The continuing Linux Gazette saga [LWN.net]

We first reported on the dispute over the direction and management of the Linux Gazette back in November. Since then, the Linux Gazette has tended to resemble a forked development project; both LinuxGazette.com (at SSC) and LinuxGazette.net (where the departing editors set up shop) remain online. Both have published an Issue #97 for December. Each maintains its own "Answer Gang." And both claim to be the real Linux Gazette. Behind the scenes, however, things have been happening.

There have been repeated charges that LinuxGazette.com has been censoring its forums to keep them free of criticism of SSC's actions. SSC, it would seem, has dealt with that issue by eliminating the forums altogether. Most of the forum posts will, evidently, be simply deleted.

SSC has sent a letter claiming trademark rights over the name "Linux Gazette" and requesting that ownership of the LinuxGazette.net domain name be forcibly transferred. Over at LinuxGazette.net, they respond that no trademark was ever transferred to SSC when it started running the Linux Gazette, and, in any case, the Linux Gazette is a noncommercial operation. In the U.S., trademarks are for commercial use and cannot be obtained for names which are not used in a commercial setting.

Rick Moen, of LinuxGazette.net, took the time to track down John Fisk, who founded the Linux Gazette back in 1995. In his response, Mr. Fisk betrays a clear desire to not get drawn into the current dispute. He also states, however, that he had no intent to transfer any sort of trademark rights to SSC when he let SSC take over operation of the Linux Gazette.

In other words, the waters have been well and truly muddied. If the rights to use the "Linux Gazette" name end up being the subject of a legal battle, it is hard to predict what the eventual result would be. One can predict, however, that such a fight would not be good for either Linux Gazette, the people who contribute their articles, or the community as a whole.

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The continuing Linux Gazette saga

Posted Dec 20, 2003 5:10 UTC (Sat) by wolfrider (guest, #3105) [Link]

--You are correct sir! Avoid the .com and patronize linuxgazette.net.

--One wonders why SSC is going to all this trouble; they have already killed off whatever community goodwill they *might* have had. Things are bound to get worse for them, not better.

The continuing Linux Gazette saga

Posted Dec 20, 2003 5:12 UTC (Sat) by wolfrider (guest, #3105) [Link]

--Probably not you, but certainly everyone ELSE who enjoys their articles (at least the Original lg.net's articles) and benefits from them.

Correction, and comments

Posted Dec 18, 2003 13:27 UTC (Thu) by rickmoen (subscriber, #6943) [Link]

Jon, just a couple of commments:

1. Although Linuxgazette.com (SSC's site) purports to have a feature called "The Answer Gang", it's empty because there's nobody home: The entire Answer Gang having left with the rest of the Gazette staff, en masse.

I stress this fact because the SSC site continues to promote the notion that "some of the volunteers" or "several of the contributors" left starting November. No, Mr. Hughes, it was everybody, by unanimous decision.

I should note that Mr. Hughes has now hired a local Costa Rica guy named Willy Smith to be the "editor in chief" of their rump linuxgazette.com Web site, which will henceforth consist only of blogs and some article submissions. The forums are, as you say, being axed. For now, feedback is permitted to some blog & article items, but not others, and a comment by Hughes suggests that posters can expect comments to be purged on occasion.

We wish Mr. Smith all the best with his site. We cross-link to it, and do our best to remedy any confusion.

In his first "blog" entry, Smith defends Hughes's actions, calling them actions taken in a "measured, carefully considered manner" and "minimal and perfectly logical". Does that include not just trademark threats against the departed staff, but also stripping of authors' notices from republished prior articles, wrongfully replacing them with SSC copyright notices? We notified SSC of this on Oct. 28, 2003, and politely requested immediate correction. And they're still doing it, two months later:

http://www.linuxgazette.com/node/view/58
http://www.linuxgazette.com/node/view/61

Is that Mr. Smith's idea of "minimal and perfectly logical"? Ripping off the property rights of volunteer authors?

