Re: Linux mark extortion

[Raul Miller]

It's not at all clear to me that we need to sublicense anything.

It's not at all clear to me that we need to have anything authorized.

It's not at all clear to me how our use of the term could reasonably
be seen as dilution of the Linux mark.

If people want to get this matter clarified, officially, I don't have
a problem with that.

On the other hand, I don't see any extortion going on here in any way,
shape or form.

-- 
Raul

Re: Linux mark extortion

[Glenn Maynard]

On Sat, Jun 18, 2005 at 01:40:17AM -0400, Stephen Frost wrote:
> What's the scenario you're concerned about here?  Someone taking Debian
> and distributing it as "MyLinux" and Debian not protecting that use
> somehow?

Debian certainly cares about the terms under which Debian can be reused;
this is one.  As far as impressions go, it certainly feels non-free that
I can't take "Debian GNU/Linux", fork and rename it to "Glenn GNU/Linux"
and sell it.  My impression would possibly be different this wasn't being
applied retroactively, after Linux was usable with no restrictions for
years; it feels in the same boat as the Pine licensing mess, where UW
retroactively "un-freed" Pine.  If "Linux" had these terms to begin with,
people would probably have used a different name; we're stuck with it
now, and suddenly we have to pay for it.  It feels like we've been bait-
and-switched.

(I'm not entirely decided on the issue, applied non-retroactively: the
Apache v1 "may not be named *Apache*" terms are considered Free, but
this feels far more wide-reaching.  In any event, I'm having a hard time
seeing anything but undisguised hypocrasy on Linus's part here; as much
distaste as I have for making such a conclusion, I can't seem to find
any other ...)

-- 
Glenn Maynard


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Re: Linux mark extortion

[Bruce Perens]

Well, Linus purpose here is to keep people from using the mark for
stuff that isn't Linux at all, and to keep someone from attempting to
appropriate the mark and restrict others from doing so.

It's just the implementation that sucks.

This was done by OSDL lawyers or Gervaise Davis' law firm and they just
didn't bother to consider us. Maddog administers this for Linus, and
it's not clear to me what he was thinking in going this far without
bringing Debian in for at least a look over the terms.

I think we need to marshall our objections to bring them to Maddog as a
group.

    Thanks

    Bruce

Glenn Maynard wrote:

  On Sat, Jun 18, 2005 at 01:40:17AM -0400, Stephen Frost wrote:
  
  
What's the scenario you're concerned about here?  Someone taking Debian
and distributing it as "MyLinux" and Debian not protecting that use
somehow?

  
  
Debian certainly cares about the terms under which Debian can be reused;
this is one.  As far as impressions go, it certainly feels non-free that
I can't take "Debian GNU/Linux", fork and rename it to "Glenn GNU/Linux"
and sell it.  My impression would possibly be different this wasn't being
applied retroactively, after Linux was usable with no restrictions for
years; it feels in the same boat as the Pine licensing mess, where UW
retroactively "un-freed" Pine.  If "Linux" had these terms to begin with,
people would probably have used a different name; we're stuck with it
now, and suddenly we have to pay for it.  It feels like we've been bait-
and-switched.

(I'm not entirely decided on the issue, applied non-retroactively: the
Apache v1 "may not be named *Apache*" terms are considered Free, but
this feels far more wide-reaching.  In any event, I'm having a hard time
seeing anything but undisguised hypocrasy on Linus's part here; as much
distaste as I have for making such a conclusion, I can't seem to find
any other ...)

  

Re: Linux mark extortion

[Stephen Frost]

* Bruce Perens ([EMAIL PROTECTED]) wrote:
> Stephen Frost wrote:
> 
> >What's the scenario you're concerned about here?  Someone taking Debian
> >and distributing it as "MyLinux" and Debian not protecting that use
> >somehow?
> >
> Not even that. The license only applies to "(c) on AUTHORIZED
> GOODS/SERVICES which are (i) produced by or for SUBLICENSEE, and (ii)
> distributed under SUBLICENSEE?s name."
> 
> Debian distribution does not work this way. Debian CDs are not produced
> by or for us, they are made by third parties with whom we have no
> contract. They are not distributed in our name but in the name of those
> third parties.
> 
> In other words, I don't see that the license as currently written works
> for software that our CD manufacturers duplicate and sell.
> 
> They clearly did not understand our model and did not bother to ask us
> about it. Debian is still the #2 Linux distribution worldwide, so this
> seems to me to be a pretty significant error.

Did I miss something here?  Does Debian actually have such a license (or
SPI)?  Have you talked with them and gotten them to agree with your
interpretation that we even need a license?  Have they contacted Debian
or SPI about having us get a license?

From what I've seen to date it seems like they've contacted UserLinux
(which it appeared you agreed was reasonable in a prior email given that
you were saying you'd be willing to pay the license costs) about a
license but havn't contacted Debian or SPI about one.  Perhaps there's a
reason for that- ie: that Debian's use (and therefore the use of the
same "Debian GNU/Linux" text) falls under "descriptive use" and they've
no reason or intent to ask us or our distributors to get a license,
which makes the concerns you have about the license go away wrt Debian
I'd think...

Please let me know if there's something I've misunderstood here.  In
any case it'd probably make some sense to talk to them before jumping to
conclusions and, honestly, if we need to make some minor wording change
or something to be able to avoid having a license at all personally I
think I'd be fine with that.

Thanks,

Stephen


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Re: Linux mark extortion

[Bruce Perens]

Stephen Frost wrote:

>What's the scenario you're concerned about here?  Someone taking Debian
>and distributing it as "MyLinux" and Debian not protecting that use
>somehow?
>
>   Stephen
>  
>
Not even that. The license only applies to "(c) on AUTHORIZED
GOODS/SERVICES which are (i) produced by or for SUBLICENSEE, and (ii)
distributed under SUBLICENSEE’s name."

