Re: Please Join SPI (was Re: The Sky is Not Falling)
Just so. It also isn't just a matter of payment. It would be wonderful if the Internet and the things that happened on it were not subject to normal human law but that just isn't the case. Ultimately, everything that Debian does is done by people and those people are subject to the laws of their nations. If Debianers try to make the law go away by ignoring it then the inevitable result will be some tragic miscarriage of justice that Debian is grossly unprepared for. Cryptography law (BXA) is certainly a major concern. The fact that SPI is a US corporation is actually a convenience. The United States has unparralleled resources for making its will felt anywhere in the world. Solving legal problems here is probably a good first step towards solving them in many other places. Sad, but true. (I'm going to continue this kind of conversation on debian-project) On Thursday 06 May 2004 03:41 am, Tomas Pospisek's Mailing Lists wrote: I guess someone needs to pay for some of Debian's infrastructure, assumed that no sponsor would be giving it to Debian for free. That needs to be *some* entity. The fact that it's an US one is secondary. -- Ean Schuessler, CTO Brainfood, Inc. http://www.brainfood.com
On the uselessness of Debian trademarks.
I've been having some discussions with Chris Rourk (SPI counsel) lately about Debian trademarks and his points are worth discussing. His opinion is that Debian would be best served by abandoning its marks and purposefully making the term Debian generic. There are some clear benefits. Programmers (like myself) try to map our perceptions of systems we know and love onto others that have little to do with computation. Law is probably one of the worst. We like to think of trademark law as something like firewall rules where we can say this is ok, this isn't, except in this situation and so forth. If you look at real trademarks this is not the case. For instance, take Coke or Star Wars or anything of that caliber. You will see, quite consistently, that the owners of these marks show absolutely no leniency in enforcement. You can be assured that making Coke t-shirts without permission will meet serious legal resistance. This enforcement is the only way that a trademark can truly be held. The owner must be the universal and final arbitrator of use and must show that use is carefully monitored and enforced. With the Debian trademark we want use that is almost entirely unenforced except for a few particular (and somewhat poorly defined) situations. This policy will put us in a difficult position if we have to litigate. The defendant will put forth the argument that there is no clear definition of proper use and claim that our mark is generic. Our only alternative is to religiously shut down everyone who is using the word Debian without our explicit permission. That isn't very Debian. Why not just cut to the chase? I'm not sure if Chris is right, but I see the logic in his reasoning. If anyone can put this email in front of any attorneys, I would be very curious to hear their thoughts. E -- Ean Schuessler, CTO Brainfood, Inc. http://www.brainfood.com
RE: Please Join SPI (was Re: The Sky is Not Falling)
-Original Message- From: Ean Schuessler [mailto:[EMAIL PROTECTED] Sent: Friday, 7 May 2004 4:33 PM Just so. It also isn't just a matter of payment. It would be wonderful if the Internet and the things that happened on it were not subject to normal human law but that just isn't the case. Ultimately, everything that Debian does is done by people and those people are subject to the laws of their nations. Okay, fair enough. It makes sense then that Debian Inc. (aka SPI) needs to exist. What does not make sense to me is why every single Debian developer needs to be a formal member of that legal entity. Let me explain what I mean. I am a member of the Debian Project, I am a Debian developer. I am not the DPL. I entrust that leadership role to Martin. I am not the release manager. I entrust that role to Anthony. I am not an ftp master. I entrust that role to Michael and the others. I am not the DAM, I entrust that role to James. I am not on the security team. I entrust that role to Martin and others. There may be a variety of reasons why I take on none of these these (though I could choose to be a part of any of them), a mixture of time, interest and competency. I do what I can to make Debian and the world a better place. So why suddenly is SPI, the Debian legal corporation, such a different matter? Why is it that you are telling me *I* must be a part of SPI myself, rather than entrusting it to those who can manage it, as I do for every other part of Debian? What makes SPI any more important than any other of Debian's facets or activities? Drew [EMAIL PROTECTED] DISCLAIMER: The information in this message is confidential and may be legally privileged. It is intended solely for the addressee. Access to this message by anyone else is unauthorised. If you are not the intended recipient, any disclosure, copying, or distribution of the message, or any action or omission taken by you in reliance on it, is prohibited and may be unlawful. Please immediately contact the sender if you have received this message in error. Thank you.
