Re: Permission to use screenshots of databases

[John Mitchell <john@xxxxxxxxxxxxxxxxxx>]

I am inclined to side with Georgia's thoughts on this. In my  
judgment, a screenshot to illustrate a tutorial has heavy fair use  
markings. Among dangers in asking permission are:

First, it increases friction. Contacting the copyright owner is a  
time-consuming venture that may have more than inconsequential cost.  
That friction alone might tend to discourage fair use that Congress  
and the First Amendment encourage.

Second, if the request is rejected, the risk of going forward under a  
claim of fair use is increased, given that the copyright holder will  
more easily discover it.

Third, the copyright owner is given leverage to "bargain" for  
positive treatment that tends to undermine the academic integrity of  
the tutorial. Copyright owners should not be in placed a position to  
use the risk of copyright litigation influence "criticism and  
comment" to protect the reputation of their works.

Fourth, it is contrary to the purpose for the Copyright Clause to  
permit the copyright owner to suppress or control what others have to  
say about the work by permitting only positive comments to be  
accompanied by screen shots. That's like forcing a book reviewer to  
refrain from quoting a line or two unless it is in support of a  
positive book review.

Fifth, as the Supreme Court noted in the Fogerty case, respecting the  
limits on the copyright grant is just as important as respecting the  
reach of the copyright grant.

Sixth, the fair use provision may have derived from the common law  
need to protect the purpose of the Copyright Law and accommodate the  
demands of the First Amendment, but once codified in Section 107, it  
has now been placed in a position superior to that of the copyright  
grant. Every one of the exclusive rights of the copyright owner set  
forth in Section 106 are made "subject to" the superior provisions in  
Sections 107-122. The argument that "fair use is merely a defense to  
infringement" is repeated by some copyright owners ad nauseam in an  
apparent effort to avoid the plain reading of the Copyright Act. To  
the contrary, every copyright is subject to the right or anyone to  
make fair use.

Good luck weighing the risks, and better luck still in determining  
finding the institutional will to step up to a higher level of risk  
tolerance necessary to protect the value of fair use.

John
____________
John T. Mitchell
Interaction Law
1629 K Street, NW, Suite 300
Washington, DC 20006
http://interactionlaw.com
1-202-415-9213 (voice)
1-202-318-9169 (fax)


On Jul 30, 2007, at 11:57 AM, Jack Boeve wrote:

> [Submitted on behalf of Georgia Harper]
>
> Short quick answer? There are few "hard and fast rules" when it  
> comes to
> fair use. As to whether what you describe below is a fair use, I think
> it probably is, but, [longish explanation to follow -- stop here if  
> you
> want...]
>
> ... as with every fair use, exercising fair use usually requires a
> degree of risk assessment ("let's see, how good of a case would I have
> for this particular use in this particular circumstance given this
> particular information owned by this particular copyright owner...").
> The reason that the identify of the copyright owner is important  
> has to
> do with the litigiousness of the owner. Some owners are especially
> aggressive about enforcing their rights and will take on any use, even
> uses that seem incredibly core fair use to most people (Mattel and
> Barbie come to mind).
>
> So first think of your question as "do I have a good fair use argument
> for using a screen shot from [name of copyright owner]'s database,
> ["Title"] in a tutorial that will be used for [nonprofit educational
> uses], but available freely on the Web?" (I'm guessing about the
> nonprofit educational use.)
>
> Then, someone might offer their opinion about whether that's a
> relatively safe bet or a risky proposition. Maybe others will agree or
> disagree. Then you decide how much risk you're comfortable with, and
> make your decision. Getting permission is always a safe route to  
> take if
> you are intolerant of risk, but it's a good idea to know what kind of
> risk you are facing, a big risk or a small risk.
>
> In response to the reframed "what kind of a case do I have"  
> question, I
> would say that this is low risk, in my opinion. You're taking only a
> small amount, the amount that you need to make your point and no more;
> you're using it for nonprofit educational purposes (I assume); you're
> not using it for the same purpose that it is designed for (in other
> words, you're making a modestly transformative use of it); the work is
> creative, but that factor is often not all that important in the
> analysis, especially when the use supports Copyrights public policy
> purposes; there's not a ready market for permission for this kind of
> thing.
>
> You may get other opinions. In the end you have to decide among them
> which best seems to fit what you know about fair use, and remember,  
> it's
> not going to be clear so you if you want to rely on fair use rather  
> than
> get permission, you have to be comfortable with the ambiguity of not
> knowing for sure. That's affected to some degree, maybe made  
> easier, by
> the fact that you're in a big boat with a lot of neat, wonderful  
> people.
>
> Good luck!
>
> G
>
> Georgia Harper
> Scholarly Communications Advisor
> University of Texas at Austin Libraries
> 512.495.4653; 512.971.4325 (c)