Debian distribution does not work this way. Debian CDs are not produced
by or for us, they are made by third parties with whom we have no
contract. They are not distributed in our name but in the name of those
third parties.

In other words, I don't see that the license as currently written works
for software that our CD manufacturers duplicate and sell.

They clearly did not understand our model and did not bother to ask us
about it. Debian is still the #2 Linux distribution worldwide, so this
seems to me to be a pretty significant error.

Thanks

Bruce


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Re: Linux mark extortion

[Stephen Frost]

* Bruce Perens ([EMAIL PROTECTED]) wrote:
> The problem isn't the cost. Even the most expensive tier is only
> $5K/year. It's the license terms. As usual for agreements drawn up to
> accomodate the commercial software vendors of the world and not us, they
> don't take into account sublicensing of our product.
> 
> I'd be happy to license their mark for Userlinux, a commercial product,
> if I felt their terms were fair for Debian. Nothing doing until that's
> the case.

What's the scenario you're concerned about here?  Someone taking Debian
and distributing it as "MyLinux" and Debian not protecting that use
somehow?

Stephen


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Re: Linux mark extortion

[Bruce Perens]

The problem isn't the cost. Even the most expensive tier is only
$5K/year. It's the license terms. As usual for agreements drawn up to
accomodate the commercial software vendors of the world and not us, they
don't take into account sublicensing of our product.

I'd be happy to license their mark for Userlinux, a commercial product,
if I felt their terms were fair for Debian. Nothing doing until that's
the case.

Thanks

Bruce

 Stephen Frost wrote:

>  Just because they have a schedule on their webpage for
>non-profits doesn't necessairly mean they'd be unwilling to deviate 
>from it.  (Yes, I did see that previously myself)
>
>   Stephen
>  
>


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Re: Bug#207932: Statement that all of Debian needs to be Free?

[Glenn Maynard]

On Fri, Jun 17, 2005 at 10:13:39PM +0200, Jérôme Marant wrote:
> They are out of the scope of the DFSG. They are neither programs nor
> documentation: they are speeches and articles which are logically
> non modifiable without the consent of their author.

Sorry, you're wrong.  The Social Contract states that everything in
Debian must be free, with the DFSG being the guidelines to determine
whether a work is free.  This has been discussed at extreme length,
culminating in SC2004-003, which affirmed that everything in Debian
must be free, regardless of whether it's labelled "program", "software",
"documentation", "data", "font", "manifesto", "speech", "article"
or anything else.  Streams of bits, regardless of content, must be
freely modifiable, with the sole exception of license texts, or they
can not be in Debian.

I don't feel this is an interesting line of debate; you're arguing
as if you missed the thousands of messages leading up to and surrounding
SC2004-003, and I don't feel compelled to repeat those discussions.
The Social Contract and the DFSG apply to everything in Debian, not
just the parts that are convenient to you.

-- 
Glenn Maynard


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Re: Linux mark extortion

[Stephen Frost]

* Steve Langasek ([EMAIL PROTECTED]) wrote:
> On Fri, Jun 17, 2005 at 02:36:52PM -0400, Stephen Frost wrote:
> > Of course, other alternatives would be to ask if they'd let us have a
> > license without the costs, given that we're a not-for-profit, etc.
> 
> Non-Profit Tier
> 
> Annual Fee ??? US$200/year for each SUBLICENSEE MARK incorporating the
> SUBLICENSED TRADEMARK
> 
> Applicable to
> 
> * Not-for-profit entities registered under applicable law.
> 
> 
> 
> 

  Just because they have a schedule on their webpage for
non-profits doesn't necessairly mean they'd be unwilling to deviate 
from it.  (Yes, I did see that previously myself)

Stephen


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Re: Linux mark extortion

[Steve Langasek]

On Fri, Jun 17, 2005 at 02:36:52PM -0400, Stephen Frost wrote:
> * Bruce Perens ([EMAIL PROTECTED]) wrote:
> > The userlinux project has been approached by the Linux Mark Institute
> > with a demand for money in order to make use of the "Linux" trademark.
> > Said demand would also apply to the Debian project. I believe their
> > terms to be non-DFSG-compliant. See http://www.linuxmark.org/ . Debian
> > has made historicial use of the mark GNU/Linux and has a right to
> > continue to do so.

> I'm not entirely sure that what Debian does wouldn't fall under the
> "descriptive use" concept.  "Debian GNU/Linux" is more like "Debian for
> GNU/Linux" than "DebianLinux".  Personally I couldn't care less about
> removing "GNU/Linux" from the 'name' of the Debian product (not that I'm
> entirely sure I'd even consider it part of the name, but whatever).
> That would seem to alliviate this issue regardless.

> Of course, other alternatives would be to ask if they'd let us have a
> license without the costs, given that we're a not-for-profit, etc.

Non-Profit Tier

Annual Fee – US$200/year for each SUBLICENSEE MARK incorporating the
SUBLICENSED TRADEMARK

Applicable to

* Not-for-profit entities registered under applicable law.





-- 
Steve Langasek
postmodern programmer


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Re: Linux mark extortion

[Michael K. Edwards]

On 6/17/05, Raul Miller <[EMAIL PROTECTED]> wrote:
> Linux already has already been established as meaning the linux kernel
> as well as distributions involving the linux kernel.  It's a generic
> term in that context.

That alone doesn't make it a generic term; it suggests that Linus
doesn't object to that degree of dilution through blurring, and
doesn't think those uses of his mark (including the broad outline of
distros' patch practices) cause confusion among customers for the
product he markets (the mainline kernel).

