AbiWord, trademarks, and DFSG-freeness
Hi folks, At Josh Kwan's request, I hopped into the IRC channel used by AbiWord developers and had a brief chat with them about our concerns over trademark licensing. Let me try to summarize their position as I understand it: A) The existing trademark restrictions documented in /usr/share/doc/abiword/copyright are out of date, as is URL: http://www.abisource.com/tm_guide.phtml . Unfortunately, there appears to be nothing available that supersedes these documents. B) As far as I can tell, they feel that the trademark usage guidelines Dom Lachowicz communicated to Debian[1] should suffice for our needs. C) They feel that because trademark rights are automatic and implicit (though you are in a better position to sue people if you claim your marks with a (TM), and better still if you register them with the United States Patent and Trademark Office, earning the right to put (R) next to your mark), that there is nothing unique about their situation, and Debian needs to solve the trademark problem for everything we distribute before singling them out for special attention. D) They don't want to say anything more on the matter until and unless we can come back with some real lawyers. E) At least some of them appear to feel that we don't understand the distinction between copyrights and trademarks. It may be the case that the AbiWord developers interpret documents like the DFSG[3] and OSD[4] as applying only to copyright licenses. I am speculating, but it would explain some of the strenuousness of their protestations. It is my opinion -- and to my knowledge the general consensus of those familiar with such documents -- that the DFSG and OSD (and the Free Software Foundation's four freedoms for software[5]) are completely neutral as to the legal mechanisms that are employed (even if by default) to prohibit the exercise of users' prerogatives to use, copy, modify, and distribute software. Before proceeding, permit me to make the following observations: There is a kind of fair use that applies to trademarks, just as there is to copyrights. Just because IBM is a trademark doesn't mean the IBM Corporation has complete and arbitrary control over *all* appearances of this word[6]. As far as I know, trademark holders cannot prohibit people from using the mark to make factual assertions, write product reviews, report on SEC filings, rant in newsgroups, and so forth. It is my (weak) understanding that trademarks are mostly designed to prohibit confusion in the marketplace, by providing legal remedies against people who pass off a product as being something it is not, or originating from some place that it does not. In the U.S., the Lanham Act[7] is the most often cited provision of federal law dealing with trademarks in commerce. Consequently, I think we need to be careful when modifying works that use a trademark to identify themselves. In the U.S., I can buy boxes of Cracker Jacks from the store, advertise them, and sell them without the permission of the Frito-Lay Company. However, if I open those boxes of Cracker Jacks -- say to mix in almonds or dried, pitted prunes -- and advertise and sell the result as Cracker Jacks, the Frito-Lay Company will probably have a good case against me in court. In the interests of full disclosure, I should mention that the AbiWord developers I spoke to did not find the above analogy very persuasive. Unfortunately, I was unable to figure out why. Therefore, I think the biggest question for us is: 1) Do the default protections that attach to trademarks, even when unregistered and unmentioned (not even with a (TM)), infringe upon the freedoms the DFSG purports to defend? Further questions are: 2) Do these default protections vary widely in the jurisdictions Debian typically has to cope with? I know WIPO, the World Intellectual Property Organization, claims to have been working for years to harmonize issues of mark usage, but they also claim to do that for things like copyright terms, and what really happens is that copyright cartels see to it that the US and the EU keep leapfrogging each other, making the copyright durations longer and longer. 3) I don't know if the AbiWord developers are right about meaningful, strong, legal protections applying to potential trademarks if no notice of trademark status is made. After all, common dictionary words are frequently trademarked. 4) Are we willing to retain counsel (on a pro bono basis, I'd advise) to research these issues further? In lieu of pursuing all of the above questions exhaustively, I propose the following: P1) Adopt a kind of don't-ask, don't-tell policy regarding implicit trademarks. Many free software developers don't give a whit about trademarks, and some don't even care how much their software is patched by third parties while retaining the name. So, if you maintain a package that doesn't assert any trademarks, don't
Re: Academic Free License 2.1 -- free or not?
