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Legal Impediments to Using F/OSS Screenshots? 75

Posted by Cliff from the publisher's-headaches dept.
Software Illustrated asks: "When publishing books on how to use Linux desktop software, the legal/IP review process to make sure we aren't infringing on the property rights of 3rd party sources should be easier than for books about proprietary/closed source software, right? Microsoft makes it easy as long as you comply with their guideline. I didn't think it would be necessary to get permission to publish a screenshot of, for instance, the GNOME gconf-editor. But that is just what our legal/IP review team is pursuing. Is this necessary?"
"If not, then how do you explain to a by-the-book contract administrator that the rules are different with GNOME? I find myself dealing with exactly this problem right now, resulting in a book ready for publication being put on hold. Is the solution here to get GNOME (and KDE for that matter) to publish their own permission guidelines ala Microsoft? Seems counterintuitive to the spirit of the F/OSS movement. But doing this sure would grease the skids for publishers. Has anyone else dealt with this issue?"
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Legal Impediments to Using F/OSS Screenshots? More

Legal Impediments to Using F/OSS Screenshots?

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  • Well.. (Score:5, Insightful)

    by Momoru ( 837801 ) on Friday June 17, 2005 @03:08PM (#12845809) Homepage Journal
    I'd say just do it...who is going to sue you exactly, and with what money and to what end?
  • The Microsoft links returns a 404 error.

  • Why would you ignore your legal advice? (Score:3, Insightful)

    by DjReagan ( 143826 ) on Friday June 17, 2005 @03:15PM (#12845886)
    So let me get this right.. your lawyers are advising you to do something, and you come to *slashdot* for a second opinion?

  • Wikimedia Commons (Score:4, Interesting)

    by JimDabell ( 42870 ) on Friday June 17, 2005 @03:16PM (#12845892) Homepage

    There's some informative discussion at the Wikimedia Commons [wikimedia.org].

  • You are representing a product in a review correct?

    For reporting purposes you can show a lot of things. The worst you will likely get is a cease and desist letter, but from OSS, I would highly doubt it.

    Fair use covers reporting if I remember correctly. A screenshot is not even in any way related to the actual product other than as a representation, much less than say a picture of a painting or a snippet of an MP3.

    Seriously, just post screenshots. If you get a cease and desist, just take them down. Micro

    • CORRECTION (Score:3, Interesting)

      by ZosX ( 517789 )
      Sorry, I read your question and suddenly started thinking about reviews. A book about computer software is an educational tool. Also covered under fair use.

      You can't teach someone something without showing it to them right? Make your screenshots black and white too (it'll be cheaper anyways), unless of course you are writing a book about the gimp, but I digress. You should be ok to write a book with screenshots, free speech is a wonderful thing.

      • Re:CORRECTION (Score:3, Informative)

        by bcrowell ( 177657 )
        A book about computer software is an educational tool. Also covered under fair use.
        No way. Check out this [wikipedia.org] info on how fair use works. If it's a for-profit book, and they're selling thousands of copies, then it's very shaky to claim fair use. Whether it's educational is just one of the many criteria that have to be weighed together to decide if it falls under fair use. A typical textbook publisher never uses anything under fair use, because it costs too much money to print the book to risk it all on the po

        • Re:CORRECTION (Score:3, Interesting)

          by dasunt ( 249686 )

          If a typical textbook author never used anything undr 'Fair Use', how would you explain the existance of textbooks about Modern Art (complete with pictures), Architecture (again, more pictures), etc...

          • Read the fine print. For reproductions of paintings it will usually say "Courtesy of ..., used by permission" in the photo credits section, or something similar. That means that the publisher obtained permission from the copyright holder to include reproductions of the works in the book. It does NOT mean that because there are some books that include many reproductions of works of art that ANY book can do this under some misunderstanding of "fair use". Quite the contrary, it means that the publisher had
    • The worst you will likely get is a cease and desist letter, but from OSS, I would highly doubt it.

      If you publish a book, and print about 100000 copies, a cease and desist notice can be pretty expensive.
    • A screenshot is as much a work of art as a passport photo. Put your own copyright notice on it; register it even. It's yours.

      Of course the real discussion here should be that copyright is completely broken.
      • A screenshot is as much a work of art as a passport photo. Put your own copyright notice on it; register it even. It's yours. .... copyright is completely broken.

