Trademarks: A threat to free software's freedom? (NewsForge) [LWN.net]

NewsForge tackles possible conflicts between trademarks and the Debian Free Software Guidelines. "Do trademarks require a special license for software to be free? That is the question that Debian developers are currently debating. The specific concern is whether AbiWord's recent assertion of trademarks conflict with the Debian Free Software Guidelines (DFSG), the set of principles under which the Debian distribution operates. However, the implications could affect not only Debian's use of other trademarked packages, such as Mozilla, Evolution, and OpenOffice.org, but other GNU/Linux distributions' use of them as well."

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Trademarks: A threat to free software's freedom? (NewsForge)

Posted Nov 6, 2004 0:20 UTC (Sat) by JoeBuck (subscriber, #2330) [Link] (8 responses)

Clause 4 of the Debian Free Software Guidelines reads:

Integrity of The Author's Source Code
The license may restrict source-code from being distributed in modified form only if the license allows the distribution of "patch files" with the source code for the purpose of modifying the program at build time. The license must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software. (This is a compromise. The Debian group encourages all authors not to restrict any files, source or binary, from being modified.)

Notice the second sentence. Asserting trademark rights, such as that only a version produced by the authors or approved by the authors can carry the original name, would seem to be explicitly allowed by this clause. As long as this language is in the DFSG, I don't see how Debian can object to at least certain uses of trademarks to distinguish official from non-official versions.

Trademarks: A threat tofree software's freedom? (NewsForge)

Posted Nov 6, 2004 2:31 UTC (Sat) by Duncan (guest, #6647) [Link] (2 responses)

I'm not a Debianite (I am a Gentooist), but as I have an interest in free
software remaining free, I tend to follow their debates on the subject to
some degree.

I'm not sure about the AbiWord case, but I know the Mozilla-Firefox policy
has been discussed on the Gentoo devel group. In that case, Firefox
restricts the use of their branding icons and the like as well as the
name, they claim (not unreasoanbly) due to concern over dilution of
trademark and reputation.

Thus, the question there in relation to the policy you quoted above would
be whether "name" includes other identifying "trademarks" such as icons
and the like. I'd suggest that it does, altho that's of course up to
Debian to decide. However, I can see a legitimate concern and debate over
what /could/ become a slippery slope. Once certain (admittedly
reasonable, altho not necessarily desirable) restrictions are allowed, as
with name, and now icon and other "trademark" artwork, there will always
be borderline cases. Just where is the line drawn as to what restrictions
are allowed and what not? In a uni-national context, one could simply
leave it up to the legal definition of trademark. However, in the
multi-national/international context of free software and the internet,
which nation's law applies? What if some nation institutes a law that
goes as far over the top in respect to trademarks as I'd guess most here
would agree the DMCA went over the top in respect to other "intellectual
property", copyrights? We can't let the arbitrarily over the top laws of
some renegade nation (and I say that as a USian) dictate equally
unreasonable over the top policies in general.

I'm glad to see this debate, as it's important to think about for all of
us that care about freedom of expression and the "free software world",
whether we agree on the details or not. As for my thoughts on where it's
all headed, see my response just posted to the original NewsForge article.

Duncan

Trademarks: A threat tofree software's freedom? (NewsForge)

Posted Nov 6, 2004 3:07 UTC (Sat) by iabervon (subscriber, #722) [Link]

Presumably, for the icons, distros could decide that the packages including the original icons are not free, and simply replace the trademarked icons with a distro-branded (or otherwise non-trademarked) set of icons. Names are possibly more of a problem, because it may not be easy to replace the names of programs and have anyone able to find them, or even be sure to change every occurance.

Does author of GPL software need to provide alternatives?

Posted Nov 8, 2004 15:55 UTC (Mon) by justme (guest, #19967) [Link]

AFAIK, Firefox is not GPL'd. But your example brings up a question: if an author of GPL'd software claims that certain parts of the source distribution (e.g. the icons) cannot be freely modified, then does the author need to provide alternate icons in order for there to be a source set that is completely buildable, modifiable, and redistributable?

Or is it assumed that anyone who wishes to modify the name and icons would modify them all together? That seems like a stretch.

Whoops...

Posted Nov 6, 2004 4:29 UTC (Sat) by JoeBuck (subscriber, #2330) [Link] (4 responses)

... I meant, "note the third sentence", where it says that the author can require modified versions to use a different name.

Whoops...

Posted Nov 6, 2004 14:04 UTC (Sat) by nix (subscriber, #2304) [Link]

Ah yes, the TeX exception. :/

Whoops...

Posted Nov 6, 2004 15:44 UTC (Sat) by branden (guest, #7029) [Link] (2 responses)

The problem, Joe, is that that restriction seems to be in force, *and*
Debian has modified its version of AbiWord, *and* Debian hasn't renamed
it.