On Thu, Oct 14, 2004 at 02:21:44PM -0300, Carlos Laviola wrote: 3) Grant of Source Code License. The term Source Code means the preferred form of the Original Work for making modifications to it and all available documentation describing how to modify the Original Work. Licensor hereby agrees to provide a machine-readable copy of the Source Code of the Original Work along with each copy of the Original Work that Licensor distributes. Licensor reserves the right to satisfy this obligation by placing a machine-readable copy of the Source Code in an information repository reasonably calculated to permit inexpensive and convenient access by You for as long as Licensor continues to distribute the Original Work, and by publishing the address of that information repository in a notice immediately following the copyright notice that applies to the Original Work. Clause restricting the licensor. That's *fucked up*. Goodness knows what that means. 6) Attribution Rights. You must retain, in the Source Code of any Derivative Works that You create, all copyright, patent or trademark notices from the Source Code of the Original Work, as well as any notices of licensing and any descriptive text identified therein as an Attribution Notice. You must cause the Source Code for any Derivative Works that You create to carry a prominent Attribution Notice reasonably calculated to inform recipients that You have modified the Original Work. That's non-free if there are any significant 'Attribution Notice's. This is a thinly disguised variation on 'Invariant Sections'. 9) Acceptance and Termination. If You distribute copies of the Original Work or a Derivative Work, You must make a reasonable effort under the circumstances to obtain the express assent of recipients to the terms of this License. That's non-free. 10) Termination for Patent Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License as of the date You commence an action, including a cross-claim or counterclaim, against Licensor or any licensee alleging that the Original Work infringes a patent. This termination provision shall not apply for an action alleging patent infringement by combinations of the Original Work with other software or hardware. So's that. 11) Jurisdiction, Venue and Governing Law. Any action or suit relating to this License may be brought only in the courts of a jurisdiction wherein the Licensor resides or in which Licensor conducts its primary business, and under the laws of that jurisdiction excluding its conflict-of-law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any use of the Original Work outside the scope of this License or after its termination shall be subject to the requirements and penalties of the U.S. Copyright Act, 17 U.S.C. § 101 et seq., the equivalent laws of other countries, and international treaty. This section shall survive the termination of this License. And that. 12) Attorneys Fees. In any action to enforce the terms of this License or seeking damages relating thereto, the prevailing party shall be entitled to recover its costs and expenses, including, without limitation, reasonable attorneys' fees and costs incurred in connection with such action, including any appeal of such action. This section shall survive the termination of this License. And probably that one too. Greedy lawyer bitch-clause. This license is Copyright (C) 2003-2004 Lawrence E. Rosen. All rights reserved. Figures. Another in Rosen's long line of appallingly written, non-free licenses. Why do people even consider using these things? As a rule of thumb, any license involving the words Open, Free, or Rosen is non-free. Funny, that. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?
On Thu, Oct 14, 2004 at 02:39:31PM -0300, Carlos Laviola wrote: I must admit that I lack the legal expertise to claim that the AFL 2.1 conforms to the Debian Free Software Guidelines, since it talks about needlessly complicated things like patents and jurisdictions. Both the Open Source Initiative and the Free Software Foundation have analyzed the AFL and declared it conformant to their definitions of open source and free. Yuck. They really aren't trying very hard when analysing licenses these days if crap like this gets through. I get the feeling that you could manage to get the pet a cat license past them. It sounds like upstream has gone completely insane. Not a promising sign. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: License conflict for VM screensaver (kdeartwork)
On Friday 15 October 2004 04:22, Ben Burton wrote: Hi, (CCing debian-legal since they know better than I do. The problem here is a potential conflict between GPL and BSD-with-advertising-clause; see http://lists.kde.org/?l=kde-core-develm=109779477208076w=2 for my original post. The question now is whether the advertising clause can be assumed to be rescinded. Any comment would be welcome.) Effective immediately, licensees and distributors are no longer required to include the acknowledgement within advertising materials. Accordingly, the foregoing paragraph of those BSD Unix files containing it is hereby deleted in its entirety. So the mentioned paragraph in vm_random.c should be considered struck as per July 22, 1999 Cheers, Waldo -- [EMAIL PROTECTED] | SUSE LINUX 9.2: Order now! | [EMAIL PROTECTED] http://www.suse.de/us/private/products/suse_linux/preview/index.html pgpv7aizkz32r.pgp Description: PGP signature
Re: Academic Free License 2.1 -- free or not?