And how about the removal of articles without explanation from prior, already-published issues? Is that OK with Mr. Smith, too?

Contrary to the story continually promoted by Mr. Smith's site, those things (along with Hughes's plans at the time to terminate the magazine in all meaningful senses) are primarily what drove 100% of the staff to vote for departure to elsewhere.

2. You say: In the U.S., trademarks are for commercial use and cannot be obtained for names which are not used in a commercial setting.

That is true, and we are going to be filing with the US Patent and Trademark Office to block or modify SSC's application for a "Linux Gazette" service mark (a trademark on services offered in commerce, as opposed to goods), on grounds that Mr. Hughes's statement asserting that he used the name "Linux Gazette" in commerce starting August 1, 1996 was materially false and made in bad faith. In fact, SSC's so-called "selling of sponsorships", cited as evidence of use of that mark "in commerce", appears to refer solely to those corporate support donations from other companies to support the entirely non-commercial magazine, and the alleged service being sold was just acknowledgment of the donations.

We hope that Mr. Hughes will withdraw his USPTO application, when he becomes aware of our intent in this area. If found to be willfully false, such statements in USPTO applications may, under 18 USC 1001, subject applicants to fines and/or imprisonment. We don't wish to see that, and only wish to see his claims dropped.

However, further to your comment and more immediately important, under US tradermark law, even the holder of a valid, in-force trademark cannot enjoin non-commercial use of his mark. Period. (The idea is that commercial competitors cannot use your mark in a way likely to confuse your customers into thinking you produced or endorsed his goods or services.)

The ICANN UDRP rules specifically acknowledge that fact; you cannot seize a domain name used for solely non-commercial purposes. See: UDRP provision 4c(iii).

Therefore, even if SSC, Inc. were to gain registration of a (questionable) trademark title over use of the name "Linux Gazette" in magazine publishing, it wouldn't be able to lawfully enjoin non-commercial efforts -- which ours is -- that use that name.

This, of course, doesn't stop trademark holders (and would-be holders) from brandishing toothless threats and harrassing people who have infringed nothing at all. It's a pity Mr. Hughes is stooping that low.

3. Anyhow, we believe we've now blocked Mr. Hughes's attempt to grab our domain name. And the Linux Documentation Project has just decided that Linuxgazette.net is the entity that it affiliated with back in 1995, and that they will link to and mirror us in the future. Hughes's bad-faith trademark application with USPTO is next. (We'd really rather just publish a magazine.)

Rick Moen
Contributing Editor, Linux Gazette

The continuing Linux Gazette saga

Posted Dec 18, 2003 17:45 UTC (Thu) by N0NB (guest, #3407) [Link]

I've been susbscribed to Linux Journal since late 1996 and have read Linux Gazette for just as long. I will admit that LG has catered more toward the beginning Linux user, but there are usually a couple of gems each month.

I long believed that SSC hosted LG through an altruistic endeavor to promote the acceptance of Linux and to further support the Community. The events of the past few months have shaken that belief and have made me think twice of any altruistic behavior that SSC in its current form would appear to have.

I have been very disappointed by Mr. Hughes' actions in this matter. I hope that my message in some small way conveys my frustration with those actions. No, I do not plan on cancelling my LJ subscription as the magazine has value to me and is staffed by some very talented writers. I'm sure that not all of them are entirely happy with Mr. Hughes' recent actions, although they may be hesitant to admit so openly for obvious reasons.

Mr. Hughes, I don't believe you can lay any legitimate claim to "Linux Gazette" in commercial terms. LG was only marketed, that I'm aware of, on the LJ CD-ROM. However, I never equated the CD-ROM to be a product that primarily contained LG, rather it was there along side the primary product of Linux Journal, but was a secondary inclusion.