Have you, perhaps, case law to exhibit in support of your "generic
term" assertion?  It _might_ be a generic term by now, in some
jurisdictions, for operating systems built on minor variants of
Linus's kernel.  However, I certainly wouldn't want to be the first
person defending a trademark infringement or dilution case on that
basis in any given jurisdiction.

> That doesn't mean it's a generic term in all contexts -- there's no
> widely used Linux certification test suite, for example.

That's a case of "this product operates with the Linux program", which
is a usage frequently sanctioned by courts (as in the MySQL case) even
when the user is enjoined from otherwise using the mark in advertising
and marketing materials.  I think it quite improbable that the FooWare
Certification Test Suite (which Assists Developers in Verifying that
their Program Operates Properly on Linux) requires any trademark
license whatsoever.

Unless, of course, it results in dilution of a mark that is famous in
its niche; see Times Mirror Magazines v. Las Vegas Sports News at
http://laws.findlaw.com/3rd/991299.html .  Suppose, for instance,
Linus refused to accept a given multimedia-friendly preemption patch
into the mainline kernel because it makes one box in a thousand slag
itself, and someone started marketing a FooWare Multimedia Linux Test
Suite which implied that people should be using that patch on
multimedia-oriented systems.

Linus can probably say with a straight face that he "believe[s] that
there is a portion of the population that is adamantly opposed to
[machines slagging themselves] and that they would not look favorably
on any of [his] products if they thought [Linus was] promoting
[self-slagging machines] in any way."  (Quotation from Times Mirror,
mutatis mutandis.)  He can then point to the Times Mirror case in
support of a request for injunction against FooWare's otherwise
non-confusing use of the Linux trademark.

> Is there anything else that makes you think that this will be a
> concern for Debian?

That word "AUTHORIZED" is the big sticking point.  Is it correct to
say that Debian's use of the Linux trademark would make it appear to
an uninformed user that it has been authorized by the trademark
holder?

I think that, as far as a tarnishment theory of dilution is concerned,
all parts of the distro other than the kernel itself can probably
safely do anything with respect to the Linux mark that Connectix does
with the Playstation mark (see Sony v. Connectix).  But this doesn't
necessarily apply to the use of the Linux mark on a heavily patched
kernel, especially if the system doesn't really work right with a
mainline kernel.  As I understand it, Debian doesn't do so badly that
way at present (despite the use of cramfs initrds); but Montavista and
(if their current practice is anything like their behavior when last I
worked heavily with their releases) Red Hat might have cause for
worry.

On the other hand, Linux works so closely with Alan Cox that he
probably can't claim he hasn't more or less OK'ed Red Hat's
methodology all along.  Can Debian (or UserLinux or Montavista or
Ubuntu or whoever) argue similarly?  Debian may be more vulnerable
than some, since Linus almost certainly doesn't approve of a crusade
to expunge "non-free" firmware from Debian's kernels.  Time (and the
courts) will tell.

Cheers,
- Michael
(IANADD, IANAL, TINLA)

Re: Linux mark extortion

[Steve Langasek]

On Fri, Jun 17, 2005 at 08:20:51PM -0400, Raul Miller wrote:
> On 6/17/05, Bruce Perens <[EMAIL PROTECTED]> wrote:
> > Raul Miller wrote:
> > >Reading the LMI site, they're only requiring a license on
> > >uses of Linux which are not labelling OS software.

> > Maybe you misread it. According to the license terms, "AUTHORIZED
> > GOODS/SERVICES", including software, do require a license.

> I don't think that's valid a valid interpretation.

> Linux already has already been established as meaning the linux kernel
> as well as distributions involving the linux kernel.  It's a generic
> term in that context.

I don't see anything on that site indicating that LMI acknowledges that the
term "Linux" is generic in this context.  I believe this is the case, and I
believe the longstanding track record of unenforcement is sufficient
protection for Debian's use of the name, but that doesn't ensure LMI won't
be litigious about it or otherwise try to extract license fees related to
the kernel name.

-- 
Steve Langasek
postmodern programmer


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Re: Linux mark extortion

[Raul Miller]

On 6/17/05, Bruce Perens <[EMAIL PROTECTED]> wrote:
> Raul Miller wrote:
> >Reading the LMI site, they're only requiring a license on
> >uses of Linux which are not labelling OS software.

> Maybe you misread it. According to the license terms, "AUTHORIZED
> GOODS/SERVICES", including software, do require a license.

I don't think that's valid a valid interpretation.

Linux already has already been established as meaning the linux kernel
as well as distributions involving the linux kernel.  It's a generic
term in that context.

That doesn't mean it's a generic term in all contexts -- there's no
widely used Linux certification test suite, for example.

Is there anything else that makes you think that this will be a
concern for Debian?

Thanks,

-- 
Raul

Re: Bug#207932: Statement that all of Debian needs to be Free?

[Michael K. Edwards]

On 6/17/05, Jérôme Marant <[EMAIL PROTECTED]> wrote:
> Glenn Maynard <[EMAIL PROTECTED]> writes:
> 
> >> etc/{CENSORSHIP,copying.paper,INTERVIEW,LINUX-GNU,THE-GNU-PROJECT,WHY-FREE}
> >
> > only "copying.paper" sounds like a license; the rest are simply documents,
> > which must be DFSG-free to be in Debian.  This is not a matter of
> > controversy, or even significant disagreement; SC2004-003 made this
> > explicitly clear.  Please remove these non-free documents; the grace
> > period allowed by SC2004-004 expired with the release of sarge.
> 
> They are out of the scope of the DFSG. They are neither programs nor
> documentation: they are speeches and articles which are logically
> non modifiable without the consent of their author.
> 
> Whether they are around or not is irrelevant to the freeness of Emacs.

