Re: Re: Re: Use of Screen Shots in Writing Software Manuals

I agree with Vance that it's counsel's role to negotiate permissions. I'm going to put three kids through college on the money I make from clients who came looking for (expensive) help to solve a problem that they created by not asking for (inexpensive) help to avoid the problem in the first place.

As for avoiding the need to get permission by getting a fair use opinion, it's my experience -- indeed it's my practice -- that unless it's utterly obvious, lawyers almost always tell clients to ask for permission because a) you can usually get it if you ask nicely; b) not asking irritates some people, and creates a problem that could be avoided; and c) most lawyers take a belt-and-suspenders approach to protecting their clients. You only have to make the tough calls -- is it fair use, how much can you afford to spend to prove it, and do you really need to use it -- after you ask and get 'no' for an answer.

SRU may enjoy 11th Amendment protection, but the professor who copied or directed the copying of a protected work, or gets royalties from sales, doesn't get an 11th Amendment defense by virtue of his/her employment by the state. Whether the university is willing to defend and indemnify is a different question, and you're not going to get the answer in writing pre-publication because it would only encourage the potential plaintiff looking for a deep pocket.

Push comes to shove, I think screen shots are fair use. In fact, unless it's the unadulterated splash-screen when you launch the program, the screen image is an authorized derivative created by the licensed user. It's like an MS Word document with content and formatting, borders and columns, etc., created by the user. Unless the license prohibits reproduction and distribution of the obviously authorized derivative, there shouldn't be a problem. And if it does, there's a pretty strong copyright misuse defense, it seems to me. I'd love to have a client charged with "unauthorized teaching." Heh.

John

>I confess to being puzzled and disturbed by this episode. First of
>all, I would expect that SRU would have its own legal department, and
>if not, the state university system surely does. It ought to be
>counsel's role, not the individual teacher's, to negotiate
>permissions.
>
>Secondly, and this is also a proper role for house counsel, teachers
>should be informed about what fair use is and should get advice on
>whether a proposed use is likely to be a fair use. If so, then there
>would be no need to ask for permission, no need to generate agida over
>whether you comply with every jot and tittle of company Y's
>permissions policy (which probably is not geared toward educational
>uses and in any case will be excessively generous in awarding itself
>rights and privileges).
>
>Thirdly, since SRU is a state institution, you may have the benefit of
>the Eleventh Amendment to avoid any liability for infringement, even
>if there were any. Again, advice of counsel is key.
>
>Students' tuition, the "administrative" chunk of all those grants, and
>taxpayers' money are all going to support the legal department. Might
>as well make some use of it. Plus, getting advice from counsel is a
>great way to ensure that the university will pick up the tab if and
>when company Y foolishly thinks it should sue.
>
>Vance
>
>
>On Wed, 23 Mar 2005 17:05:00 -0500, David Dailey <david.dailey[_at_]sru.edu> wrote:
>> 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.
>>
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>
>
>--
>Vance R. Koven
>Boston, MA USA
>vrkoven[_at_]world.std.com
>
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Received on Sat Mar 26 2005 - 07:15:31 GMT