Re: On the uselessness of Debian trademarks.
On 2004-05-07 07:31:27 +0100 Ean Schuessler [EMAIL PROTECTED] wrote: With the Debian trademark we want use that is almost entirely unenforced except for a few particular (and somewhat poorly defined) situations. The only well-defined situation I can see at the moment is when someone attempts to claim debian association, backing or endorsement fraudulently. I believe that is covered adequately by other laws everywhere where we could enforce it. Is that correct? [...] Our only alternative is to religiously shut down everyone who is using the word Debian without our explicit permission. That isn't very Debian. Why not just cut to the chase? Not only is it not very Debian, but accurate use of the Debian mark to refer to our Debian doesn't look like something we can stop with trademarking in the UK: Nothing in the preceding provisions of this section shall be construed as preventing the use of a registered trade mark by any person for the purpose of identifying goods or services as those of the proprietor or a licensee. (Trade Marks Act 1994 s.10(6), readable at http://www.bailii.org/uk/legis/num_act/tma1994121/s10.html amongst others). There are caveats about honest practices, but that's the basic. For example, if someone claims to sell Debian for Desktops which includes the Debian distribution and their own desktop setup (and possibly packages), I'm not sure that we could do anything to stop them. We could use copyright licences to police the trademark a bit more (such as the logo licences do), but that seems pretty clearly non-free. I'm not sure if Chris is right, but I see the logic in his reasoning. If anyone can put this email in front of any attorneys, I would be very curious to hear their thoughts. I've suggested it to a few. I hope some reply. -- MJR/slef My Opinion Only and possibly not of any group I know. http://mjr.towers.org.uk/ http://www.ttllp.co.uk/ for creative copyleft computing
Re: On the uselessness of Debian trademarks.
* MJ Ray ([EMAIL PROTECTED]) wrote: On 2004-05-07 07:31:27 +0100 Ean Schuessler [EMAIL PROTECTED] wrote: With the Debian trademark we want use that is almost entirely unenforced except for a few particular (and somewhat poorly defined) situations. The only well-defined situation I can see at the moment is when someone attempts to claim debian association, backing or endorsement fraudulently. I believe that is covered adequately by other laws everywhere where we could enforce it. Is that correct? Uh, or they use the Debian trademark for something that's not Debian at all.. That's not necessairly claiming it as backing or endorsement from Debian. Not only is it not very Debian, but accurate use of the Debian mark to refer to our Debian doesn't look like something we can stop with trademarking in the UK: I don't get it. Doesn't this mean, also, that in the UK people *could* sell shirts with the Coke logo on them? In which case it would seem to me that the reasons above for having a trademark in the UK would be perfectly legit and very reasonable and enforceable, and their intended use? Or is the problem with the Coke logo really with it being copyrighted, in which case having the trademark for the reasons above and the copyright with a different license than the Coke folks do would seem perfectly reasonable and, again, seemingly enforcable unless there's some reason you can't enforce a trademark unless you're very strict with the copyright on it? The two would seem like seperate issues to me. Stephen signature.asc Description: Digital signature
Re: On the uselessness of Debian trademarks.
