Will the real Linuxgazette please stand up

Alan Cox wrote:

John Fisk founded Linux Gazette in 1995. He's not visibly part of either side of the argument which begs the question who did he give it to.

It's a fair question, and the top-level answer is that copyright over all content belongs to the individual authors, being published by each of them under an open-source licence (in LG's case, OPL v. 1.0, and two predecessor open-source licences for very early issues). Alan's no doubt very familiar with this concept. {grin}

Alan is of course thinking of some concept of ownership over the magazine as a whole, and that too is a fair question: The answer is that there's really nothing of that sort to own. The compilation copyright (if any) would likewise be OPL-licensed, and LG was from its inception explicitly a community, non-profit effort.

And that leaves an equally fair third question: What was it that John M. Fisk entrusted to SSC, Inc. -- subject to the promise to keep it non-commercial -- when medical school was keeping him too busy to keep things going? Please read again what John wrote: Phil Hughes and SSC, Inc. willingly assumed (and carried out admirably for many years) an obligation, a volunteer job, a custodianship.

And explicitly not over a corporate balance sheet asset, a lesson that Mr. Hughes seems to have forgotten recently.

You see, the other shoe has just dropped: Despite the warning of many (including numerous of its own employees) that the move would greatly damage its standing in the Linux community, SSC evidently considers it easier and cheaper to try to seize our magazine's linuxgazette.net domain than to file a trademark-infringement lawsuit: They've just delivered a cease & desist letter to our domain registrar, citing a bogus trademark claim. We strenously object, and are drafting a response just in case SSC causes the ICANN UDRP to be applied (as appears to be their intent). And, yes, we have indeed posted the demand letter to the EFF's http://www.chillingeffects.org/ Web site. It'll be case #983, when available for display, there. Here is a draft of what may end up being our reply (subject to review by the editorial board):

Dear Mr. Hughes:

We are surprised to hear your claim of Linux Gazette being a trademark of Specialized System Consultants, Inc., and of our magazine at linuxgazette.net violating that alleged trademark, for numerous reasons:

1. The magazine Linux Gazette was created not by SSC,, Inc. in 1996, but rather by John M. Fisk in 1995. We know of no conveyance of any trademark to SSC, Inc., if such trademark can be said to exist at all.

2. The magazine Linux Gazette was always explicitly, from its 1995 inception, a non-commercial magazine, as was repeatedly acknowledged within the text both before and during your firm's hosting of the project. We cannot see that the mark "Linux Gazette" has ever been used in commerce -- neither in 1996 or at any other time. Your demand letter provides no evidence of such usage.

You cite "sponsorships sold by us": That refers solely to money donated to SSC by Linux firms to help support the Gazette, and acknowledgements of those donations. That doesn't make your firm's use of the name from 1996 to 2003 commercial; that makes it a charity. If necessary, I'm reasonably sure we can provide further evidence that Linux Gazette has never been a commercial effort of any sort -- if you seriously dispute that matter.

Since your firm did not, in fact, make use _in commerce_ of the name Linux Gazette during any part of that time period -- i.e., you did not sell any product or service marked as "Linux Gazette" -- your claim that a common-law trademark was established thereby appears to be baseless.

3. Moreover, even if a trademark interest existed and even if it were the property of SSC, Inc., by both common law and Federal statute (where applicable), the only uses that could be enjoined thereby would be sale of goods or services using the covered mark in a way likely to confuse customers into believing the trademark owner endorsed or produced them.

Linux Gazette (the magazine operating at linuxgazette.net) offers no goods or services for sale, whatsoever, and does not contemplate offering any such sales in the future.

Accordingly, we deny your assertion that a trademark exists, we deny your assertion that SSC, Inc. owns a trademark, and we deny your assertion that the linuxgazette.net domain or any operations thereof violate any trademarks that might be owned by SSC, Inc. or by anyone else.

Sincerely,
[etc.]

CC: Legal Department, Central Registrar (dba Domainmonger.com), 14128 126th Pl. NE, Kirkland, WA 98034 USA
CC: Legal Department, Tucows Inc., 96 Mowat Avenue, Toronto, ON, M6K 3M1 Canada
CC: support@domainmonger.com
CC: [an e-mail address for Mr. Hughes that may be private], phughes@ssc.com
CC: support@tucows.com"

(Just a further comment: Further action to take our domain name will, if successful, not succeed in coercing us to drop our magazine's name. It will just make us really flippin' annoyed.)

By the way:

I posted a copy of Linux Gazette magazine's draft response to SSC, Inc.'s cease & desist notice to the "Site Feedback" section of its user comments Web forum (http://www.linuxgazette.com/node/view/107, last night, and it was deleted by this morning. (Per SSC's requirements, I omitted all citations of the http://linuxgazette.net/ domain name.)

So, SSC readers, I guess you now have a better idea of where you can read Linux-community news (LWN), and where you cannot.

Rick Moen
Contributing Editor, Linux Gazette

I've received a reply on the whole commercial rights matter from John M. Fisk, Linux Gazette's founder who turned leadership of the magazine over to Phil Hughes and Linux Journal / SSC, Inc. In it, Fisk confirms my understanding that he understood his agreement with SSC to involve (1) a guarantee that LG would remain non-commercial, and (2) that Fisk did NOT assign to SSC, Inc. any trademark rights.

