| |||||||||||||
Open licences need a "no passing off" clauseOpen licences need a "no passing off" clausePosted Jul 14, 2011 9:08 UTC (Thu) by ayeomans (subscriber, #1848)Parent article: VLC and unwelcome redistributors This has strong links to the LWN article on Nina Paley's Rantifesto. Most current open source licences don't appear to have any direct way of protecting their name and reputation. Trademark law is used instead as this can be enforced through the offence of "Passing Off". But most projects don't want the extra burdens of applying for a trademark, but would rather work under the automatic benefits of copyright law. So I'm suggesting that open source licences for software and text would benefit from having a "no passing off" clause in the licence grant. As an example, a project I worked on wished to produce a document that encouraged re-use, but did not want any derivative works to pretend to be official. I could not find a suitable standard licence. We ended up with a CC-No Derivative more restrictive licence, then added You are free to copy, distribute, display, and perform the work, subject to appropriate attribution ..., except that in addition you may make derivative works, providing such works do not claim to be endorsed by ...Such a clause would benefit cases such as VLC in that derivative works could not be called "VLC" (without separate permission, of course).
(Log in to post comments)
Open licences need a "no passing off" clause Posted Jul 14, 2011 12:39 UTC (Thu) by dbruce (subscriber, #57948) [Link]
I've thought about this in connection with Mozilla's strict policy about the Firefox name, in particular the problem it poses for Debian - if even a small bug or security fix is applied by anyone other than Mozilla, the patched program can no longer be called "Firefox". This of course is not how FOSS software normally operates. When software gets packaged in collections, be it Linux distros, the BSD Ports Collection, MacPorts, or what have you, many packages require patches to be applied to the vanilla upstream sources to fix minor issues. If everyone acted like Firefox and disallowed such patching, the FOSS world would have huge problems.
I think the tricky part is how to allow the above "good" third-party patches, without opening the door to the sort of problems VLC is experiencing. I'm not sure there is a legally rigorous way to do so. Certainly, Mozilla takes the position that all modifications are incompatible with the Firefox trademark.
Open licences need a "no passing off" clause Posted Jul 14, 2011 13:23 UTC (Thu) by rahulsundaram (subscriber, #21946) [Link]
"Certainly, Mozilla takes the position that all modifications are incompatible with the Firefox trademark."
Not true. You just have to get patches approved
Open licences need a "no passing off" clause Posted Jul 14, 2011 18:18 UTC (Thu) by clugstj (subscriber, #4020) [Link]
Yes, but, what is the procedure for having them "approved"? Is it working for anyone? I seriously don't know the answers to these questions - not trying to troll.
Open licences need a "no passing off" clause Posted Jul 14, 2011 20:00 UTC (Thu) by kripkenstein (subscriber, #43281) [Link]
I don't think there is a perfect policy that can work for everyone here.
Not having a trademark leads to what VLC is now facing. That isn't an issue for Linux, GNOME, Qt, etc. because they aren't popular consumer products like VLC and Firefox. For those last two though, this is a major danger.
Having a trademark will always lead to friction at some level. It adds some limitations on what people can do with your code. But optimally this can be resolved in most cases (like how Ubuntu can ship branded Firefox).
So there isn't a perfect solution here. But I think that Linux and Qt do not need trademarks, while VLC and Firefox do.
Open licences need a "no passing off" clause Posted Jul 14, 2011 20:28 UTC (Thu) by dlang (✭ supporter ✭, #313) [Link]
actually Linux does need a trademark (and there is one, and it is enforced). 10 or so years ago this was actually a issue and soem legal work was done to settle the matter, things have been quiet since (I suppose that it's amazing what the realisation that IBM and their lawyers really care about this sort of thing can do to quiet things down, I think the major problems were settled before IBM got heavily involved with Linux, but once they started making the announcements about their involvement.....)
Open licences need a "no passing off" clause Posted Jul 14, 2011 21:18 UTC (Thu) by kripkenstein (subscriber, #43281) [Link]
I believe Linus owns the Linux trademark? In any case, there is no maintaining of the trademark, as anyone can build off of the Linux code and call it "* Linux". Because there is no enforcing of the trademark, it's doubtful whether it can still be used to do anything.
In practical terms, someone could make something called "TotallySecure Linux", but which actually contains spyware, and I'm not sure Linus (or whoever owns the Linux trademark) could do anything about that.