Debian therefore appears to be in violation of AbiWord's trademark
license. Except the only trademark license that's publicly available has
been superseded according to the current mark holder. Except that what
it's been superseded by doesn't exist.

It's a very confusing situation. If the trademark license page at
AbiWord's site is out of date and doesn't reflect the wishes of the mark
holder, I don't understand why they don't take it down.

Whoops...

Posted Nov 6, 2004 15:55 UTC (Sat) by branden (guest, #7029) [Link] (1 responses)

Just to connect a few more dots for people...

Dom Lachowitz sent Debian an email with a sort of trademark license that
would permit Debian to distribute its modified version of AbiWord, except
there are two caveats: 1) Dom said it wasn't a license per se, and 2) it's
Debian-specific. For those who haven't reviewed the DFSG or Open Source
Definition lately, licenses that are specific to a licensee cannot be
Free.

If Dom is right that everything Debian and other Linux distributors do
falls under the "trademark fair use" umbrella, then he's right that Debian
doesn't need a trademark license. If he's wrong, though, then Debian
still has a problem -- it needs to either get a DFSG-free trademark
license, or rename the software.

Whoops...

Posted Nov 13, 2004 23:18 UTC (Sat) by pimlott (guest, #1535) [Link]

2) it's Debian-specific. For those who haven't reviewed the DFSG or Open Source Definition lately, licenses that are specific to a licensee cannot be Free.

I thought about this, and I'm not sure it's a problem. Everyone agrees that abiword is free software even without the trademark licence, because you have the necessary freedoms as long as you change the name (and other trademarked items). So a Debian-specific trademark licence wouldn't make the difference between it being free and non-free, it would just give a bit of extra benefit to Debian. I don't see anything wrong with that, unless you interpret the Debian-specific prohibition very strictly.

The situation is difficult if you acknowledge the concern of Abiword over their brand. It would probably be impossible for them to prescribe exactly what changes you could make and still carry the Abiword trademark; yet they want to be recognized in any modification that retains its "integrity". So the best solution for them is to authorize distributors, like Debian, whom they trust, to use the trademark. It seems a reasonable approach to me.

Energies should be focused on patents rather than trademarks right now

Posted Nov 6, 2004 10:43 UTC (Sat) by dwalters (guest, #4207) [Link]

I'd just like to make the point that compared to software patents, trademarks are a less critical issue for the future survival and growth of Free and Open Source software.

I don't wish to detract from the valid arguments that have been made about trademarks, but the EU Council is expected to try to adopt the legislation that would make software patents legal in Europe in a meeting of the EU Competitive Council on November 25th/26th, so focusing energy on fighting software patents is now URGENT.

http://www.nosoftwarepatents.com/en/m/help/index.html

Trademarks: A threat to free software's freedom? (NewsForge)

Posted Nov 6, 2004 13:36 UTC (Sat) by copsewood (subscriber, #199) [Link] (3 responses)

How the then unregistered Linux trademark was handled when someone tried to steal it set a useful guideline for the protection existing trademark law can give to free software trademarks, see http://www.linuxmark.org/ for details. I recall the Linux trademark was subsequently used (in my view reasonably) against someone who registered a whole set of Linux - related Internet DNS domains, as this person was in the domain speculation/resale business, not the Linux business.

Linus' policy, and that of his lawyers on this seems to have been entirely reasonable. If a company needs a documented right to use a derived trademark they have to pay his legal fees, while he doesn't object to fair undocumented use of this trademark for genuine Linux related business. Given that when a trademark is well managed, it seems to provide a protection for software freedom, should we not see this as potentially an opportunity, in the same way that copyright can also be used to protect software freedom ?

Trademarks: A threat to free software's freedom? (NewsForge)

Posted Nov 6, 2004 16:11 UTC (Sat) by dkite (guest, #4577) [Link] (1 responses)

You make a good point. What if someone nefarious decided to name their
proprietary spam filter Spamassasin? Or their proprietary spreadsheet
Gnumeric? Or Opera deciding it could increase their marketshare by
renaming their product Firefox or Konqueror?

Get it here for $49.95!

These names have value. Linux, Evolution, Gnome, Kde, Firefox, Apache,
PHP, Perl, etc. They mean something good, useful, solid, free, etc.

The GPL uses copyright law to protect free software developers, at the
same time encouraging free use and modification. Maybe we need a GPT
which protects trademarks from nefarious uses while allowing the freedoms
we expect in line with the GPL.