IMHO, Jérôme is right but for the wrong reasons.  In many
jurisdictions (especially France, but other parts of US law besides
copyright have similar consequences), copyright license does not and
cannot grant authority to misattribute or violate the integrity of an
artistic or polemical work.  These documents are not part of the "work
of authorship" that is the Emacs program and documentation.  They may
be retained or removed; but they may not be arbitrarily modified.

Personally, I would retain them as a courtesy to upstream; users are
no more and no less free to modify or remove them than Debian is.  The
alternative -- to demand that all content other than license texts and
other legal indicia must be arbitrarily modifiable in order to be
DFSG-free -- is logically consistent but would require the removal of
all remotely "artistic" or "polemical" works in the Debian archive.

The GFDL is another story, because under some circumstances it
purports to condition the permission to modify and redistribute the
substance of the document on the retention of unrelated material. 
Personally, my reasons for objecting to the GFDL are different; but I
just want to make the point that a putative debian-legal (or even
Debian-wide) consensus on the DFSG-freeness of the GFDL has no bearing
on whether it is OK to retain LINUX-GNU et al.

Cheers,
- Michael
(IANAL, IANADD)

Re: Linux mark extortion

[Bruce Perens]

Raul Miller wrote:

>Reading the LMI site, they're only requiring a license on
>uses of Linux which are not labelling OS software.
>
Maybe you misread it. According to the license terms, "AUTHORIZED
GOODS/SERVICES", including software, do require a license.

Thanks

Bruce



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Re: Statement that all of Debian needs to be Free?

[Don Armstrong]

On Fri, 17 Jun 2005, Florian Weimer wrote:
> * Dylan Thurston:
> > I'm surprised that someone thinks that there's any controversy on this
> > point.  As I understand it, the current situation is that, with the
> > release of sarge, everything in Debian should be DFSG free, including
> > programs, documentation, and miscellaneous files (as in this case), as
> > well as everything else, with the sole exception of license files.  Is
> > my summary correct?
> 
> Artwork seems to be exempt from the need to provide source code,
> even if the rendition shipped by Debian is not the version that is
> most amenable to modification.

While it may be possible to construct an argument that artwork is
exempt from the source requirement,[1] it is in the best interest of
our users (and quite definetly the maintainers of the package in
question) to have it available, even if it is not actually included in
the tar.gz due to size constraints.

Assume that it is required, and do your best to get the most prefered
form for modification that is theoretically possible to be distributed
digitally[2] for everything present in the package made available.
[There's just no need to remove a package that doesn't contain it or
have it available at this juncture in time.]


Don Armstrong

1: I personally haven't been convinced by one of these arguments, but
my views on these matters are rather well known.
2: This is just an attempt to forestall people who think that "the
prefered form for modification" means that we should be distributing
VHS tapes and voice actors.
-- 
Those who begin coercive elimination of dissent soon find themselves
exterminating dissenters. Compulsory unification of opinion achieves
only the unanimity of the graveyard.
 -- Justice Roberts in 319 U.S. 624 (1943)

http://www.donarmstrong.com  http://rzlab.ucr.edu


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Re: Linux mark extortion

[Raul Miller]

On 6/17/05, Bruce Perens <[EMAIL PROTECTED]> wrote:
> The userlinux project has been approached by the Linux Mark Institute
> with a demand for money in order to make use of the "Linux" trademark.
> Said demand would also apply to the Debian project. I believe their
> terms to be non-DFSG-compliant. See http://www.linuxmark.org/ . Debian
> has made historicial use of the mark GNU/Linux and has a right to
> continue to do so.

Reading the LMI site, they're only requiring a license on
uses of Linux which are not labelling OS software.  License
requirements which have nothing to do with software aren't
really within the scope of the DFSG.

Perhaps they also require some derivative works to not be named
Linux, but DFSG #4 seems to allow that.

I don't know enough about the userlinux project to know why they 
should be required to pay money -- perhaps it's because the 
project name includes "linux", or perhaps it's because they
claim to offer professional Linux certification, or perhaps there
are other additional reasons.  But I can't think of anything 
within Debian which would require us, or our users, to pay money.

Could you explain in more detail why this you expect them to
cause problems for Debian, or the free software community?

Thanks,

-- 
Raul

Re: Linux mark extortion

[Michael K. Edwards]

On 6/17/05, Florian Weimer <[EMAIL PROTECTED]> wrote:
> > I'm not entirely sure that what Debian does wouldn't fall under the
> > "descriptive use" concept.  "Debian GNU/Linux" is more like "Debian for
> > GNU/Linux" than "DebianLinux".
> 
> I don't think anybody knows how trademark law applies in the context
> of goods which are expected to be shared freely.  What is descriptive
> and what is not is extremely murky.

No more so in the case of the GPL than in any other use in commerce. 
See Planetary Motion v. Techplosion.  BSD/MIT "licenses" may be
another story, since they aren't proper offers of bilateral contract;
but the products to which they apply tend to provide other grounds for
findings of "use in commerce".

Cheers,
- Michael
(IANAL, TINLA)

Re: Linux mark extortion

[Michael K. Edwards]

On 6/17/05, Bruce Perens <[EMAIL PROTECTED]> wrote:
> The userlinux project has been approached by the Linux Mark Institute
> with a demand for money in order to make use of the "Linux" trademark.
> Said demand would also apply to the Debian project. I believe their
> terms to be non-DFSG-compliant. See http://www.linuxmark.org/ . Debian
> has made historicial use of the mark GNU/Linux and has a right to
> continue to do so.

I seem to recall saying about six months ago that there was quite a
storm brewing around open source trademarks.  Looks like the storm has
struck.

It's probably going too far to say that Debian has a "right" to
continue using the trademark.  I think there's a case that the
trademark has passed into common use by now for lack of diligence in
enforcement, but it's not open-and shut.

