations whose products are in use at a given point in time. (Does this make Microsoft a contributor to any infringement, since it is almost impossible to make screen shots without gathering images of trade dress?)

I got nervous since I had been using some materials for several years that I had put together to teach college students how to use package X from company Y*. I thought it prudent to check out company Y's policy on unauthorized teaching about their product to see just how egregious my unlicensed act of teaching was -- fair use is irrelevant when copyright (or its lack thereof) has been circumvented by licensure (all shrink-wrapped and tiny and incomprehensible).

Well, indeed, my use was outside the bounds of decency (alas!). I had cropped some of the screen shots (to focus on pedagogically relevant parts of the image). I had even drawn over some of the images with red pixels to highlight crucial parts of the interface -- gasp! -- another non-non.

Okay, I figured... I generally tell my students to respect the laws (even the silly ones) and not to take fair use analysis into their own hands since their corporate attorney (once they are employed) may have a different opinion of fair use than they. So in an attempt to effect merger of action and preaching, I thought "I will write to company Y, consistent with their wishes, and see whether they are understanding of my pedagogical interests in helping students to use their package" (there is an open source alternative that is starting to look very appealing).

They reviewed my uses of screen shots and sent me a document to sign and fax back to them. Unfortunately, the document I was to sign was long and used words like "tort" and "indirect", "incidental," and "special, consequential, or other" and "negligence or strict liability" and "equitable grounds."

I don't generally mind signing legal gobbledygook. I, like many folks, just sort of assume that somewhere in the legal system, a wise person will realize that an incomprehensible contract should not be absurdly over-enforced. However, in this case, I was asked to sign a statement that said I "understood" what I was signing. This would have been false. I knew THAT was a bad idea. I wasn't even sure if I, as a faculty member had the right to sign such a contract -- perhaps I had to get my University attorney (if there is such a person) involved.

Instead I wrote to company Y and explained what it was that I didn't understand, paraphrasing my own impression of what the contract said. A very nice chief corporate counsel (company Y sells a billion dollars a year of software, so I figure her time was worth about a zillion dollars an hour) took the time to email me back and forth through a very enlightening education into contract law, torts and "consequential damages." After all of this I did indeed get a one-year license to use my screen shots for teaching about the use of product X. I also include a short session on licensing screen shots now. I follow that up with the story of how I once got rid of the dead walrus in my front yard.

Oops, I just realized I need to renew my one-year license. I hope they haven't changed the terms of the contract. That GNU stuff is looking better every year.

David Dailey

*-- It's only about a one-week part of a course really devoted to other topics -- but the nice thing about using product X is it allows students to create their own web content, hence avoiding students' apparently innate disposition to "borrow" web content from other places. In other words I include it only to help steer the students clear of copyright infringements. How ironic. Received on Thu Mar 24 2005 - 03:05:00 GMT