marbux wrote:
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.)
Hi Marbux,
Well I am still a practising IP attorney in Europe (in France, as it
happens, the copyright kingdom of the world ;-) ), and have been
following the debate on the German list (since I also speak and write
German), but have not intervened for various reasons linked to the
nature of the debate.
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.
Unfortunately, the EULA covers the way the operating system is used, but
does not, as far as I recall, specify about the use of screenshots that
include parts of the display of the operating system (graphical
elements, general "get up" and the like).
Moreover, Microsoft has unquestionably allowed people to do
screenshots that included portions of its software since back in the
DOS days.
This is true, but we do not know under what conditions this was made
possible - perhaps those who did so for commercial documentation
obtained authorization from Microsoft ? (I admit that there are probably
many circumstances where this was not the case, and MS probably did
nothing).
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.
This defence doesn't exist in French copyright law, and as I understand
it with the new EUCD (copyright directive) does not exist on a European
wide scale (although one would have to check each national state's own
implementation of the directive).
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.
Just because Microsoft may have turned a blind eye in the past doesn't
mean that from a European legal standpoint it doesn't have the right to
forbid people from including copyright protected elements into a product
that is distributed under a totally different licence agreement (e.g.
Creative Commons, FDL, PDL), and in particular, one that directly
authorises the end user to copy and redistribute.
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>.
I agree that this is probably a more relevant line of argument, although
I seem to recall that in the UK recent decisions have considered some
such elements to be copyrightable in certain software products. Whether
the same would apply to an operating system is a matter of debate.
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.
Agreed.
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.
Not in Europe though...
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>.
We have another disposition known as the "short citation", which enables
one to reproduce short excerpts or extracts of copyrighted works without
being liable. In such cases, however, it is usually required that the
source of the copyright be identified and its owner.
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.
This is to a certain extent true.
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.
The question to be raised IMHO is one of managing risk, even if that
risk is perceived to be insignificant or any claim unfounded : can the
organizers (obviously not Sun and Novell, since they seem to have struck
deals that have taken the edge out such threats of infringement suits)
of the OOo community take the risk ?
What are the consequences of such a risk in terms of potential image
damage to the project as a whole ?
Alex
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