It's also clear that anyone, including Debian, can use the trademark
descriptively even when they engage in rather intrusive re-packaging
(in the US, under a Coty v. Prestonettes type of standard) -- as long
as they haven't accepted terms to the contrary at some point in the
past.  That's why, the last time I engaged with the Mozilla
Firefox/Thunderbird debate, I arrived at the position that a handshake
deal with MoFo (in which they unilaterally declare that they won't
attempt to withhold the trademarks under certain circumstances, and
Debian keeps using them descriptively) was a better outcome for both
sides than a trademark license as such.

As for the DFSG and trademarks: it will surprise no one that I don't
buy into a myopic focus on copyright, and that I am of the opinion
that active attempts to enforce the Linux trademark on people who are
not rather blatantly abusing it would render packages marketed under
the Linux mark non-DFSG-free.  But there's a wide margin between
"having the word 'Linux' sprinkled all over the place" and "marketed
under the Linux mark".

If UserLinux is trying to register and use in commerce a mark which
contains the substring Linux, then that's a bit different from the
descriptive label "Debian GNU/Linux".  A failure to seek an
appropriate return for the registration and use of a derivative
trademark would be strong evidence of a failure to defend the mark at
all.  If it were me, I'd be going after Red Hat and Montavista instead
of (or at the same time as) UserLinux, given their (IMHO) abuses of
trademark and vendor lock-in tricks respectively (what kind of jerk
capitalizes kernel APIs at random?); but that's up to the trademark
holder, I guess.

Cheers,
- Michael
(IANADD, IANAL, TINLA)

Re: GPL & Possible Derivative Work

[Michael K. Edwards]

On 6/17/05, Bruce Perens <[EMAIL PROTECTED]> wrote:
> Clean-room is an excellent strategy for avoiding copyright infringement.
> It enables someone to write a functionally compatible program without
> having seen the original. In an infringement case, it makes it entirely
> plausable to the court that the writer never saw the original
> implementation and was working only from the functional description.
> 
> I'm not clear why you didn't consider that.

Plausible isn't much help here.  Courts mostly only ask "is it
plausible that the resemblances are coincidental" when evaluating
claims of copying of non-literal elements from a rejected screenplay,
film scenario, creature sketch, etc. into a fictional work (such as a
movie) made later.  That sort of "constructive availability" test can
weaken a claim of infringement at the factual copying stage, but
usually only if it's demonstrably improbable that the later author
even knew what was in the work alleged to have been copied.

When there's no question that the new work was written with knowledge
of the original's existence and general content, all that a
"clean-room" technique can do is help substantiate the defense that
certain non-literal similarities are a matter of engineering necessity
in the course of a Computer Associates v. Altai type
abstraction-filtration-comparison test.  It is my impression that
(under US law) literal similarities are handled the same whether or
not they went through a "specification" stage, and are generally OK
only when they are demonstrably inseparable from ideas, methods of
operation, or compatibility requirements.  I cite various examples
below.

Note however that anti-reverse-engineering clauses are enforceable
(through a breach of contract claim), at least in negotiated
contracts, at least in some circuits; compare Bowers v. Baystate at
http://caselaw.lp.findlaw.com/data2/circs/Fed/011108v2.html .  Note
that in that case the appeals court upheld the district court judge's
omission of damages for copyright infringement from the final
reckoning, on the grounds that awarding damages for both breach of the
anti-reverse-engineering clause and copyright infringement would
constitute double recovery.

Cheers,
- Michael
(IANAL, TINLA)

As far as copyright is concerned, reverse engineering is reliably a
protected fair use in the US, except in the rare case (like Atari v.
Nintendo) in which an otherwise successful defense of fair use for
reverse engineering purposes is weakened by skulduggery such as fraud
on the copyright office.  And even in that case, the court ruled that
the actual quantity of literal copying exceeded engineering necessity.
 The criterion for copyright infringement in a final product is the
amount of copied material and the extent to which affirmative defenses
like copyright license and fair use apply to the product itself, not
to the process by which it was written.

Reverse engineering does frequently come up in cases where copyright
infringement is among the claims; see, for instance, Sony v. Connectix
(in which Connectix successfully justified its extensive use of the
Sony BIOS in the course of creating its PlayStation Emulator, partly
because Sony didn't claim to have found actual copying into the
emulator's final form) and Alcatel v. DGI (the one at
http://laws.findlaw.com/5th/9711339cv0v2.html ; there's a whole
DSC/Alcatel saga), in which the entire gamut of causes of action came
up except for claims of literal copying into DGI's product.  But
"improper means" of reverse engineering are generally a trade secret
consideration, with little effect on the evidence for copyright
infringement.

See also Bateman v. Mnemonics (at
http://www.law.emory.edu/11circuit/mar96/93-3234.ma2.html ; FindLaw's
copy appears to be mangled).  The Bateman court vacated and remanded
the district court's judgment that copyright infringement had
occurred, partly because the jury had not been properly instructed
that compatibility requirements may justify literal copying.  The
Eleventh Circuit said that it would be "an incorrect statement of the
law that interface specifications are not copyrightable as a matter of
law" but did "join [the 9th, 2nd, and 5th] circuits in finding that
external considerations such as compatibility may negate a finding of
infringement."

The Bateman court's ruling was not long after Lotus v. Borland was
affirmed by an equally divided court, and other circuits weren't in a
big hurry to follow the First as far as "not copyrightable as a matter
of law".  However, the Sixth Circuit went very nearly this far in the
recent Lexmark case, writing (in the course of reversing the district
court's ruling): "When a work itself constitutes merely an idea,
process or method of operation, or when any discernible expression is
inseparable from the idea itself, or when external factors dictate the
form of expression, copyright protection does not extend to the work."
 It has been reported that the Supreme Court denied ce

Re: Bug#207932: Statement that all of Debian needs to be Free?