Face it, Mr. Hughes, you and your company believed it had a better idea for Linux Gazette, or at least one that could be turned into an entity that could recoup some of its hosting costs. However, the LG editors, contributors, and readers apparently did not ask for such a change and when faced with an ultimatum took their creation elsewhere. I think the community that values LG is thankful for the SSC hosting for 7+ years. Yet, the creator of Linux Gazette has said that no trademark of any kind was transfered to SSC so I think it is time for you to give it up.

Linux Gazette does not belong to you nor SSC, Mr. Hughes. It belongs to its community and it is high time SSC and the Linux Gazette community part ways as amicably as possible since it is obvious that there is no way both of you can work together any more. In the larger interests of the Linux and Linux Gazette communities, please drop your demands. Your continued stance hurts no one but SSC and Linux Journal along with your reputation.

Regards.

- Nate >>

The opposite view

Posted Dec 19, 2003 1:16 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

I'm going to have to take the opposite view of what happened between John Fisk and SSC, John's ex post facto characterization of it nothwithstanding.

I'd like to set aside the question of whether Linux Gazette is commercial. Even if that prevents trademark law from being relevant, most of us believe in a moral right to exclusive use of names.

If an unbiased jury looked at the agreement between Fisk and SSC, I believe it would find that Fisk and SSC intended for Fisk to transfer his rights in the Linux Gazette name to SSC. Because otherwise, why was Fisk even involved in the transfer? SSC didn't need anything from Fisk to publish its own free monthly web magazine. It needed Fisk only if it wanted to assume Linux Gazette's reputation among readers, volunteers, and writers. And what did Fisk give up in return for getting all that free time back?

The agreement was not formalized (with lawyers and documents) because there wasn't enough money involved. But if it had been, I know what the contract would have said, because such contracts are extremely common. It would have said that 1) Fisk transfers all rights in the name; 2) Fisk promises not to publish a similar magazine for 5 years, or work for one, or hire any of the "employees." 3) SSC promises to publish the magazine under the same philosophy as it always had been; 4) if SSC decides to stop doing (3), it has to facilitate continuation of the magazine by others.

Anyway, I can see that (3) and (4) make fertile ground for defeating SSC's claim on the name today, but I still believe an unbiased person would find that SSC did in fact acquire moral rights to the name in 1995.

The opposite view: Moral rights?

Posted Dec 19, 2003 2:13 UTC (Fri) by AnswerGuy (guest, #1256) [Link]

I think the notion of "moral rights to the exclusive use of a name" is
dubious.

Setting aside for a moment what "exclusive use" even means. (An extreme
interpretation would be that I could forbid everyone from uttering a given
word or phrase --- that would be "exclusive").

I agree that it would be unethical for anyone to deliberately use
nomenclature to create confusion in a specific field of endeavor. We at
LG.net have wrestled with that issue. It's our opinion that our use of
the term Linux Gazette *alleviates* the confusion among contributors and
readers. We feel that Phil's insistence on eliminating the Linux Gazette
as we all knew it; over the objections of substantially all of it's
regular contributors is creating the confusion.

We heard rumors of his plans, inquired about the, were assured that our
input would be solicited and our concerns would be addressed. He then
unilaterally made changes igoring the objections of the entire staff of
volunteers.

In commercial endeavor that would be his right. He would have an
unambiguous legal right to keep the name. Ethically it might still be
dubious; logically it's just plain stupid.

However, we worked on LG for years (I longer than anyone --- far long than
Mr. Fisk, in fact) with the understanding that it was a community project.
That it had been *entrusted* to Phil and SSC with a general proviso that
it remain free, online, and that it fundamentally be a periodical!

The blog and forum site is not a periodical.

Sure, there was a moral claim

Posted Dec 19, 2003 6:00 UTC (Fri) by rickmoen (subscriber, #6943) [Link]

giraffedata wrote:

I still believe an unbiased person would find that SSC did in fact acquire moral rights to the name in 1995.