It would appear that, in its current course of action, SSC, Inc. attempting not only to run roughshod over a volunteer effort, but in so doing is misrepresenting the nature and extent of its legal rights.

Date: Wed, 10 Dec 2003 09:30:08 -0500
From: jf235@email.med.yale.edu
To: Rick Moen <rick@linuxmafia.com>
Subject: Re: Linux Gazette

Hi Rick, thanks for writing. I'll try to address your questions below.

> Dear Dr. Fisk:
>
> You've probably been too busy with real life to notice, but we at
> Linux Gazette magazine have been having some problems of late. To
> make a long story short, because SSC announced intentions in 3Q 2003
> to effectively kill Linux Gazette by transforming it into a
> Slashdot-style Web discussion forum, and for several other reasons,
> the couple of dozen editors and staff unanimously voted to move the
> magazine away from SSC, to http://linuxgazette.net .
>
> Phil Hughes at SSC, Inc. has unfortunately been extremely vindictive
> about this, and is retroactively asserting commercial trademark over our
> magazine's name, and based on that is attempting to seize our Internet
> domain.
>
> It would help us a great deal if you could confirm our understanding
> of your intentions in August 1996. Based on your wording in issue #8,
> we believe your understanding was that SSC would continue to operate
> Linux Gazette as a free, entirely non-commercial magazine alongside
> its commercial offering, Linux Journal. Can you confirm this?

This is correct.

Bear with me for a moment and I'll try to provide a bit of background. I had
started the Linux Gazette in early 1995, essentially as a means of learning
HTML and to provide an educational/entertaining resource for other Linux
enthusiasts. I had spent a bit of time lurking around various Linux related
USENET groups and found that although there was a good deal of useful
information there, the signal to noise ratio at times dipped pretty low.

I had no access to the internet, other than a 2400 baud dial up connection to
the Vanderbilt University VAX machine. A physics grad student, Tim, offered
to host it on a site that he was running, and that's where the LG got its
start. Throughout the early life the LG, I was always beholden to others to
the host the content.

My stated intention at that time was to start a monthly online magazine with a
variety of article formats: in-depth articles, short tips-and-tricks, email
correspondance, etc. It was always intended to be open (in the sense of open
to all contributors), free (in the sense of beer AND speech), non-commercial,
and "moderated" only in the sense that no flames or derogatory material were
going to be allowed. At the time, the Linux community was pretty small
(Patrick V. was just getting Slackware well established and Marc Ewing, Erik
Troan, and Donny Barnes were gearing up for RedHat!) and collegial.

It was an almost instant success in terms of community interest and took very
little time for several regular contributors to come forward and offer to
provide monthly articles of good quality. Within a year, I was getting
overwhelmed trying to provide the time to get new editions of the Linux
Gazette ready and sent out to the various hosting sites.

In 1996, I received an unexpected call from Phil Hughes at SSC with an offer
to take over the management of the Linux Gazette. He mentioned that he had
the personnel to handle the editing and distribution aspects and that he would
continue to make it available as it had been started - open, free, and
non-commercial.

Phil was very pleasant and we entered into a "gentleman's agreement" that he
would take over management of the Linux Gazette and I would be able to retire
gracefully and continue to contribute as time allowed (which clearly, it has
not...) No money was exchanged during this transaction and no documentation
was created or signed -- we simply had an mutual verbal agreement.

They were good to their word and Marjorie Richardson did a wonderful job of
handling the early efforts of keeping the LG going. On my part, I returned to
residency in Pathology at Yale and am currently completing a fellowship in
Transfusion Medicine. I was delighted to have someone interested in the LG
and have greatly appreciated their years of dedication to it.

> Can you also confirm that you made no agreement with SSC, Inc. to
> assign them any trademark?

That is correct: the verbal agreement that Phil Hughes and I entered into was
that the Linux Gazette would continue as it had been started, the only change
being that SSC would take over the day to day management of it.

> I will stress that we bear absolutely no ill will towards SSC, Inc. or
> towards Mr. Hughes. We wish only to prevent his use of belated
> trademark claims to harrass the Gazette, after its departure from his
> site.

I'm deeply sorry to hear of this situation. Phil was a godsend and I
appreciate his efforts in keeping the LG going. I will demur on comment as to
whether moving to a "Slashdot Style" format is A Good Thing(tm) or not -- it
certainly was not my original intention.

It's unfortunate that a complementary solution could not be amiably arrived
at: a "two-site" Linux Gazette, as crazy as that sounds, wouldn't be entirely
a bad idea. As long as the two sites linked to each other, I could envision
having a Slashdot style site with daily chatter and such, and an ongoing
monthly online magazine as a complementary site for more currated content.
Just a thought...

> (The situation is admittedly somewhat more confused than that, but I
> was going to omit the gory details.)

Again, sorry to hear about this mess. I hope that it can be resolved in an
amicable fashion and that the community will support, rather than split from,
whatever is decided.

I wish you the best. The grace and wisdom of God be with you.

cheers,

John
--
John M Fisk, M.D.
Transfusion Medicine Fellow, Department of Laboratory Medicine
Yale University School of Medicine, New Haven, CT
(203) 688-2441