[Jérôme Marant]

Glenn Maynard <[EMAIL PROTECTED]> writes:

>> etc/{CENSORSHIP,copying.paper,INTERVIEW,LINUX-GNU,THE-GNU-PROJECT,WHY-FREE}
>
> only "copying.paper" sounds like a license; the rest are simply documents,
> which must be DFSG-free to be in Debian.  This is not a matter of
> controversy, or even significant disagreement; SC2004-003 made this
> explicitly clear.  Please remove these non-free documents; the grace
> period allowed by SC2004-004 expired with the release of sarge.

They are out of the scope of the DFSG. They are neither programs nor
documentation: they are speeches and articles which are logically
non modifiable without the consent of their author.

Whether they are around or not is irrelevant to the freeness of Emacs.

-- 
Jérôme Marant

Re: Linux mark extortion

[Glenn Maynard]

On Fri, Jun 17, 2005 at 02:36:52PM -0400, Stephen Frost wrote:
> I don't see DFSG coming into this at all and, no, I don't think we need
> to run around and remove the word "Linux" from the entire distro or some
> such nonsense.

Maybe so; it's still an open question how the DFSG deals with trademarks.

That doesn't mean it's not a problem that affects Debian and its users
that's worth examining, though.  Looking at that site, my impression is
insult: "protect" me from "unauthorized" use?  There's never been any
confusion about the word "Linux"; the whole concept is ridiculous.

The only reason I heard why Linus held the "Linux" trademark in the first
place was to prevent other people from doing so, and making unreasonable
demands with it (such as preventing "unauthorized use"); they should now
simply let the trademark go, by not enforcing it.

(I question the productivity of starting a conversation about this using
the word "extortion", though.)

-- 
Glenn Maynard


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Re: Statement that all of Debian needs to be Free?

[Glenn Maynard]

On Fri, Jun 17, 2005 at 06:04:20PM +0200, Dylan Thurston wrote:
> I'm surprised that someone thinks that there's any controversy on this
> point.  As I understand it, the current situation is that, with the
> release of sarge, everything in Debian should be DFSG free, including
> programs, documentation, and miscellaneous files (as in this case), as
> well as everything else, with the sole exception of license files.  Is
> my summary correct?  The maintainer apparently wants a concensus from
> debian-legal on this (in a separate message to the bug).

You're correct.

FYI, determining which materials are covered by the DFSG isn't a matter
decided by debian-legal (though I don't object to discussing it here),
but by the Social Contract.

> Subject: Bug#207932: Bug #207932 - emacs21: Includes non-free documents
> Reply-To: [EMAIL PROTECTED], [EMAIL PROTECTED]
> From: [EMAIL PROTECTED]
> To: [EMAIL PROTECTED]
> Cc: debian-legal@lists.debian.org
> 
> Followup for :
> http://bugs.debian.org/207932
> 
> Thanks you for helping debian tracks licencing issues. Though this
> bug looks like an extension of the GFDL issue to some non
> documentation texts. This have not been agreed upon by
> debian-legal (in fact as far as i know "licences" and such
> documents have been explicitely exclude from the need to be DSFG
> free ).

As Dylan mentioned above, the only files which are excluded from the
requirement to be Free are (by necessity) license texts.  Of the
documents listed in the original bug:

> etc/{CENSORSHIP,copying.paper,INTERVIEW,LINUX-GNU,THE-GNU-PROJECT,WHY-FREE}

only "copying.paper" sounds like a license; the rest are simply documents,
which must be DFSG-free to be in Debian.  This is not a matter of
controversy, or even significant disagreement; SC2004-003 made this
explicitly clear.  Please remove these non-free documents; the grace
period allowed by SC2004-004 expired with the release of sarge.

-- 
Glenn Maynard


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Re: Statement that all of Debian needs to be Free?

[Florian Weimer]

* Dylan Thurston:

> I'm surprised that someone thinks that there's any controversy on this
> point.  As I understand it, the current situation is that, with the
> release of sarge, everything in Debian should be DFSG free, including
> programs, documentation, and miscellaneous files (as in this case), as
> well as everything else, with the sole exception of license files.  Is
> my summary correct?

Artwork seems to be exempt from the need to provide source code, even
if the rendition shipped by Debian is not the version that is most
amenable to modification.

The GFDL situation is even more unclear because there should be some
kind of announcement soon, and opinions about the GFDL as-is vary
widely (from "minor impracticalities" to "fundamental issues").

And keep in mind that the main/non-free distinction becomes less
meaningful with each controversial package which is moved from main to
non-free because it lures more users to the non-free side. 8-)


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Re: Linux mark extortion

[Florian Weimer]

* Stephen Frost:

> I'm not entirely sure that what Debian does wouldn't fall under the
> "descriptive use" concept.  "Debian GNU/Linux" is more like "Debian for
> GNU/Linux" than "DebianLinux".

I don't think anybody knows how trademark law applies in the context
of goods which are expected to be shared freely.  What is descriptive
and what is not is extremely murky.

The approach which looks most reasonable to me is to apply for
trademark protection in as meny jurisdictions as possible, don't
enforce them, and what as the trademark dilutes.  As a result, nobody
(including the original registrant) can claim exclusive ownership.
True, somebody might call their detergent "Linux", but I fail to see
how anybody could exploit the resulting confusion on the long run.

In most jurisdictions, you have to enforce and license trademarks,
otherwise they dilute.  As a result, I don't think there is something
like a free trademark license, unless it implicitly or explicitly
promotes dilution (e.g. each licensee receives the right to sublicense
the trademark).

> I don't see DFSG coming into this at all and, no, I don't think we need
> to run around and remove the word "Linux" from the entire distro or some
> such nonsense.

We could use LiGNUx als a fallback.  (Just kidding.)

Sometimes the ways in which history repeats itself are truly bizarre.