On 2004-10-14 18:21:44 +0100 Carlos Laviola [EMAIL PROTECTED] wrote: 9) Acceptance and Termination. If You distribute copies of the Original Work or a Derivative Work, You must make a reasonable effort under the circumstances to obtain the express assent of recipients to the terms of this License. [...] Regardless of DFSG, is this a practical problem for debian mirrors? 10) Termination for Patent Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License as of the date You commence an action, [...] Termination of copyright licence for patent action, including counter-claims in defence. I still think this is too broad. If there aren't any patents afflicting the software, it's bending DSFG 9 (contaminate other software, by removing some ways to defend your software against patent claims) even if it arguably doesn't break it. I'll be glad if other problems mean that we don't have to debate this too much again, unless someone has new data. 11) Jurisdiction, Venue and Governing Law. Any action or suit relating to this License may be brought only in the courts of a jurisdiction wherein the Licensor resides or in which Licensor conducts its primary business [...] Is this choice of venue? -- MJR/slefMy Opinion Only and not of any group I know Creative copyleft computing - http://www.ttllp.co.uk/ Speaking at ESF on Sat 16 Oct - http://www.affs.org.uk/
Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?
On 2004-10-14 18:39:31 +0100 Carlos Laviola [EMAIL PROTECTED] wrote: -- Forwarded message -- From: John Cowan [EMAIL PROTECTED] [...] Since none of us can possibly suffer a commercial loss, and since FIGlet is not registered with the Copyright Office, there is no one with standing to sue for statutory damages (actual damages being obviously $0). Is this assuming all contributors live in a particular jurisdiction? Do they? [...] How sure are you that a declaration that something is in the public domain actually makes it so? Lawyers don't agree on this point. I looked at the web site of Union for the Public Domain http://www.public-domain.org/ and finding useful nothing there, I emailed someone there. No reply yet. I must admit that I lack the legal expertise to claim that the AFL 2.1 conforms to the Debian Free Software Guidelines, since it talks about needlessly complicated things like patents and jurisdictions. Both the Open Source Initiative and the Free Software Foundation have analyzed the AFL and declared it conformant to their definitions of open source and free. The FSF list evaluates licences in abstract, not applied to particular software. Also, I suspect they assume that no free software patents are valid, so ignore those aspects, but I don't have a sure answer either way about that. The current process of the failed Open Source Initiative seems to say that they do not analyse licences themselves, but use the licence author's or owner's lawyers. The author of the AFL is the OSI board's legal adviser. [...] The AFL, on the other hand, is a contract between licensor and licensee whereby the licensor makes promises (mostly to refrain from certain things) that the licensee can readily enforce in court. I think this is the reason it is a practical problem. Entering into a contract readily enforceable in court usually needs some evidence of proper offer and acceptance, which most GNU/Linux distributions can't record. I could be wrong because I am not a lawyer but some of my friends are. If it's a contract, why isn't it called Academic Free Contract just to make that clear? ;-) I suspect Larry Rosen's work was part of the motive for Branden proposing the contract/ autocrat test for licences. -- MJR/slefMy Opinion Only and not of any group I know Creative copyleft computing - http://www.ttllp.co.uk/ Speaking at ESF on Sat 16 Oct - http://www.affs.org.uk/
Re: AbiWord, trademarks, and DFSG-freeness