        So is your head. I'm familiar with the whole Dada/post-modern argument that art is whatever someone declares to be art and the philosopher in me finds it intriguing. But from any real-world practical standpoint, saying that screenshots are inherently "art" is laughable. Copyright law doesn't regard it as such (it's a derivative work, so you

  • No restrictions on the use of the output of GPL... (Score:5, Interesting)

    by NZheretic ( 23872 ) on Friday June 17, 2005 @03:23PM (#12846005) Homepage Journal
    There are no restriction on use the output of GPL and LGPL licensed programs, unless the the program outputs copies of GPL/LGPL source code:
    Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.
    • Your quote of the GPL only serves to emphasize the dilemma. By declaring the output of GPL programs outside the scope of the GPL, means the copyright holders can choose to claim any restrictions they want on the program output.

      Sounds like every OSS maintainer indeed may need to have some such declaration.

      That said, it seems like screenshots and the like should fall under the category of fair use, not needing explicit permissions.

      Anm
      • Not at all. It says the output of the program is not covered by the license- in other words normal copyright law applies. Normal copyright does not give the copyright to the creator of the software. If it did, MS would own every program written via Visual Studio and every book written via Word.

      • Re:Not covered != No Restrictions (Score:4, Interesting)

        by benjamindees ( 441808 ) on Friday June 17, 2005 @05:36PM (#12847282) Homepage
        It's outside the scope of the GPL because it's outside the scope of copyright. No license can impose restrictions on the output of running a program.

        If they could, all binaries would be owned by the people who wrote the compilers. Copyright is not viral in this sense. It's meant to protect your work from duplication, not the works of others or the trivialities of how people use your work.
        • No license can impose restrictions on the output of running a program.

          Not so - the publisher of a software program can put whatever restrictions they want in the EULA. You are correct in stating that copyright does not cover the output (although arguably, *you* own copyright of the output, as you produced it (or caused it to be produced)), but that's not the same thing as a licence not applying.

          I could easily add a clause in a licence that states that I own all output of the software and that you're not
          • An End User License agreement is a Contract to use a Copyrighted work.
            The GPL is NOT a contract. The GPL license is a Grant to the reciever of rights greater than what is provided to the reciever by copyright law.

            A EULA can take way your rights under copyright law.
            The GPL, by its nature as a grant, cannot do so.

    • The screen shots of most GNOME programs would contain portions of the source code: icons, UI widget graphics, etc.

      I'm not saying that it would be a copyright problem; I'm just saying that the "output" clause of the GPL does not cause screenshots to be exempted.

    • Wrong. The program is outputting copyrighted material (images from the GTK theme, for instance). The themes for GNOME have varying copyrights. It would definitely be a good idea (not to mention polite) to get permission before putting copyrighted material in a book. By your argument, copying a Windows binary with cp would remove Microsoft's copyright on it, which is clearly not the case.
      • Because of the implementation of GNOME/KDE themes and X11R6 font systems, both Themes and fonts are considered seperate from the program.

        Like a browser is a viewer for HTML'ed content, KDE/GTK+/GNOME applications are also viewers for the Themes. .The majority of KDE and GNOME themes [gnome.org] are GPL'ed. I do not know of any non-GPL'ed GNOME Themes for a start. All the themes on Fedora are GPL'ed.

        The GPL applies to the source and binaries of the Themes. However, in the same way that you can run GPL'ed applicatio

        • Themes are not separate. The program always outputs them (sometimes using shared libraries). A shared library is considered part of the program: for instance, you cannot legally link a non-GPL program to a GPL library. Also, if the themes are indeed GPL, you cannot legally include them in a book without obtaining separate permissions from the copyright holder (unless the book is also licensed as GPL).
          • A) The Program OUTPUTS images generated by the themes to the Clients X Server. This is important. The GPL license does not restrict what you can do with the output of a GPL program. You can capture the output from the X Server with a screen shot, put it on the web, or reproduce it in printed media. Reread the GPL license.

            B1) The GPL comes under effect only when you distribute the result outside of your organization. You are entirely free to use the GPL source code as you wish as long as you do not distrib

            • The output clause is totally irrelevant because a) the output clause only applies to works under the GPL. The copyright violated by a screenshot would be the copyright of the theme creator, not the person who wrote the theme engine. So the license of the engine or, indeed, of Gtk itself is irrelevent. Whats important is the license of the theme, and of the specific piece of software you're screenshotting. The theme should have an explicit license, most of them are LGPL or some Creative Commons, and therefor
              • arkanes, A challenge for you:
                1) What GTK+,GNOME or KDE themes are NOT licensed either as GPL or a more liberal open license that allows screen shots?
                2) What Linux distributions package ship a copy of that theme that matches #1?