On 2004-05-07 14:20:37 +0100 Stephen Frost [EMAIL PROTECTED] wrote: Uh, or they use the Debian trademark for something that's not Debian at all.. That's not necessairly claiming it as backing or endorsement from Debian. If it's software, it seems illegal anyway. If it's not software, it's probably outside the scope of debian's registered trademark. Not only is it not very Debian, but accurate use of the Debian mark to refer to our Debian doesn't look like something we can stop with trademarking in the UK: I don't get it. Doesn't this mean, also, that in the UK people *could* sell shirts with the Coke logo on them? If it is just the logo, I think it could be argued that the shirts were represented as a product from the registrant, which may be blockable depending on the registration details. It would be difficult to use trademark law to stop you honestly selling shirts with a picture of a Coke can or bottle on it, as I understand it. I'm not a lawyer and I think you should consult one before trying this at home, though. Do you support trying to use the debian mark to crack down on sellers of shirts without contracts with SPI? In which case it would seem to me that the reasons above for having a trademark in the UK would be perfectly legit and very reasonable and enforceable, and their intended use? I don't understand how this follows from the trademark law not preventing sale of Coke-related shirts. Or is the problem with the Coke logo really with it being copyrighted, I believe this is a problem and part of the reason why the Coke logo design changes periodically. The coke photo shirt mentioned above may infringe copyright, depending on its purpose. in which case having the trademark for the reasons above and the copyright with a different license than the Coke folks do would seem perfectly reasonable and, again, seemingly enforcable unless there's some reason you can't enforce a trademark unless you're very strict with the copyright on it? The two would seem like seperate issues to me. They are almost completely different, which is why using copyright licence conditions to enforce trademarks usually results in a non-free licence. That's all I was noting. -- MJR/slef My Opinion Only and possibly not of any group I know. http://mjr.towers.org.uk/ http://www.ttllp.co.uk/ for creative copyleft computing
Re: On the uselessness of Debian trademarks.
* MJ Ray ([EMAIL PROTECTED]) wrote: On 2004-05-07 14:20:37 +0100 Stephen Frost [EMAIL PROTECTED] wrote: Uh, or they use the Debian trademark for something that's not Debian at all.. That's not necessairly claiming it as backing or endorsement from Debian. If it's software, it seems illegal anyway. If it's not software, it's probably outside the scope of debian's registered trademark. Uh, it'd only be illegal if we have a trademark on Debian which made is illegal. If we don't then I don't think we'd have a leg to stand on there. I don't get it. Doesn't this mean, also, that in the UK people *could* sell shirts with the Coke logo on them? If it is just the logo, I think it could be argued that the shirts were represented as a product from the registrant, which may be blockable depending on the registration details. It would be difficult to use trademark law to stop you honestly selling shirts with a picture of a Coke can or bottle on it, as I understand it. I'm not a lawyer and I think you should consult one before trying this at home, though. Well, that's really my question. It seems likely that Coke would find something to bitch about in that case, but I'm not really sure. Do you support trying to use the debian mark to crack down on sellers of shirts without contracts with SPI? Erm, not if they're using the mark to mean Debian. Possibly if they're claiming the mark means something else, which would kind of be the point. It sounds to me like what you're saying is *exactly* why we'd want a trademark, and why it *would* be enforcable even if we don't have a contract with everyone who sells Debian t-shirt's (which isn't something I'd want to see being required). In which case it would seem to me that the reasons above for having a trademark in the UK would be perfectly legit and very reasonable and enforceable, and their intended use? I don't understand how this follows from the trademark law not preventing sale of Coke-related shirts. The concern was that we have to enforce our trademark in all cases if we want to be able to keep it and enforce it in certain circumstances. This doesn't make sense if you can use the Coke trademark without Coke doing something about it if you don't have a contract with them. Or is the problem with the Coke logo really with it being copyrighted, I believe this is a problem and part of the reason why the Coke logo design changes periodically. The coke photo shirt mentioned above may infringe copyright, depending on its purpose. Alright, that's fine, we can stipulate the license under which the Debian logo is used. Having a generous license there should *not* detract from our ability to enforce the Debian trademark since trademark and copyright are seperate and distinct from each other. in which case having the trademark for the reasons above and the copyright with a different license than the Coke folks do would seem perfectly reasonable and, again, seemingly enforcable unless there's some reason you can't enforce a trademark unless you're very strict with the copyright on it? The two would seem like seperate issues to me. They are almost completely different, which is why using copyright licence conditions to enforce trademarks usually results in a non-free licence. That's all I was noting. This doesn't make sense. You shouldn't need copyright license conditions to enforce trademarks, that's the point of trademarks, they don't have the same limitiations on them as copyright does but they do have other requirements different from copyright in order to be legit. Therefore, we could have a generous copyright license *and* a trademark and still be able to enforce the trademark, which makes having the trademark worthwhile and a good idea in general. Stephen signature.asc Description: Digital signature
Re: On the uselessness of Debian trademarks.
