Forwarded in case some members of the OOoAuthors list are not also members
of the Docs list. -- Jean
-------- Original Message --------
Subject: Re: [documentation-dev] Question about the right for using
Screenshots of OOo on Microsoft Windows
Date: Wed, 8 Nov 2006 12:23:56 -0800
From: marbux <[EMAIL PROTECTED]>
Sigrid, I can not speak to German law, but I suspect it is not
different in relative substance from that in the U.S. Under U.S. law,
the Microsoft conditions are downright silly and are unenforceable. (I
stress, however, that I have retired from the practice of law and am
no longer allowed to give legal advice. So this is a personal opinion,
not legal advice. You'll need to retain a lawyer if you want advice
you can rely on.)
It is immaterial that Microsoft asserts such a right now on a web
site. The license covering the use of its software is the EULA, not
what it says on its web site. Statements on its web site can expand
people's rights under the EULA, but it can not reduce those rights.
Moreover, Microsoft has unquestionably allowed people to do
screenshots that included portions of its software since back in the
DOS days. You don't get to sit on your rights, knowing that people are
infringing them, for a long period of time. You have to file a lawsuit
to enforce your rights. "Sleeping on your rights" raises the defense
of laches, and the defense of estoppel by acquiescence. Inaction is
enough.
Were one to carry Microsoft's argument to its reductio ad absurdum,
then no one but the licensee could view a monitor that was displaying
Microsoft software. A copy of the screen is created in the body's
nervous system. Remembering what the screen looked like would also be
a violation of Microsoft's rights, since that would summon a new copy
from a stored memory. What is even worse, that copy might be imperfect
and thus constitute a prohibited modification of Microsoft's
"copyrighted" image.
What makes it all pretty ridiculous is that the EULA allows "use" and
making a screengrab is a "use." Microsoft knows that every
screengrabber that runs on Windows makes copies of its dialogs and
that none of them automatically superimpose the copyright notice
Microsoft claims to require. But under copyright law, the copying
happens first when the screengrab is made. Under Microsoft's logic,
that screengrab would itself be unlawful because it does not include
the Microsoft copyright notice. So I would argue that Microsoft waived
its rights when the screen grab was first created. If Microsoft wants
a copyright notice displayed in its dialog portions that are displayed
in a screengrab, it is perfectly able to code its software so that the
copyright notices are visible in the portions that will show in a
screen grab.
A second line of inquiry would be whether those screen portions are
copyrightable to begin with. Apple Computers didn't get very far with
its argument that Microsoft had copied the MacIntosh operating system
"look and feel." At least in the U.S., very simple images are not
copyrightable, e.g., icons and fonts. Sliders, icons, and OK bars are
also not copyrightable because they have no **originality.** See e.g.,
17 U.S.C. 102(a) ("[c]opyright protection subsists, in accordance with
this title, in ***original*** works of authorship[.]"
<http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000102----000-.html>.
E.g., you can not copy the works of Shakespeare and then claim
copyright on all copies made from your copy. Just so, you can't
imitate others' icons, sliders, and title bars and then claim
originality. And as to the words in the title bar, that is just
factual information, and facts can not be copyrighted.
Every operating system's GUI windows manager provides them, as do a
multitude of separate applications that used them before the first
version of Windows was created. . E.g., I've got them in my copy of
WordPerfect 5.1 for DOS, and I even had them in my CP/M version of
WordStar. What is probably dispositive in the U.S. is that prior to
March 1, 1989, any release of copyrightable material without a claim
of copyright automatically waived copyright. And it is important here
that what is copyrighted is the binaries themselves, not the pretty
dialogs the software creates on the screen. Icons, sliders, and
titlebars were in broad use before that date without claim of
copyright, and it is far too late for Microsoft to try to put that
horse back in the barn, even were icons, sliders, and titlebars
original to Microsoft.
Yet a third inquiry is whether, even if they were copyrightable, their
use constitutes "fair use." If you run icons, sliders, and titlebars
through the four-part fair use analysis, I think you'll agree that
their use in screengrabs would be fair use even were they
copyrightable. See e.g.,
<http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html>.
The analysis would differ to the extent that trademarked logos were
involved. But even with trademarks (and especially so) sleeping on
your rights constitutes waiver. You can't just sit there and watch the
world use your logo for years, then try to jump on someone because
they did so. You have to enforce your mark when you learn of any
infringement. A demand letter might be enough if it succeeds in
halting the infringement. But if it doesn't, you have to file suit.
I can not tell you that there never has been a Microsoft trademark or
copyright lawsuit over screengrabs of its icons, slider bars, and
title bars. But it sounds really unlikely to me. Even if it did file
one, the Borg would be laughed out of court.
Lawyers often (and Microsoft's are among the worst in this regard)
often make expansive claims in licensing documents just to avoid
research or to avoid the necessity of being much more specific.
License terms are often overreaching and unenforceable. And if you ask
a Microsoft lawyer whether something is permitted under the license,
they will very likely tell you that it is not or that only if you do
such and such. The result is the lawyer can get away without doing the
research necessary to answer the question and can avoid saying
something that might later come back to haunt the client.
Finally, as a practical matter this just is not something Microsoft
would sue over even if it had the right to do so. There are a lot of
folks who develop software for the Windows platform who would not like
being told they have to stick a Microsoft copyright notice on every
screengrab of their software. These days, Microsoft isn't into giving
Windows developers more incentives to switch operating systems. It's
been losing them in droves to Linux.
So I see this as more a comedic break than anything to worry about.
My 2 cents, but check with a licensed attorney.
Marbux