                Again:
                A) The Program OUTPUTS images generated by the themes to the Clients X Server. This is important. The GPL license does not restrict what you can do with the output of a GPL program. You can capture the output from the X Server with a screen shot, put it on the web, or repr

                • 1) Just because I don't know that there are any doesn't mean that they don't exist. But it's the themes copyright thats important, not Gtks. The GPL, by the way, has nothing whatsoever to say about screenshots - a GPL license on a theme would allow redistribution of the theme elements, which would cover screenshots, but you can absolutely make a case that GPL licensed source code does not extend to the copyrightable elements of an interface.

                  2) Irrelevant.

                  A) The GPLs output clause does NOT remove copyrigh

                  • arkanes stated "1) Just because I don't know that there are any doesn't mean that they don't exist."
                    arkanes, don't look behind you, there is a pack of unicorns stampeding in your direction ( Just because I don't know that there are any doesn't mean that they don't exist). In reality there is little risk from being run down by unicorns, thats what the (1)+(2) challenge was about. If the prepackaged themes [gnome.org] that come with the Linux distributions are all freely licensed then, like the stampeding unicorns, there
                    • You obviously don't know what the hell you're talking about. The license of a theme is of obvious importance to someone looking to redistribute screenshots, and just because all the themes you know about are under the GPL doesn't mean that they shouldn't ensure that the themes they're actually screenshotting are also under the GPL or a similiar unrestrictive license (there are actually a number of KDE and Windows themes under CC licenses, for example).

                      Get the hell off the output clause. It doesn't mean wha

                    • arkanes: "The license of a theme is of obvious importance to someone looking to redistribute screenshots"

                      Then excuse the following language: Arkanes you are a gutless scaremonger.

                      1) Where are the non-freely licensed theme packages for GTK+,GNOME and KDE? IF you do not use any such theme package, and only used freely licensed ones the then it does NOT limit ability to publish screenshots.

                      2) What Linux Distribution ships any Theme package that *prevents* you publishing screenshots? There is no freely

  • I'd be more interested to hear what your legal staff says about it than what /.ers think.

    That would be news.

    Personally I think a) it would be fair use unless some other contract you have formed is more restrictive than copyright and b) the GPL doesn't have anything to do with it. The GPL is only relevant in the copying of software code and executable binaries not side effects unless those side effects are program code or executable binaries.

    In any event the risk is low. Perhaps your legal staff is proba
    • the GPL doesn't have anything to do with it. The GPL is only relevant in the copying of software code and executable binaries not side effects unless those side effects are program code or executable binaries.

      BZZT, wrong. The GPL governs acceptable use of copyrighted material. As others have pointed out, it specifically includes (and makes no restrictions on) "use" when that use is governed under copyright, and specifically does not include use that is outside the scope of copyright.

      So, unless you're t
      • So, unless you're talking about trademark, there aren't any copyright issues in reproducing the output of GPLed programs.

        Exactly. The GPL has absolutely no bearing on the output of the program, and introduces exactly zero issues.

        Just because Apple uses GCC, that doesn't make OS X free, does it? That doesn't mean you get to copy their graphics for your book, does it? No, of course not, on both counts.
      • No, the GPL "governs" redistribution and copying not "acceptable use." You can use the software for whatever you want, since the GPL makes no limitations, not because it makes specific allowances. The GPL grants you a substantial ability to copy and redistribute the software as long as you are willing to live with its requirements regarding releasing your own changes.
        • You're right. That was a poorly chosen phrase on my part. I meant to express that it covered "All use that is governed by copyright" without listing them all, including distribution of derivative works.

  • Wow, the lawyers are getting pretty creative. (Score:3, Interesting)

    by hey! ( 33014 ) on Friday June 17, 2005 @03:45PM (#12846266) Homepage Journal
    I mean, it is their job to look for things that might get you into trouble, but this is taking things to the level of absurdity. It makes wearing a tinfoil hat look like locking your front door when you go out for the day.