Stephen Frost writes: * MJ Ray ([EMAIL PROTECTED]) wrote: Not only is it not very Debian, but accurate use of the Debian mark to refer to our Debian doesn't look like something we can stop with trademarking in the UK: I don't get it. Doesn't this mean, also, that in the UK people *could* sell shirts with the Coke logo on them? In which case it would seem to me that the reasons above for having a trademark in the UK would be perfectly legit and very reasonable and enforceable, and their intended use? I doubt it -- selling shirts would be a commercial purpose outside identifying goods or services as those of the proprietor or a licensee. I do not think it would even be safe to sell shirts that say Buy your Coke at Joe's Convenience Mart. Since you see income from selling the shirts, it could be argued as using the mark in commerce. Michael Poole
Re: On the uselessness of Debian trademarks.
On 2004-05-07 14:55:36 +0100 Stephen Frost [EMAIL PROTECTED] wrote: * MJ Ray ([EMAIL PROTECTED]) wrote: If it's software, it seems illegal anyway. If it's not software, it's probably outside the scope of debian's registered trademark. Uh, it'd only be illegal if we have a trademark on Debian which made is illegal. If we don't then I don't think we'd have a leg to stand on there. Maybe illegal is the wrong word. I believe we could still prosecute for passing off without a trademark? There is an identifiable group called debian with a presence in the UK, so one arguably cannot produce software called debian ... without their involvement or approval without causing confusion with this prior group. I'll need to look this up again, as it's common law not legislation, but it's the same reason that you cannot call your product MJ Ray's Moolie Grater if I produce moolie graters and that's not your one. Do you support trying to use the debian mark to crack down on sellers of shirts without contracts with SPI? Erm, not if they're using the mark to mean Debian. Possibly if they're claiming the mark means something else, which would kind of be the point. There is a popular debian/lesbian shirt in the UK, although I don't know what agreements exist between the seller and SPI. I think it's perfectly fair to have that, although maybe someone can argue this is using the mark to mean something else? Anyway, trying to stop this probably wouldn't work. If someone produces debian round silver drinks coasters with a hole shirts then there's nothing our project's trademark would do about it, so it sounds to me like you're demonstrating exactly why the trademark is useless. The concern was that we have to enforce our trademark in all cases if we want to be able to keep it and enforce it in certain circumstances. I believe that you have to defend it from infringing use in the US. I do not remember whether the same is true here. (I am not a lawyer, remember?) This doesn't make sense if you can use the Coke trademark without Coke doing something about it if you don't have a contract with them. As long as it is not infringing use of their trademark, they cannot touch you. Some debian developers seem ignorant about non-infringing uses of trademarks and some things they wish to prevent seem to be non-infringing uses IMO. Alright, that's fine, we can stipulate the license under which the Debian logo is used. Yes: I say MIT/X11-style now! Having a generous license there should *not* detract from our ability to enforce the Debian trademark since trademark and copyright are seperate and distinct from each other. I agree entirely with that. It's the reverse case (where you do write trademark enforcement into copyright licences, or sometimes go further than that and try to prevent non-infringing uses, as in the newer XFree86 licence) which causes non-free-ness of the copyright licence IMO. -- MJR/slef My Opinion Only and possibly not of any group I know. http://mjr.towers.org.uk/ http://www.ttllp.co.uk/ for creative copyleft computing
Re: Please Join SPI (was Re: The Sky is Not Falling)
On Fri, May 07, 2004 at 05:15:59PM +1000, Parsons, Drew wrote: Let me explain what I mean. I am a member of the Debian Project, I am a Debian developer. I am not the DPL. I entrust that leadership role to Martin. You vote (or can) for the DPL, and thus exercise oversight over that position. I am not the release manager. I entrust that role to Anthony. I am not an ftp master. I entrust that role to Michael and the others. I am not the DAM, I entrust that role to James. I am not on the security team. I entrust that role to Martin and others. Likewise, these positions are all ultimately accountable to the developers in one way or other. So while you do rightly delegate tasks to the DPL or others in a real sense, you also have a say in their selection, and if convinced that they are performing poorly, could run for the position yourself. Similarly with SPI. You could trust the financial management to the treasurer and general decision-making to the board. But you have a right (and some would say duty) to exercise oversight and make sure that the people you're comfortable with are the ones