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Re: OpenSolaris related licences

[Eric Boutilier]

On Fri, 17 Jun 2005, Andrew M.A. Cater wrote:
> On Thu, Jun 16, 2005 at 02:05:40PM +0200, Florian Weimer wrote:
> > * Drew Scott Daniels:
> >
> > > I think the first objection that I have is that there doesn't seem to be
> > > source code to the Sun Studio 10 compiler (I may be wrong though)
> >
> > I would be really surprised if Sun released their compilers together
> > with OpenSolaris.  Sun's compilers haven't been part of Solaris for
> > ages, they had to be licensed separately.
> >
> I've just spent a while downloading OpenSolaris. The free compiler release
> is licensed to you personally / only on terms of using it with OpenSolaris
> as far as I can see...

Yes, that's correct.

For quick access to details about the free compilers program, here's
a nice list of links put together by a Sun blogger.


http://blogs.sun.com/roller/page/dlindt/20050614#sun_studio_10_and_opensolaris

Eric

--
Eric Boutilier
Open Source Software
Sun Microsystems


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Re: GPL & Possible Derivative Work

[Bruce Perens]

Michael K. Edwards wrote:

>If you don't have any contractual relationship to the vendor or any
>information obtained through privileged access, then you don't have to
>worry about trade secrets, just copyright.
>
Michael,

Clean-room is an excellent strategy for avoiding copyright infringement.
It enables someone to write a functionally compatible program without
having seen the original. In an infringement case, it makes it entirely
plausable to the court that the writer never saw the original
implementation and was working only from the functional description.

I'm not clear why you didn't consider that.

Thanks

Bruce


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Re: GPL & Possible Derivative Work

[Michael K. Edwards]

On 6/17/05, Andrew Suffield <[EMAIL PROTECTED]> wrote:
> On Thu, Jun 16, 2005 at 04:42:00PM -0400, Mike wrote:
> > Arnoud Engelfriet wrote:
> > >Usually the advice is to write your own code based on descriptive
> > >information about the protocol, without looking at the original
> > >implementation. In other words, use the RFC, not the code.
> > >This avoids accusations about nonliteral copying.
> >
> > Too bad it's a closed source protocol. But I will give reverse
> > engineering it a try it might be interesting. It's a tiny protocol I
> > might just be able to figure it out. There might even be some unofficial
> > docs on the web somewhere.
> 
> The best way to break derivation for stuff like this is to
> reverse-engineer it and write a description of the protocol. Then
> implement your own version using *only* the description. Never touch
> both at once.
> 
> To be really robust, you must have different people doing the two
> parts, but even with only one, following the discipline gives you a
> solid defence against accusations of copying.

This sort of reverse engineering to specification, followed by
cleanroom implementation, is primarily used to defend against
accusations of misappropriation of trade secrets.  The reverse
engineering team is vetted to make sure that they have had no
privileged access to the target's knowledge going in, and the process
is documented to demonstrate that it followed procedures available to
any competitor.  Hunting "unofficial" docs on the web is exactly the
kind of thing that you shouldn't be doing if the source code and
protocol are trade secrets.

If you don't have any contractual relationship to the vendor or any
information obtained through privileged access, then you don't have to
worry about trade secrets, just copyright.  If the implementation is
closed source, and you're cloning its function, the burden is still on
you to demonstrate that you copied only what you absolutely had to. 
Independently arriving at a very similar solution to the same problem
is not a very good defense, since you are obviously reverse
engineering a specific implementation.

If you are in a position to compare the two by decompiling the
original, you are obliged to make a reasonable effort to do so (in for
a dime, in for a dollar) and to diverge from the expressive content of
the original in pretty much every way possible while retaining
interoperability.  See, for instance, the recent Lexmark case in the
Sixth Circuit, in which Static Control was permitted to copy the
entire Toner Loading Program verbatim, but only because they
demonstrated that its cryptographic checksum had to match in order to
interoperate.

The dissent in Lexmark is very well argued, and covers the history of
reverse engineering cases at appellate level in the US.  Judge Feikens
felt that Static Control should have been obliged to work even harder
at the reverse engineering, spot a flag that could be used to turn off
the checksum operation, flip that flag and write their own Toner
Loading Program.  That view did not prevail, but it's an indication of
the degree of thoroughness a judge expects from a reverse engineering
project's avoidance of unnecessary literal copying.

When you are talking about published source code, there is no trade
secret to be misappropriated.  You can't really claim not to have had
access to the original source code, and there's no evidence that you
didn't read the source code other than your own word.  The only
purpose of reverse engineering under those circumstances is to help
demonstrate that, where your code resembles the original, that
reflects functional necessity rather than plagiarism.

It's complete folly not to look at openly published source code if
you're trying to clone its function without infringing copyright.  If
it comes to a court battle, you have to be able to demonstrate that
every bit of overlapping expressive content is a matter of engineering
necessity.  Publishing the source code of the original raises the
burden of proof on the cloner, since it facilitates a good-faith
effort on the cloner's part to avoid plagiarism.

Cheers,
- Michael
(IANAL, TINLA)

Re: Linux mark extortion

[Stephen Frost]

* Bruce Perens ([EMAIL PROTECTED]) wrote:
> The userlinux project has been approached by the Linux Mark Institute
> with a demand for money in order to make use of the "Linux" trademark.
> Said demand would also apply to the Debian project. I believe their
> terms to be non-DFSG-compliant. See http://www.linuxmark.org/ . Debian
> has made historicial use of the mark GNU/Linux and has a right to
> continue to do so.

I'm not entirely sure that what Debian does wouldn't fall under the
"descriptive use" concept.  "Debian GNU/Linux" is more like "Debian for
GNU/Linux" than "DebianLinux".  Personally I couldn't care less about
removing "GNU/Linux" from the 'name' of the Debian product (not that I'm
entirely sure I'd even consider it part of the name, but whatever).
That would seem to alliviate this issue regardless.

