Re: Re: Re: Re: Re: [CNI- (C)] Re: Use of Screen Shots in Writing Software Manuals

I think that nails the issue -- whether acceptance of a contract of adhesion amounts to knowing consent. I know that I NEVER read shrink-wrap or click-wrap licenses, so whatever I give up is NEVER with knowing consent. Consent in this context IS a legal fiction, but the seemingly sensible response is that you can't claim that you didn't consent based on a willing refusal to read the contract. The fiction is created when I click "Accept" not when they write the contract.

John Noble

>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.
>> > > >
>> > > >
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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 Sat Apr 09 2005 - 03:20:51 GMT