in those positions. So why suddenly is SPI, the Debian legal corporation, such a different matter? Why is it that you are telling me *I* must be a part of SPI myself, rather than entrusting it to those who can manage it, as I do for every other part of Debian? What makes SPI any more important than any other of Debian's facets or activities? I'm saying it's just as important. We had almost 500 people vote in each of the last two DPL elections. We had just over 100 vote in the last SPI board election and just over 50 in the one before that. If you consider it important to vote for the DPL -- even though you are happy with letting the eventual winner carry out tasks without you paying a great deal of daily attention to it -- why would it be automatically less important to vote for the SPI board or president? -- John
Re: On the uselessness of Debian trademarks.
* MJ Ray ([EMAIL PROTECTED]) wrote: Maybe illegal is the wrong word. I believe we could still prosecute for passing off without a trademark? There is an identifiable group called debian with a presence in the UK, so one arguably cannot produce software called debian ... without their involvement or approval without causing confusion with this prior group. I'll need to look this up again, as it's common law not legislation, but it's the same reason that you cannot call your product MJ Ray's Moolie Grater if I produce moolie graters and that's not your one. Erm, I guess I thought this was the specific reason for trademarks. Perhaps not, IANAL. If that's not the *reason* for having a trademark then I don't understand why *anyone* would have one, and clearly that can't be right because *lots* of people pay a fair bit for them, people who have really good lawyers. There is a popular debian/lesbian shirt in the UK, although I don't know what agreements exist between the seller and SPI. I think it's perfectly fair to have that, although maybe someone can argue this is using the mark to mean something else? Provided they're either using 'Debian' to mean the Debian software project we're a part of, or to mean something unrelated to software. I think that's right, anyway. :) Anyway, trying to stop this probably wouldn't work. If someone produces debian round silver drinks coasters with a hole shirts then there's nothing our project's trademark would do about it, so it sounds to me like you're demonstrating exactly why the trademark is useless. Sorry, I was meaning 'some other software product' which could cause confusion, which is what the trademark is intended to avoid. Clearly non-software Debian's auto shop kind of things would be fine, and wouldn't be avoided by having a trademark anyway. The concern was that we have to enforce our trademark in all cases if we want to be able to keep it and enforce it in certain circumstances. I believe that you have to defend it from infringing use in the US. I do not remember whether the same is true here. (I am not a lawyer, remember?) IANAL either, but you were commenting on it and so was I. Hopefully someone who *is*, or a paralegal or something, could comment on this and clear up the confusion. It's starting to sound like maybe you don't need trademarks at all in the UK, or that you don't have to defend them in the UK or something, but that does seem quite odd to me. This doesn't make sense if you can use the Coke trademark without Coke doing something about it if you don't have a contract with them. As long as it is not infringing use of their trademark, they cannot touch you. Some debian developers seem ignorant about non-infringing uses of trademarks and some things they wish to prevent seem to be non-infringing uses IMO. The only way to prevent non-infringing (against the trademark) uses would be to copyright and restrict the licensing on the logo itself, AIUI. I don't think this would be benefitial but I am curious as to what exactly they're trying to prevent that wouldn't be infringing trademark law. Alright, that's fine, we can stipulate the license under which the Debian logo is used. Yes: I say MIT/X11-style now! Haha. Personally, I don't particularly care. So long as we have it trademarked so that it can't be used to mean some other software product I don't see the issue of having someone use the Debian logo, or some derivative of it, on their car, home, shirt, webpage, whatever. Having a generous license there should *not* detract from our ability to enforce the Debian trademark since trademark and copyright are seperate and distinct from each other. I agree entirely with that. It's the reverse case (where you do write trademark enforcement into copyright licences, or sometimes go further than that and try to prevent non-infringing uses, as in the newer XFree86 licence) which causes non-free-ness of the copyright licence IMO. Well, I want to understand why people (who started this thread, I believe?) don't think we could enforce the trademark if it's under a generous copyright license. That's the base issue here, I think. Stephen signature.asc Description: Digital signature
Re: On the uselessness of Debian trademarks.