Derek

Trademarks: A threat to free software's freedom? (NewsForge)

Posted Nov 8, 2004 12:53 UTC (Mon) by greve (guest, #8385) [Link]

You might be interested in the trademark license that FSFE has published for AGNULA to make sure that people will get 100% Free Software when they get something under this name:

http://fsfeurope.org/projects/agnula/license.en.html

Trademarks: A threat to free software's freedom? (NewsForge)

Posted Nov 6, 2004 16:11 UTC (Sat) by branden (guest, #7029) [Link]

Given that when a trademark is well managed, it seems to provide a protection for software freedom, should we not see this as potentially an opportunity, in the same way that copyright can also be used to protect software freedom ?

That's why I proposed to the AbiWord developers that they just have a trademark license that mirrors the GNU GPL (which is what they use for their copyright license) wherever applicable. That way, if someone violates the GPL with respect to AbiWord, the AbiWord folks (well, probably only Dom) have standing to sue under both the Copyright Act and the Lanham Act.

That suggestion was rebuffed, though, with the objection from one of the AbiWord channel denizens (not Dom) that "copyrights and trademarks aren't the same thing! Get it through your head!". While true, this objection seemed irrelevant to my suggestion (given that I said "wherever applicable").

If the reason for rejecting this proposal is that the AbiWord developers (well, just Dom, as he is the sole trademark holder) wants to be able to exercise discretion to withdraw the trademark license if a version of AbiWord is distributed under compliance with the GPL but the nature of the change is simply something he doesn't like, then in my opinion distributors need clear guidelines as to what is permitted under the trademark license and what is not.

But if Dom's speculation that everything Linux distributors do under the GNU GPL falls under "trademark fair use" is correct, then I don't understand how this fair use would suddenly go away if a distributor decided to rebind an AbiWord menu event to pop up a web browser and visit a porn site (which I think is one of the examples cited on the AbiWord discussion list referenced in the NewsForge article).

The safest course of action for any distributor is to simply stop using the marks, and that means changing the names, logos, and other identifying marks upon which a trademark has been asserted. That, however, doesn't seem to be the best way to express support for an open-source project. I think Debian is being pulled between three poles: 1) We want to have respectful and harmonious relationships with our upstreams; 2) we want to minimize our own legal liability; 3) we want to encourage and reinforce sound licensing practices.

For corporate-backed distributions, concern 2) is paramount, concern 1) comes in a distant second, and 3) seems to be considered almost not at all.

Not a threat.

Posted Nov 6, 2004 18:13 UTC (Sat) by dwheeler (guest, #1216) [Link]

Trademarks aren't a serious threat. Indeed, they're a help. Trademarks don't halt forks of the code and setting things up yourself. One problem users have with forks is figuring out 'which is which -- trademarks actually make that easier. Yes, it makes forking a little harder, but not much.

Trademarks: A threat to free software's freedom? (NewsForge)

Posted Nov 6, 2004 19:34 UTC (Sat) by ballombe (subscriber, #9523) [Link] (2 responses)

GNU GPL section 7. say
"7. If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues),
conditions are imposed on you (whether by court order, agreement or
otherwise) that contradict the conditions of this License, they do not
excuse you from the conditions of this License. If you cannot
distribute so as to satisfy simultaneously your obligations under this
License and any other pertinent obligations, then as a consequence you
may not distribute the Program at all."

The words 'for any other reason' seems to cover trademark as well.

Trademarks: A threat to free software's freedom? (NewsForge)

Posted Nov 9, 2004 16:51 UTC (Tue) by forthy (guest, #1525) [Link] (1 responses)

You can always go out of the way of trademark bombs by renaming the
software. So you can distribute it. You just have to think about a new
name. Is that a real limitation? I don't think so.

TeX mandates it, where TeX has two parts: the architecture-independent
ones, and the patches to make it run; the patches can change as needed.
The artistic license AFAIK also mandates a rename of a modified version.
Rename means anything that's different, i.e. pdftex clearly shows that
this is not Don Knuth's TeX. From a trademark point of view, pdftex could
be a violation.

Trademarks: A threat to free software's freedom? (NewsForge)

Posted Nov 11, 2004 14:12 UTC (Thu) by jschrod (subscriber, #1646) [Link]

No, pdftex (and e-TeX and ML-TeX and ...) is especially the right way to handle the TeX trademark. If one changes TeX in a way that goes beyond environment adaptions (and those allowed places are marked explicitely in the source), then one has to rename TeX. Putting a prefix in front of "TeX" is a valid way to do that, that was both cleared with AMS (the trademark holder) and DEK (as author). I have personally been in discussions with DEK on that topic, this is no second hand information.

In fact, from the TeX Users' Groups point of view, naming modified systems by prefixing "TeX" is the best way to do it. It shows that one still is `connected' to the TeX community.

Joachim
(active TeXie since more than 20 years, DANTE founding member)