On Fri, Oct 15, 2004 at 02:12:41AM -0500, Branden Robinson wrote: Therefore, I think the biggest question for us is: 1) Do the default protections that attach to trademarks, even when unregistered and unmentioned (not even with a (TM)), infringe upon the freedoms the DFSG purports to defend? I suspect that strictly as stated, no. Trademark dilution will stop this for most works - anything which has been repeatedly branched in the past, for example. You would have real trouble defending a trademark on 'glibc', 'gcc', or 'emacs' at this point. However, there almost certainly exist scenarios in which trademarks can be an issue. In lieu of pursuing all of the above questions exhaustively, I propose the following: P1) Adopt a kind of don't-ask, don't-tell policy regarding implicit trademarks. Many free software developers don't give a whit about trademarks, and some don't even care how much their software is patched by third parties while retaining the name. So, if you maintain a package that doesn't assert any trademarks, don't worry about it. For the above reasons I'm inclined to agree that this is safe. P2) If a package does assert a trademark, contact the mark holder and ask for a trademark license that permits usage of the marks under the same terms as the copyright license that has been attached to the corresponding work, wherever applicable. As with abiword, the main thrust here is: Can I call a modified version foo, even when you don't like the modified version? So that makes a good opener for people with no comprehension of trademarks; it'll rapidly categorise them into people who are and are not willing to grant a free license. (Answer appears to be 'no' for abiword; DFSG aside, we can't really afford to distribute it with trademarks intact) -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: License conflict for VM screensaver (kdeartwork)
Hi, So the mentioned paragraph in vm_random.c should be considered struck as per July 22, 1999 In which case, could you (or someone else willing to take this responsibility) please delete the clause from vm_random.c in CVS to avoid future confusion? Thanks - Ben.
Re: License conflict for VM screensaver (kdeartwork)
On Friday 15 October 2004 12:13, Ben Burton wrote: Hi, So the mentioned paragraph in vm_random.c should be considered struck as per July 22, 1999 In which case, could you (or someone else willing to take this responsibility) please delete the clause from vm_random.c in CVS to avoid future confusion? I don't think I can because the other part of the license says Redistribution and use in source and binary forms are permitted provided that the above copyright notice and this paragraph are duplicated in all such forms ... Cheers, Waldo -- [EMAIL PROTECTED] | SUSE LINUX 9.2: Order now! | [EMAIL PROTECTED] http://www.suse.de/us/private/products/suse_linux/preview/index.html pgpBu7TZL3Isk.pgp Description: PGP signature
Re: License conflict for VM screensaver (kdeartwork)
On Friday 15 October 2004 12:54, Andrew Coles wrote: On Friday 15 Oct 2004 11:37, Waldo Bastian wrote: I don't think I can because the other part of the license says Redistribution and use in source and binary forms are permitted provided that the above copyright notice and this paragraph are duplicated in all such forms ... Then how about adding: The aforementioned advertising clause was officially retracted in 1999: licensees and distributors are no longer required to include the acknowledgement within advertising materials. As such, this licence is compatible with the GNU GPL, for those concerned. Good idea, I added /* * Please note that as of July 22, 1999, the licensees and distributors * are no longer required to include the above mentioned acknowledgement * within advertising materials. For full details see * ftp://ftp.cs.berkeley.edu/pub/4bsd/README.Impt.License.Change */ Cheers, Waldo -- [EMAIL PROTECTED] | SUSE LINUX 9.2: Order now! | [EMAIL PROTECTED] http://www.suse.de/us/private/products/suse_linux/preview/index.html pgpfHn1cbFSxT.pgp Description: PGP signature
Re: License conflict for VM screensaver (kdeartwork)
Good idea, I added (...) Many thanks. Ben.
Re: License conflict for VM screensaver (kdeartwork)
That retraction is only valid for original BSD code, not for any changes to it. Ah, sorry -- don't drink derive, etc. -- this was also one of my concerns, especially since the file does seem to have been through some refashioning since it was pulled out of BSD. If any changes were made by us we'll need those committers to distance themselves from the advertising clause as well. Note that there also seem to be changes earlier on by non-KDE people (the comments at least read as though it was redesigned for glibc, and only later taken over to KDE). If it is too difficult to case up all the contributers to vm_random.c, might it be easier to alter the licensing on the KDE portions of the screensaver (the GPLed parts) in the meantime? Ben.
