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

OK, I'll briefly rehearse the logical progression, with the caveat that this is painting with a very broad brush.

My argument was a bit more subtle than simply saying that a contract in contravention of fair use is unconstitutional. The constitution, after all, speaks not to individuals but to governments (as a rule, but cf. the Thirteenth Amendment, as interpreted by Jones v. Alfred Mayer Co. and Runyon v. McCrary), so obviously there has to be some governmental nexus with the matter. That nexus comes in courts' *enforcing* such contracts under color of state law (e.g. UCITA, UCC, etc.).

The Fifth and Fourteenth Amendments vindicate liberty interests against "undue" statutory interference at the federal and state levels (requiring, generally, a compelling state interest to justify restriction). Freedom of speech, in its full and wide-ranging usage, is such a liberty interest (so, of course, is freedom of contract, but that freedom is afforded to bilateral relationships, and a one-way contract of adhesion is something I doubt warrants equivalence to free speech sufficient to support a compelling interest; in fact, demanding assent to a contract of adhesion seems to me to raise questions about "compelled speech," another constitutional no-no).

The Copyright Act has the potential to limit free speech by preventing people from quoting others without the copyright holder's permission, which it may arbitrarily withhold; but avoids constitutional invalidation because, and only because, fair use offers a pressure-release valve. Take that away by allowing states to permit private actors unilaterally to shut that valve, and the Copyright Act itself may lose validity. Therefore, fair use trumps contracts of adhesion.

The narrower argument, of course, is that the Supremacy Clause invalidates the state laws to the extent they conflict with the Copyright Act. However, I don't think that Congress could, for example, repeal fair use without seriously compromising the constitutionality of the Copyright Act itself, so there's much more riding on the federal-state conflict than just the size of their respective sticks.

Vance

On Apr 4, 2005 5:00 PM, Christopher A. Mohr <chrismohr[_at_]verizon.net> wrote:
> Whoa. There's a big difference to saying that there's a conflict preemption
> argument that can be made about contracts that abridge fair use under the
> supremacy clause, and that a contract restricting fair use is somehow
> _unconstitutional_ under the first amendment or some other related
> constitutional doctrine.
>
> If you're suggesting that contracts that restrict fair use are
> unconstitutional under the second theory, what's your support for that
> proposition? (Disclaimer: My own views are quite strong that no such grounds
> for invalidation exists, but I'm willing to listen).
> -----Original Message-----
> From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Vance R. Koven
> Sent: Friday, March 25, 2005 9:16 PM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] Re: [CNI-(C)] Re: [CNI-(C)] Re: Use of Screen Shots in
> Writing Software Manuals
>
> Kevin's point is well taken. Since in the US fair use is considered
> *the* means whereby the Copyright Act acquits itself of contravening
> the First Amendment to the Constitution, for a court to enforce a
> private agreement that voids fair use, especially in the context of a
> contract of adhesion for which no separate consideration is given,
> would not only implicate the conflict between the contract and the
> Copyright Act (which does not expressly state that private agreements
> can abrogate fair use), but also the constitutional underpinnings of
> the Act itself. Courts don't like to go there.
>
> Contractual restrictions on *actions* like reverse-engineering are not
> so firmly established as constitutional rights that the same concerns
> arise, although they conceivably might in some contexts (symbolic
> speech, for example).
>
> Vance
>
> On Fri, 25 Mar 2005 09:15:19 -0500, Grierson, Kevin
> <kgrierson[_at_]wilsav.com> wrote:
> > To add to Vance's point, just because a license purports to do away with
> > fair use doesn't necessarily make it so. Although the CAFC has upheld
> > licenses that restrict certain uses normally considered fair use, such as
> > reverse engineering, other restrictions may not be enforceable. In
> > particular, restrictions that implicate free speech issues--such as
> > prohibiting use of the product to write a review of it, or prohibiting use
> > of the product in a benchmark test--would be viewed with suspicion by the
> > courts and likely be unenforceable.
> >
> > Kevin W. Grierson, Esq.
> > Registered Patent Attorney
> > Intellectual Property Group
> >
> > Willcox & Savage, P.C.
> > One Commercial Place, Ste. 1800
> > Norfolk, Virginia 23510
> >
> > kgrierson[_at_]wilsav.com
> > ph: 757/628-5603 fx: 757/628-5566
> > www.willcoxsavage.com
> >
> >
> > -----Original Message-----
> > From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> > [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Vance R. Koven
> > Sent: Friday, March 25, 2005 8:40 AM
> > To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> > Subject: [CNI-(C)] Re: [CNI-(C)] Re: Use of Screen Shots in Writing
> Software
> > Manuals
> >
> > 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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> --
> Vance R. Koven
> Boston, MA USA
> vrkoven[_at_]world.std.com
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-- 
Vance R. Koven
Boston, MA USA
vrkoven[_at_]world.std.com