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

But even constitutional rights can be waived, cf. Miranda. Your argument turns on whether the contract of adhesion is a valid waiver. The signal case finding state action in a court's enforcement of private contracts -- Shelley v. Kramer -- did not involve a knowing waiver by the aggrieved party.

John Noble

>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
>
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Received on Thu Apr 07 2005 - 02:15:11 GMT