Re: License conflict for VM screensaver (kdeartwork)
On October 15, 2004 09:36 am, Ben Burton wrote: If it is too difficult to case up all the contributers to vm_random.c, might it be easier to alter the licensing on the KDE portions of the screensaver (the GPLed parts) in the meantime? Might it be even *easier*, to avoid all this hassle, to take a new copy of vm_random.c from a recent BSD, which is one without the advertising clause, do a diff, make required changes (without verbatin compying), and use that file? The new file will be a derrivitive work of the more recent vm_random.c, not the old one, so all this will be moot. -- There are two major products that came out of Berkeley: LSD and UNIX. We do not believe this to be a coincidence. ~Jeremy S. Anderson
IOSN FLOSS primers (fwd)
Drafts of some primers are available for public comment. For those who like alphabet soup, the International Open Source Network (IOSN) is an Asia Pacific Development Information Programme (APDIP) initiative of the United Nations Development Programme (UNDP). These publications could be useful as introductions for new developers. Sadly, they are licensed under a mix of CC-BY versions (sometimes including the supertrademark clause) and do not distribute terms! -- Forwarded message -- Date: 2004-10-15 14:49:55 +0100 From: Frederick Noronha (FN) [EMAIL PROTECTED] Subject: IOSN FLOSS primers Message-ID: [EMAIL PROTECTED] Newsgroups: comp.os.linux.announce Please visit http://www.iosn.net The IOSN is producing a series of primers on Free/Libre and Open Source Software (FLOSS). The primers serve as introductory documents to FOSS in general, as well as covering particular topic areas in greater detail. Their purpose is to raise FOSS awareness, particularly among policy-makers, practitioners and educators. [...] -- MJR/slefMy Opinion Only and not of any group I know Creative copyleft computing - http://www.ttllp.co.uk/ Speaking at ESF on Sat 16 Oct - http://www.affs.org.uk/
Re: AbiWord, trademarks, and DFSG-freeness
O Venres, 15 de Outubro de 2004 ás 02:12:41 -0500, Branden Robinson escribía: First of all, I Am Not A Lawyer, so don't sue me if your trial goes bad. It's all your fault for believing me :-) And now... I think that trademarks are irrelevant to DFSG-freeness since if the copyright license is DFSG-free, we would still be able to distribute the software even if we were asked by the trademark owner not to use its upstream name (we'd have to change the name. It would be a hassle, but the software would still be DFSG-free). IOW, nowhere in the DFSG says something like you cannot restrict the user's right to have their modified copies of the software called in the same way as the original. In fact, there's one place (DFSG #4) where it says just the opposite :-) So take the following only FYI, since I think you'd like to know about it. Or if there's interest in ever writing a trademark license for the Debian logos, which allow the maximum admissible freedoms :-) First, useful URLs: http://www.oepm.es/internet/legisla/signos/iii21lmar.htm This is the URL to the Spanish trade mark law. It's in Spanish but it's there for the record :-) http://europa.eu.int/eur-lex/en/consleg/main/1989/en_1989L0104_index.html This is the EU trade mark directive. All EU member states' trade mark laws have to comply with this. http://europa.eu.int/eur-lex/en/consleg/main/1994/en_1994R0040_index.html This is the Council Regulation on the Community trade mark. That is, EU-level trade marks. Its wording is similar to the Spanish law... 1) Do the default protections that attach to trademarks, even when unregistered and unmentioned (not even with a (TM)), infringe upon the freedoms the DFSG purports to defend? In Spain, trademark owners have no rights until they register them, or unless the trademark is notoriously known in Spain. After registering a trademark, its owner has the right to prohibit its use, but these prohibitions are not enabled by default (it's the owner who has to actively enforce the prohibitions). So there are no default protections in Spanish trademark law. I think it is the same for Community trademarks, that is, EU-level trademarks. 