But this doesn't really matter, because Linux isn't a consumer brand. The people that actually use Linux - like us - know enough to not be confused by a "TotallySecure Linux". But that isn't the same for VLC and Firefox.
Open licences need a "no passing off" clause Posted Jul 14, 2011 21:45 UTC (Thu) by dlang (✭ supporter ✭, #313) [Link]
actually, if you investigate it, there is a very permissive use of the Linux trademark, to basically include anything that's based on Linux.
I believe that this did require enforcement at one point (I know that there were attempts by individuals and businesses to trademark 'Linux' as their own, and Linus had to fight it)
someone calling something TotallySecure Linux" as you say would probably not be violating the trademark on Linux (as long as there actually was linux in there).
Open licences need a "no passing off" clause Posted Jul 15, 2011 2:52 UTC (Fri) by jhhaller (subscriber, #56103) [Link]
In order to call something Linux, one needs to request use of the trademark from Linux Mark Institute, the sole authorized agent for sublicensing the trademark. It's a fairly straightforward process. Of course, Linux is a trademark for only a limited field, leading to some interesting things like a penny stock called Linux Gold, a gold exploration company, which cropped up on searches for news about Linux.
Open licences need a "no passing off" clause Posted Jul 15, 2011 3:04 UTC (Fri) by kripkenstein (subscriber, #43281) [Link]
But people create new Linux distros all the time, and use the Linux name, without asking permission in the way that you suggest. At least in the US, not protecting a trademark leads to it being lost.
Open licences need a "no passing off" clause Posted Jul 14, 2011 22:18 UTC (Thu) by roc (subscriber, #30627) [Link]
It's working for distros like Ubuntu and Fedora which distribute patched Firefoxes, yes.
Open licences need a "no passing off" clause Posted Jul 21, 2011 3:36 UTC (Thu) by slashdot (guest, #22014) [Link]
Why can't they just grant a trademark license to all the main Linux distributions? (subject to reasonable conditions about the changes, such as not intentionally malicious and not regressing a testsuite)
You don't need to register a trademark, to have a trademark. Just assert it. Posted Jul 14, 2011 13:52 UTC (Thu) by david.a.wheeler (guest, #72896) [Link] Trademark law, not copyright law, is designed to handle this sort of thing. And at least in the U.S., you do not need to formally register a trademark to have one. The USPTO's Trademark FAQ says: Must I register my trademark? No. You can establish rights in a mark based on use of the mark in commerce, without a registration. However, owning a federal trademark registration on the Principal Register provides several important benefits.
You don't need to register a trademark, to have a trademark. Just assert it. Posted Jul 14, 2011 18:22 UTC (Thu) by dlang (✭ supporter ✭, #313) [Link]
you may not have to formally register the trademark, but you do have to enforce it or you loose it.
You don't need to register a trademark, to have a trademark. Just assert it. Posted Jul 15, 2011 0:09 UTC (Fri) by giraffedata (subscriber, #1954) [Link] And I believe protection exists only for marks used in business. Does the VLC project qualify as a business? I think the fundamental question is would the project lose money if people were tricked into downloading something else thinking it were VLC's product?
You don't need to register a trademark, to have a trademark. Just assert it. Posted Jul 19, 2011 4:20 UTC (Tue) by butlerm (subscriber, #13312) [Link]
I imagine that registering the trademark, and threatening to sue anyone who knowingly abuses it would go a long way. It doesn't have to cost a lot of money.
Open licences need a "no passing off" clause Posted Jul 15, 2011 12:23 UTC (Fri) by juliank (subscriber, #45896) [Link]
Such clauses exist to a certain extent in most major free software licenses.
The GPL-2 has it:
The GPL-3 has it:
The Apache license has it, with almost identical wording to GPL2:
The problem is that it only applies to the source code, not the binary, at least for GPL-2. For the Apache-2 license, it also applies to modified Object form (but since you did not modify the Object form, but the Source form, it's not actually active), and for the GPL-3 the statement could apply to binary as well, although I'm not 100% sure on it.
Open licences need a "no passing off" clause Posted Jul 21, 2011 2:19 UTC (Thu) by Hausvib6 (guest, #70606) [Link]
I agree.
One day, we'll hear a news like this "Terrorists use Linux on their computers." For the enlightened, this means nothing as the terrorists can also drink Coke, but there is a large pool of people called unwashed mass that will interpret things differently.
|
|||||||||||||