    Let's leave aside the improbability that who gives his source code to the world is very likely to come after you for taking a picture of the results. A lawyer, after all, is not paid to trust in human nature. But we still live in a country that has some remnant of first ammendman rights; people have been quoting copyrihted works for critical, educational and scholarly works forever. Unless the license restricts reviewing the work, as some commercial database licenses do, it is laughably paranoid to worry about this.

    If you must, and the product is GPL, include a written offer to send the source code for a reasonable reproduction fee, and you're OK under the GPL (if posting on the web is too expensive). If BSD, then put BSD license at the end of the work and endnote any screenshots to point to it. You get the idea -- if the lawyers are worring that a screen shot is a form of redistributing the software, just comply with whatever the particular restrictions are for binary redistribution.
    • The difference is that a book is typically published as a commercial product, for a profit. I think this is related to using pictures of recognizable people or property in commercial works.

      Fair use only allows for limited, non-commercial uses (i.e. criticisms, news oriented, etc.).

      In other words, a How-To book would probably be considered commercial, while a review showing the current look of the application would probably fall under fair-use.
      • Fair use only allows for limited, non-commercial uses (i.e. criticisms, news oriented, etc.).

        Last I checked, Time, Newsweek, the New York Times Book Review, etc were all for-profit corporations.

        Maybe the Gnome Foundation can give a fig leaf to make the lawyers happy??
      • Fair use only allows for limited, non-commercial uses (i.e. criticisms, news oriented, etc.).

        Not quite. "Fair use" is a deliberately subjective four-part test that considers:

        1. the purpose and character of your use
        2. the nature of the copyrighted work
        3. the amount and substantiality of the portion taken, and
        4. the effect of the use upon the potential market.

        source: [stanford.edu] So you're not exactly wrong because "limited" and "non-commercial" are factors, but they're not the only factors, and it's conceivable that a la

    • >It makes wearing a tinfoil hat look like locking your front door when you go out for the day.

      For your information I wear my tinfoil had and lock my door and wash my hands when I go out for the day - although I try to go out as little as possible, it must be noted.

      Am I alone in this?

  • Necessary? (Score:3, Insightful)

    by metamatic ( 202216 ) on Friday June 17, 2005 @03:54PM (#12846358) Homepage Journal
    But that is just what our legal/IP review team is pursuing. Is this necessary?


    Of course it is; how else are your legal team going to justify their salaries?

  • Fair Use (Score:5, Insightful)

    by molo ( 94384 ) on Friday June 17, 2005 @04:09PM (#12846546) Journal
    If you are publishing in the U.S., Fair Use should apply in this situation. It is for a review/criticism/educational purpose to take the screenshot and comment on the program's use. See Wikipedia article on Fair Use [wikipedia.org]

    -molo

  • Not a problem for GPL software (Score:3, Interesting)

    by andyross ( 48228 ) * on Friday June 17, 2005 @05:25PM (#12847204)
    From the GPL, right up at the top, in paragraph 0:

    The act of running the Program is not restricted, and the output
    from the Program is covered only if its contents constitute a work
    based on the Program (independent of having been made by running the
    Program). Whether that is true depends on what the Program does.

    Taking a screenshot is clearly "running" the program, so that is not
    restricted. And clearly a screenshot (an image) is not a derived work
    of the program, so that's fine too.

    Only the most technically incompetant or clinically paranoid legal
    team could have a problem with this.

    • Taking a screenshot is clearly "running" the program, so that is not
      restricted. And clearly a screenshot (an image) is not a derived work
      of the program, so that's fine too.

      Only the most technically incompetant or clinically paranoid legal
      team could have a problem with this.

      What is says is that the output of the program is not restricted by the GPL, because the GPL does not cover the output, only the program.

      I can write and release a program under the GPL ... say it writes bad haiku, and the output is th

    • And clearly a screenshot (an image) is not a derived work of the program, so that's fine too.

      Actually, what seems clear to me is that a screenshot (an image) is a derived work of the program.

    • And clearly a screenshot (an image) is not a derived work of the program,

      That is not at all clear. If the visual design of a program is a copyrightable work (and it is), then a screenshot of it is just as much a "derivative work" as a scan of a professional wedding photo is. You need to make a "fair use" argument for it (which seems pretty easy).

      Besides, this GPL-gazing is missing the point. This legal verbiage is included in the licence to assure people using Free software that they don't have to G

    • I think that output of the program is referring to any work you do with the program, (e.g. the document you typed up in a word processor).