3) I don't know if the AbiWord developers are right about meaningful, strong, legal protections applying to potential trademarks if no notice of trademark status is made. After all, common dictionary words are frequently trademarked. In Spain, notice does not affect (in principle) the outcome of a trademark suit. Only a ceasedesist order, which would earn the trade mark holder damages in some cases. P1) Adopt a kind of don't-ask, don't-tell policy regarding implicit trademarks. Many free software developers don't give a whit about trademarks, and some don't even care how much their software is patched by third parties while retaining the name. So, if you maintain a package that doesn't assert any trademarks, don't worry about it. This is sane; if no TM is asserted, do nothing special. P2) If a package does assert a trademark, contact the mark holder and ask for a trademark license that permits usage of the marks under the same terms as the copyright license that has been attached to the corresponding work, wherever applicable. No; ask for a license that allows usage of the name for packages derived from the original and whose (behaviour, form, etc) does not deviate substantially from that of the original software. Or more than a license: prohibition of using the trade mark for any piece of software which is not derived from the original one or has had major modifications. I don't think more is needed. Look at first paragraphs to see why. -- Jacobo Tarrío | http://jacobo.tarrio.org/
Re: AbiWord, trademarks, and DFSG-freeness
O Venres, 15 de Outubro de 2004 ás 17:50:29 +0200, Jacobo Tarrio escribía: I think that trademarks are irrelevant to DFSG-freeness since if the Oops, I have just thought of a case where it isn't so, at least in Spain. The Spanish trade mark law allows the owner of a trademark to prohibit its removal from a product. I don't know what I would think of a piece of software with a name that couldn't be changed. It would make forking impossible... so now I know. Non-free. But it wouldn't be the case more often. More trade mark holders are more eager to have you NOT use their mark than the inverse ;-) Some hypothetical Debian Free Trade Mark Guidelines (DFTMG) would have this item: the trade mark license must allow removing the mark from the work. -- Jacobo Tarrío | http://jacobo.tarrio.org/
Re: AbiWord, trademarks, and DFSG-freeness
On Fri, Oct 15, 2004 at 06:11:12PM +0200, Jacobo Tarrio wrote: Oops, I have just thought of a case where it isn't so, at least in Spain. The Spanish trade mark law allows the owner of a trademark to prohibit its removal from a product. If we are prohibited from removing the name abiword from some derivative form of the program, then we must be allowed to have abiword on that derivative form. Alternatively, once we're not allowed to have abiword on the derivative form, we can't be prohibited from removing the name. -- Raul P.S. you have permission to quote in other forums anything I've written and sent to debian-private in the last year.
Re: AbiWord, trademarks, and DFSG-freeness
On Fri, Oct 15, 2004 at 17:50:12 +0200, Jocobo Tarrio wrote: IOW, nowhere in the DFSG says something like you cannot restrict the user's right to have their modified copies of the software called in the same way as the original. In fact, there's one place (DFSG #4) where it says just the opposite :-) However, trademarks can cover much more than just the name of a package. It could conceivably be a great deal of work to search and destroy every necessary mark in a package if one changes that package in a way the trademark holder doesn't like. -- paul
Re: AbiWord, trademarks, and DFSG-freeness
On Fri, Oct 15, 2004 at 02:12:41AM -0500, Branden Robinson wrote: C) They feel that because trademark rights are automatic and implicit (though you are in a better position to sue people if you claim your marks with a (TM), and better still if you register them with the United States Patent and Trademark Office, earning the right to put (R) next to your mark), that there is nothing unique about their situation, and Debian needs to solve the trademark problem for everything we distribute before singling them out for special attention. Legal trademark rights are _far_ from automatic or implicit. It is true that you can have a trademark just by giving a name to a product, but that's exactly equivalent to saying that your product has a name. Giving your product a name bestows zero rights. Trademark rights are accumulated in the following ways (as I understand it): - using the name in commerce and having adequate documentation to prove it. - telling people that the name is used to mark your trade, either by using (TM) or cease-and-desist letters. - ensuring that you are the sole user of the name - registering the trademark If they actually care about the trademark, they would have already registered it, since it's the only sure way of claiming it. Also, it is common practice for individuals or companies to modify a trademarked product, sometimes quite significantly, and resell it using the name of the original product (although, for product differentiation, they typically make sure that people know that the product is modified or improved). This only works if the product or class of products is commonly modified in this way -- Cracker Jacks or other food products clearly do not fit this. On the other hand, cars, vans (conversion vans), and computers do. GPL'd software is in pretty safe territory as far as modification goes. dave...
