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"Chilling Effects" letter received from SSC, Inc."Chilling Effects" letter received from SSC, Inc.Posted Dec 5, 2003 9:05 UTC (Fri) by rickmoen (subscriber, #6943)Parent article: 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, CC: Legal Department, Central Registrar (dba Domainmonger.com), 14128 126th Pl. NE, Kirkland, WA 98034 USA
(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.)
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