* Michael Poole ([EMAIL PROTECTED]) wrote: Stephen Frost writes: I don't get it. Doesn't this mean, also, that in the UK people *could* sell shirts with the Coke logo on them? In which case it would seem to me that the reasons above for having a trademark in the UK would be perfectly legit and very reasonable and enforceable, and their intended use? I doubt it -- selling shirts would be a commercial purpose outside identifying goods or services as those of the proprietor or a licensee. Alright, now I think we might be getting somewhere. So the issue here is that, because selling a t-shirt with a trademark on it is outside the scope of identifying goods [...] it must therefore be enforced in order to claim that we're enforcing the trademark and have the right to *keep* the trademark then. Given that's the case- do we actually need a *contract* with people using the trademark outside of identifying goods [...]? Attempting to find a more technical solution- would it be possible to notify people we find who use the trademark in a way we approve of outside of identifying goods [...] that we're cool with them using it and to track such uses in a database maintained by SPI? Doesn't seem to me like that'd be too much effort on our part, or onus on their part. Of course, we could say that we'd prefer if they could notify us so that we could review their use and approve it and add them to our database ahead of time. AIUI, that still doesn't require a restrictive *copyright* on the logo. It does mean we need to stipulate what appropriate uses on the trademark are, but if you modify the logo so that it doesn't look like the trademark anymore I don't think there's a reason that derivative work needs to be restricted due to the copyright (unless the author of the derived work wants to put some additional copyright restrictions on it, of course). Stephen signature.asc Description: Digital signature
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Re: On the uselessness of Debian trademarks.
On 2004-05-07 15:56:19 +0100 Stephen Frost [EMAIL PROTECTED] wrote: common law not legislation, but it's the same reason that you cannot call your product MJ Ray's Moolie Grater if I produce moolie graters and that's not your one. Erm, I guess I thought this was the specific reason for trademarks. Basically, a trade mark is a badge of origin, used so that customers can recognise the product of a particular trader. http://www.patent.gov.uk/tm/whatis/definition.htm Perhaps not, IANAL. If that's not the *reason* for having a trademark then I don't understand why *anyone* would have one, and clearly that can't be right because *lots* of people pay a fair bit for them, people who have really good lawyers. To go back to the earlier example, Coke is not a person, group or business, so I don't think the manufacturing company (Cadbury Schweppes in the UK, IIRC) can use passing-off very easily and trademarks are more straightforward for their aims. I think this is the main use for trademarks, to identify products not named after their manufacturer. Some prefer to use them as a more clear-cut case than passing-off, but again they have very different aims to any likely debian aim. Debian is in the fortunate situation where our group and our product use the same name as their distinguishing mark. what exactly they're trying to prevent that wouldn't be infringing trademark law. I think the recent Debian Desktop web site is an interesting case. Alright, that's fine, we can stipulate the license under which the Debian logo is used. Yes: I say MIT/X11-style now! Haha. Personally, I don't particularly care. So long as we have it trademarked so that it can't be used to mean some other software product I don't see the issue of having someone use the Debian logo, or some derivative of it, on their car, home, shirt, webpage, whatever. I don't care, so long as we have it DFSG-free and can include it in main. So, we are in opposition... -- MJR/slef My Opinion Only and possibly not of any group I know. http://mjr.towers.org.uk/ http://www.ttllp.co.uk/ for creative copyleft computing