It's a fair point (though you mean 1996), and I'll say the same thing to you now that I did in our December 2003 issue: I agree with you.

You know there's a catch, of course, and here it is: The view among the staff is basically that they lost that moral right over the course of 2003. SSC announced a clear intention to end publication of monthly issues, over the opposition of all the staff. It began violating the copyright of past authors in their re-postings to the CMS (stripping author names and copyright notices). And we found, solely because the Debian LG packager tipped us off, that SSC had been retroactively censoring our past issues without consulting or notifying us. (It was also around this time, though we didn't notice it right away, that Hughes broke faith with John Fisk by newly asserting commercial rights.)

We didn't fly off the handle about those things. We sent polite inquiries to ask what was going on, both directly to Phil Hughes and also to his webmaster Jeff Tinsler. Hearing nothing in reply, we sent a polite second inquiry. And waited. And waited. Nothing, for several days.

August 28, 2003, wasn't the day we suddenly irrationally decided to leave; it's the day that enough was enough, and everyone, without exception, voted that it was necessary to go. Our understanding was that there would literally be no, zero, nada additional issues of the magazine if we didn't -- that the magazine would literally die as such, in favour of a Slashdot-style discussion site -- but please note that that was only one of several individually compelling reasons we decided "Fine, you don't want to host Linux Gazette any more? We'll just take it elsewhere. So long, and thanks for all the fish."

Note that, when we were obliged to make that decision, not only was there no Linuxgazette.com November issue in the offing; SSC had actually told us, very clearly, that there would be no more magazine issues at all. Our choice was either let SSC kill the magazine, or take it elsewhere.

Hughes's decision to reverse course and publish additional issues came after we left. (I'll wager it was about 10 minutes after receiving our polite departure letter and announcement of our impending November issue, but I digress.)

You say Hughes/SSC had moral rights, acquired from Fisk? OK. You're willing to overlook Hughes's breaking faith with Fisk? OK. You're prepared to ignore the surreptitious gutting of back issues, and copyright violation against past authors? OK. You think SSC ignoring all inquiries from the staff about those things is just the way things go? OK. You think SSC eliminating the editor-in-chief position and refusing to let the staff's choice reassume it was fine? OK.

But did Hughes's moral right also extend to his announced plans to summarily kill our volunteer magazine, over the objections of 100% of the staff? Sorry, I don't think so.

The staff feel that SSC/Hughes used up their moral-entitlement capital and went deep into the red, somewhere in the middle of that series of events. You may not agree. We respect your right to differ, but now you understand where we're coming from.

Best Regards,
Rick Moen
Contributing Editor, Linux Gazette

The continuing Linux Gazette saga

Posted Dec 22, 2003 3:13 UTC (Mon) by stock (guest, #5849) [Link]

SSC's Phil Hughes apparently sensed a problem some time ago. That problem
is that de pace of Linux development and Linux in the news is way way
faster as the montly release schedule of his Linux Journal.

In the past, upto 1999, I had a subscription to Linux Journal. But as
time passed by i noticed that the LJ contents had begon to satisfy my
Linux News needs less and less. At about the same time or later, (do not
really remember that well), i found the lwn.net weekly news site, which
carried more interesting article's and news coverage on a _weekly_ basis
as LJ was doing monthly. When lwn.net was in need for money and asked for
a subscriber fee i didn't hesitate a momemt and subscribed to lwn.

I guess Phil must have felt the heat coming also. What i can see now in
his current actions, is basicly his need for a online magazine which has
better quality content and is more frequently updated.

LJ of course has its own nice input as things like the top-10 Linux
products of the year. However the last time i checked i mostly found
commercial products which were announced product of the day at Linux
World. Somehow one starts to hesitate about the independant news coverage
of Linux Journal.

I quit LJ subscription long time ago, because the fine technical
article's inside LJ became less and less abundant. Linux Gazette is, i
assume, Phil's counter measurements.

Robert