Of course, other alternatives would be to ask if they'd let us have a
license without the costs, given that we're a not-for-profit, etc.

I don't see DFSG coming into this at all and, no, I don't think we need
to run around and remove the word "Linux" from the entire distro or some
such nonsense.

Thanks,

Stephen


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Description: Digital signature

Linux mark extortion

[Bruce Perens]

The userlinux project has been approached by the Linux Mark Institute
with a demand for money in order to make use of the "Linux" trademark.
Said demand would also apply to the Debian project. I believe their
terms to be non-DFSG-compliant. See http://www.linuxmark.org/ . Debian
has made historicial use of the mark GNU/Linux and has a right to
continue to do so.

Thanks

Bruce


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New "Linux" mark policy is a problem for Debian.

[Bruce Perens]

I posted this earlier but it seems to have been blocked. LMI has a new
policy for the "Linux" trademark that is going to be a problem for
Debian. See http://www.linuxmark.org/ .

Thanks

Bruce


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Statement that all of Debian needs to be Free?

[Dylan Thurston]

Hello,

I'm surprised that someone thinks that there's any controversy on this
point.  As I understand it, the current situation is that, with the
release of sarge, everything in Debian should be DFSG free, including
programs, documentation, and miscellaneous files (as in this case), as
well as everything else, with the sole exception of license files.  Is
my summary correct?  The maintainer apparently wants a concensus from
debian-legal on this (in a separate message to the bug).

(Summary of the bug: several of the files in the 'etc' directory of
the emacs21 source have a license that explicitly forbids
modification.  These files are entirely non-functional.)

Thanks,
Dylan Thurston

- Forwarded message from [EMAIL PROTECTED] -

Subject: Bug#207932: Bug #207932 - emacs21: Includes non-free documents
Reply-To: [EMAIL PROTECTED], [EMAIL PROTECTED]
From: [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Cc: debian-legal@lists.debian.org

Followup for :
http://bugs.debian.org/207932

Thanks you for helping debian tracks licencing issues. Though this
bug looks like an extension of the GFDL issue to some non
documentation texts. This have not been agreed upon by
debian-legal (in fact as far as i know "licences" and such
documents have been explicitely exclude from the need to be DSFG
free ).


Again thank you for taking part in this time consuming task.
Please ask on debian-legal when you encounter new types of
documents not being explicitely stated in previous consensus
(even if closely related).


By the way it is not a bad thing to track those "not agreed upon" documents 
licence issues. Though please keep the talks about them on
debian-legal. Maintainers do another jobs which is fixing bugs
and making debian easier to use. Most of them don't want to hours
looking after advanced legal issues. That s why debian-legal
exists :)

By the way even if a consensus is reached on debian-legal it
would be helpfull to make a separate listing of those documents
and discuss it with the release team and debian-devel. But please
not the other way around. I would call it  hijacking debian-legal.

I guess this bug can be closed as "out of topic" for the bts.

Regards
Alban



- End forwarded message -


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Re: Bug #207932 - emacs21: Includes non-free documents

[browaeys . alban]

Followup for :
http://bugs.debian.org/207932

Thanks you for helping debian tracks licencing issues. Though this
bug looks like an extension of the GFDL issue to some non
documentation texts. This have not been agreed upon by
debian-legal (in fact as far as i know "licences" and such
documents have been explicitely exclude from the need to be DSFG
free ).


Again thank you for taking part in this time consuming task.
Please ask on debian-legal when you encounter new types of
documents not being explicitely stated in previous consensus
(even if closely related).


By the way it is not a bad thing to track those "not agreed upon" documents 
licence issues. Though please keep the talks about them on
debian-legal. Maintainers do another jobs which is fixing bugs
and making debian easier to use. Most of them don't want to hours
looking after advanced legal issues. That s why debian-legal
exists :)

By the way even if a consensus is reached on debian-legal it
would be helpfull to make a separate listing of those documents
and discuss it with the release team and debian-devel. But please
not the other way around. I would call it  hijacking debian-legal.

I guess this bug can be closed as "out of topic" for the bts.

Regards
Alban


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Re: Is this license DFSG free?

[Claus Färber]

Sean Kellogg <[EMAIL PROTECTED]> schrieb/wrote:
> The setence is ambigous if broken down sufficiently.  However, if the
> Anthony's language is sufficient, it strikes me that the GPL is way
> too verbose.  All you would need the GPL to say to require such a
> limited changelog would be "provide a notice of the date of any
> change" without reference to "you."

On the other hand, the GPL does not define how exactly one has to  
describe one's identity. Is a not-widely-known alias enough? Is the full  
name enough? Do you have to provide a street, phone or email address?

Claus
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Re: GPL & Possible Derivative Work

[Andrew Suffield]

On Thu, Jun 16, 2005 at 04:42:00PM -0400, Mike wrote:
> Arnoud Engelfriet wrote:
> >Usually the advice is to write your own code based on descriptive
> >information about the protocol, without looking at the original
> >implementation. In other words, use the RFC, not the code.
> >This avoids accusations about nonliteral copying.
> 
> Too bad it's a closed source protocol. But I will give reverse 
> engineering it a try it might be interesting. It's a tiny protocol I 
> might just be able to figure it out. There might even be some unofficial 
> docs on the web somewhere.

The best way to break derivation for stuff like this is to
reverse-engineer it and write a description of the protocol. Then
implement your own version using *only* the description. Never touch
both at once.

To be really robust, you must have different people doing the two
parts, but even with only one, following the discipline gives you a
solid defence against accusations of copying.

-- 
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 : :' :  http://www.debian.org/ |
 `. `'  |
   `- -><-  |


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