This is a very timely line of discussion. I have long advocated the theory
that certain rights outside of the copyright cannot be brought within the
control of the copyright owner by means of private contracts. That is
because such terms unlawfully enlarge the scope of the copyright beyond the
limits set by Congress. (See
http://interactionlaw.com/documentos/MGM_v_Grokster_VSDA_Amicus.pdf for
discussion in one of the Grokster briefs, at page 24.)
In addition to the antitrust and copyright misuse issues, there are serious public policy aspects. In purpose and effect, the copyright owner who who offers to license any of its exclusive rights in exchange for the waiver of fair use rights (or other rights reserved to the public, such as the right to perform the work publicly, or the right to transfer possession of a lawfully made copy without the consent of the copyright owner) thumbs its nose at Congress. It's like the classic response to the genie who says "You can have three wishes," where the third wish is: "Give me three more wishes."
Fortunately, courts are beginning to see the light. In Softman Prods. v. Adobe, 171 F. Supp. 2d 1075 (C.D. Cal. 2001) the court quickly saw that a private agreement to prevent the owner of a lawfully made copy from selling the copy unbundled from Adobe's preferred 3-product package was void as against public policy.
This makes perfect sense. The Miranda rights comparison is inappropriate because those rights are personal, and require that they be waived in order that they not be diminished. (For example, my freedom NOT to speak is of little value if I cannot waive it, for it means I lack freedom of speech with respect to the unwaivable freedom not to speak.)
The rights reserved to the public with respect to copyrights are for the public benefit. If, for example, I waive my right to redistribute the lawfully made copy that I own, I would be denying downstream recipients (by resale, gift, lending, rental, bequest) of ownership or possession of my copy, thereby impairing the objective of copyright law to encourage widespread dissemination. If copyright owners could simply nullify Section 109 by private agreement, the they would in effect privately rewrite the law.
Consider a better parallel: Laws prohibiting discrimination in the workplace, or requiring the payment of a minimum wage. Advocates of a waiver right would maintain that employers could simply refuse to hire people who did not waive their right to be paid a minimum wage, to have a safe work environment, or be free from discrimination. For some people, prospective employees, it might be a very inviting proposition: Perhaps I am a member of a privileged group -- I do not fear discrimination on the basis of my sex, race or other factors, and gladly waive my right to be free from discrimination because I am pretty sure I will not be the victim of it. Perhaps I am homeless and desperate for work, and willing to waive my right to a minimum wage in exchange for the privilege of getting a job. Or perhaps the financial straits I am in prompt me to waive my right to a safe work environment in exchange for an increase in my wages. On an individual-by-individual basis, some waivers may be attractive, but as a society, we have deemed them of such important public value that they cannot be waived.
If there were no copyrights, it might be fine for an author to sell me a book only on condition that I let no one else read it. But the author who has accepted the exclusive rights of authors granted by law must accept the limitations imposed upon those rights. Indeed, Section 106 specifically makes the rights "subject to" the limitations, such that it makes no sense to grant a license to the right on condition that the limitation be waived. As structured by Congress, the only way a waiver of fair use rights (Section 107), first sale doctrine rights (Section 109), or any of the rights specified in Sections 107-122 can be waived is if the copyright owner first waives the copyright, and places the work in the public domain.
Hmmm. I like that!
John
John T. Mitchell
http://interactionlaw.com
1-202-415-9213
On 4/7/05 5:00 PM, "Vance R. Koven" <vrkoven[_at_]gmail.com> wrote:
> 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:
>> preemption
>> grounds
>>>> 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
>>>> 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
>>>>>> any comments, or cites to cases addressing this specific issue. >> Thanks
>>>>>> much, Larry. >>>>> >>>>> There was some discussion a year or so ago on this list. Someone
>>>>> 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
>>>>> 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
>>>>> impossible to make screen shots without gathering images of trade
>>>>> >>>>> I got nervous since I had been using some materials for several years
>>>>> 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
>>>>> of the image). I had even drawn over some of the images with red >> pixels
>>>>> highlight crucial parts of the interface -- gasp! -- another >> non-non. >>>>> >>>>> Okay, I figured... I generally tell my students to respect the laws
>>>>> 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
>>>>> of action and preaching, I thought "I will write to company Y,
>>>>> 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
>>>>> said I "understood" what I was signing. This would have been false. I
>>>>> THAT was a bad idea. I wasn't even sure if I, as a faculty member had
>>>>> 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
>>>>> education into contract law, torts and "consequential damages." After
>>>>> 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
>>>>> 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/>. >> >> >Received on Wed Apr 13 2005 - 00:55:02 GMT
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