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

Fair comment, although a "Miranda warning" is the prudential rule to avoid the problem of accidental or coerced waivers, and thus reinforces the principle that waiver should not be lightly implied. It's true that I don't think a contract of adhesion reflects knowing consent. That it is interpreted as consent at all is a legal fiction that has been justified on the grounds of economic efficiency, for example by Judges Posner and Easterbrook; but I don't think this issue has been squarely presented in a copyright context in which a strong First Amendment claim has figured and the specific prohibitions in the "agreement" conflicted with the speech claim.

Vance

On Apr 6, 2005 6:15 PM, John <jfnbl[_at_]earthlink.com> wrote:
>
> 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.
> > > >
> > > >
> #############################################################
> > > > This message is sent to you because you are subscribed to
> > > > the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
> > > > To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org>
> > > > To switch to the DIGEST mode, E-mail to
> <CNI-COPYRIGHT-digest[_at_]cni.org>
> > > > To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org>
> > > > To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org>
> > > > Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>
> > > >
> > > > Visit the CNI-COPYRIGHT e-mail list archive at
> > > <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>.
> > > >
> > >
> > > --
> > > Vance R. Koven
> > > Boston, MA USA
> > > vrkoven[_at_]world.std.com
> > >
> > >
> #############################################################
> > > This message is sent to you because you are subscribed to
> > > the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
> > > To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org>
> > > To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org>
> > > To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org>
> > > To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org>
> > > Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>
> > >
> > > Visit the CNI-COPYRIGHT e-mail list archive at
> > > <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>.
> > >
> > > Confidential & Privileged
> > >
> > > This message is intended only for the use of the recipient
> > > to whom it is addressed and may contain information that
> > > is privileged, confidential and exempt from disclosure
> > > under applicable law. If the reader of this message is
> > > not the intended recipient or the employee or agent
> > > responsible for delivering the message to the intended
> > > recipient, you are notified that any dissemination,
> > > distribution, or copying of this communication is strictly
> > > prohibited. If you have received this communication in
> > > error, please notify us immediately at (757) 628-5500,
> > > delete this communication from any computer or network
> > > system, and destroy all copies. Thank you.
> > >
> > > Willcox & Savage P.C.
> > >
> > >
> >
> > --
> > Vance R. Koven
> > Boston, MA USA
> > vrkoven[_at_]world.std.com
> >
> >
> #############################################################
> > This message is sent to you because you are subscribed to
> > the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
> > To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org>
> > To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org>
> > To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org>
> > To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org>
> > Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>
> >
> > Visit the CNI-COPYRIGHT e-mail list archive at
> > <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>.
> >
> >
>
>
> --
> Vance R. Koven
> Boston, MA USA
> vrkoven[_at_]world.std.com
>
> #############################################################
> This message is sent to you because you are subscribed to
> the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
> To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org>
> To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org>
> To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org>
> To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org>
> Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>
>
> Visit the CNI-COPYRIGHT e-mail list archive at
> <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>.
>
>

-- 
Vance R. Koven
Boston, MA USA
vrkoven[_at_]world.std.com