  • TV (Score:2, Insightful)

    by wbren ( 682133 )
    This question may seem completely unrelated to the story, but I'll ask anyway. Why is Windows shown so little on TV, while the Mac is shown so much? If you watch a commercial where a website is shown on a computer screen, it's almost always a Mac interface. Are the producers afraid MS will sue? If so, why aren't they afraid Apple will sue? Or do they just like Macs better in Hollywood?
    • Probably because macs are more prevalant for graphic designers and advertisers. If it's a tv show or movie apple's probably paying to get it in their, I'm sure microsoft doesn't see a point in them doing that.
    • The cynic in me says it's a paid promotion.

      I've seen laptops where you never see the screen sprouting the Apple logo.

      I wouldn't put it past studios to put such tv-screen-real-estate up for sale.

      Heck, I'm so cynical that for today's movies and prime-time TV shows, I just assume every can of brand-name cola or box of brand-name cereal is a paid ad, even if it isn't.

      "All your product placement are belong to us."
  • If one particular OSS group really raises a stink, could someone "fork" the software and take screenshots of their "own" application? I suppose one would have to blur out or replace any trademarks, but that's not too hard.
  • I like the fact that "Microsoft makes it easy" is linked to a page which says "We're sorry, but there is no Microsoft.com Web page that matches your entry."

  • Is Microsoft's claim based in law or desire? (Score:3, Interesting)

    by jbn-o ( 555068 ) <mail@digitalcitizen.info> on Saturday June 18, 2005 @01:01AM (#12849539) Homepage

    First, this is a question for a competant copyright lawyer. You should not base business decisions on the musings of /. posters. That said, I'll pitch in my two cents because I think it should spark something for you to do some research on.

    You have pointed to a non-existant page at Microsoft, so reading the terms you referred to is not as easy as following the link. However, regardless of what these terms are, if I were in your shoes, I would first want to know: is Microsoft's claim of being able to set terms by which screenshots are used based on some law? If they have no grounding in law, then their terms are useless, no matter how "easy" they make it for publishers to acceed to their request. You make it sound like your publisher is simply letting Microsoft tell them how to run their business, by blindly accepting and working within the limits drawn up by Microsoft then using that (possibly bogus claim of power) as a means of framing the debate for copyright holders in the free software world.

    Questioning Microsoft's power is critical to answering your question because if Microsoft's claims are based on nothing but their desire to control you and your publisher, then you'll find that there is nothing for the free software community to do. Hence, asking the free software community for screenshot licensing terms is a moot point.

    The text of the GNU GPL is an excellent example of this point: in the GPL, the most commonly used free software license, you'll find the text that reads "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope.". This is because the FSF put a lot of work into writing a license that is actually based on copyright law, enforcible around the world wherever there is a copyright regime (because, at the basic level at which the GPL is written to work, these copyright systems are quite similar). The FSF, and all GPL licensors, draw strength from working so closely to what copyright law actually gives copyright holders power to work with. Microsoft, on the other hand, claims powers in its licenses which I doubt they have the power to enforce, such as their claim of prohibitng you from using FrontPage (Microsoft's web page editor) to make webpages which disparage Microsoft.

    I would also question the validity of Microsoft's screenshot licensing terms because I'd wonder if a screenshot is not simply the output of a process, something which the FSF claims is "legally impossible" for a copyright holder to control [gnu.org]. The GPL has proven to be legally defensible (both because lawyers agree it is defensible and therefore encourage their clients not to bring suit based on the GPL, and in the few cases which have gone to court), hence I tend to trust the FSF's interpretation of copyright law.

    • As a comics reviewer, I have occasionally run into publishers that assert that I cannot use excerpts from their works without permission, even for review purposes. I ignore such claims, because they have no lawful basis for that restriction.

      The U.S. Supreme Court, the U.S. Congress, and a previous President of the United States say that I can do what I'm doing. As a citizen and resident of that country, that's good enough for me.

      • The problem is some people and organizations -- particularly including publishers -- are lawsuit-averse to a fault. They'll insist you get permission for every single quote you use, every excerpt from a song, news article, etc, and yes, every screen shot. They don't want to be sued, even if they're right. And they know damn well that the courts could come down against them.

        Not much you can do about that attitude, unless you have a few million dollars to publish, promote, and distribute it yourself.
  • I ignore those stupid laws.
    If I post and write about some piece of software I'm even ADVERTISING their product, what's the issue?

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