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Killustrator Author Required to Pay Two Grand
This
article
on heise-online reveals some more information on the
KIllustrator dispute.
If my understanding of the German article is correct, the lawyer firm of Reinhard Skuhra Weise &
Partner has issued a cease and desist letter to the University of
Magdeburg, employer of KIllustrator's author, Dr Kai-Uwe Sattler.
The cease-and-desist letter complains that kIllustrator's advertising damages
Adobe's brand-name and damages the reputation of Adobe's product. The lawyers
required that the University sign the cease and desist letter, destroy the
kIllustrator-package, name every KIllustrator user, and disclose the profit
they made from it. Finally the lawyers sent a bill for 4686 DM (German Marks, approximately 2000 dollars) not counting value added tax. Should the University not sign,
the lawyers will sue for a million DM (approximately 400 thousand dollars) .
Kai-Uwe Sattler is happy to change the name, but doesn't want to pay
this bill. When he suggested changing the name, the lawyers rejected his proposal saying "Do you know any lawyer who works for nothing?" The lawyers insist on
payment. Sattler regrets that Adobe never contacted him before calling upon
lawyers to ask him to change the name of his software.
Udo Skuhra, who works at the lawyers' firm, refused to talk to heise-online
about the cease-and-desist letter, and refused to state whether Adobe asked his law-firm to issue it.
Update: 07/04 03:30 PM by S :Joerg from Germany sent us a small correction: Apparently the lawyers want any packaging of KIllustrator destroyed, not the project itself. Perhaps they think it comes in a box?
http://bitey.net/mirrors/killustrator-0.7.2.tar.g
- A.P.
--
"Remember when the U.S. had a drug problem, and then we declared a War On Drugs, and now you can't buy drugs anymore?"
While I agree in principle, I don't think I can agree that "Illustrator" is generic when it comes to naming software simply because it's a word that existed in the language already--and it seems to me that's ultimately the case you're making.
I'd submit that Illustrator isn't a "generic" description. Generic description would be "Adobe Vector Drawing Program"--or even "Adobe Draw," which, indeed, has precedents similar to the ones you cite: Mac Draw, Corel Draw, Lisa Draw, Cricket Draw (for those of you with long, long memories). But "Adobe Illustrator" seems to be in the category of names like "Canvas" (Deneba), "Freehand" (Macromedia) and "Expression" (MetaCreations, now reverted back to Creature House). All of those words were, and are, relatively common English words, too--but they don't refer to a class of computer graphics programs. They refer to specific computer graphics programs, all of which have been in production for a decade or longer.
While I don't condone Adobe's handling of this (or the approach of allowing lawyers to handle it this way for them, if that's what happened), this is not a case of a company just laying claim to a common word and trying to sue anyone who uses it. This is a case of a company, or their agents, seeing another program in the same field as theirs using a name which is deliberately similar to the name that refers specifically and only to their product in that field.
San Jose Corporate Headquarters
Adobe Systems Incorporated
Tel: 408-536-6000
and remember, be courteous, and follow the advocacy howto. be polite when you ask if they know what their lawyers are upto
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I post links to stuff here
Obviously, the lawyers haven't got the faintest clue what their doing (other than the usual protection racket sort of thing).
Offer, instead of the flat $2000, to settle for license to keep the KIllustrator name for 30% of the profits from it. :-)
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Hacker Public Radio is our Friend
It's definitely too bad about the lawyers demanding $2K, as well as all those other insane concessions, but that's something they're going to have to work out between themselves. The fellow simply should have known better to begin with.
This should come as a major wake-up call to all the people who make packages with functions and names similar to trademarked programs--the KIllustrators and FreeMWares of the world: Don't mess with companies who have more money and more lawyers than you. You can complain all you want about how incredibly unfair it is, and deeply wrong, and boycott and send nasty letters all you want to, but at the end of the day, they'll win. And don't look to the Electronic Frontier Foundation or the ACLU to help defend you, either--your freedom of speech does not include the freedom to transgress others' property. DeCSS is somewhat defensible due to the ambiguous nature of the DCMA versus the public's right of fair use, but this is quite a different matter--there is no DeCSS-like legal ambiguity about trading on someone else's name to try to popularize your own product.
--
Editor Emeritus and Senior Writer, TeleRead.org
Hey
In Germany, we have what is called an 'Abmahnung'. This is basically a 'Warning', and can be issued by pretty much anyone who operates a law office of any kind. This 'Abmahnung' is part of the German law system; if you spot any kind of infringement on copyright / trademark or even trade law, you can issue a warning to the infringing party, and send them a bill for your costs. This is extremely common, and a whole law industry subsides on it. Usually, the infringement warnings can be quite justified, but sometimes people get overzealous in their quest for cash.
An example is if you use what's called 'improper' advertisements - in Germany, you're not allowed to use unfair adverts; 'unfair' is considered anything comparative, e.g. you're not allowed to say 'Our car has a higher top speed, better acceleration, and a lower price than the BMW 325i, the Volvo S60, and the Mercedes 230.' If you did, you'd get an 'Abmahnung', even if BMW, Volvo, and DaimlerChrysler didn't sue immediately.
So yeah, it's a sucky system. German society is very free and open in most respects (what'd be considered porn (tits, penises, etc) can be seen on normal network TV and nude beaches are very common, but the BUSINESS system and laws are stuck in the middle ages, biased heavily towards big business. (a bit like Japan, to be honest)
Sorry if this veered off towards explaining German business practices and society too much, but it's important to understand what's going on. Somebody's spotted a trademark infringement and pounced on it. And make no mistake about it: if the guy sues, he'll lose. Hell, so would I if I made a spreadsheet app called KExcel and distributed it, often as part of for-pay packages. (like Linux distros) To 'excel' is a simple word, and can't be trademarked, but in respect to spreadsheets, it can be protected. Brand dilution. It sucks, but that's how it works.
Alex T-B
St Andrews
The catch is, those firms do have no authority to do this, and the "fines" are entirely for their own pockets. Moreover, often if it is not even sure whether the "violation" took place at all: those threatening letters are often sent months after the alleged facts, when the shopkeeper has already re-arranged his display window since long, and can no longer determine/remember whether this or that article was correctly labeled or not.
Scams like this are regularly featured on police information TV programs such as "Vorsicht Falle, Nepper, Schlepper, Bauernfänger". If I were kIllustrator's author, I'd contact Adobe, and ask them whether this "laywer's firm" is actually operating in Adobe's authority. Chances are good they aren't.
These guys didn't do their homework, did they?
Everybody's going to jump on board with the Linux side of things here, but let's look at the facts.
Adobe owns the Illustrator name. It's not "Adobe Illustrator", it's "Illustrator". It's been around for ages and while not the best product in my eyes it certainly is better at this point that the K-version.
Regardless of platforms or competing or profits, Adobe owns the name. It's not a matter of "huzzah huzzah intellectual property" or anything. Names have been trademarked and defended for years. You don't see people cleaning the window with "Kwindex" or wiping their noses with "Gnokleenex" do you? NO!, because the base name is owned by a company.
As for the lawyers demanding to be paid, they should go fuck themselves. If the author's willing to change the name, he has already made the correct choice. Now, the lawyers have to do the right thing in turn and just leave it be.
Obviously they won't. Somebody go set up a Paypal account or something, maybe the author could do that, and we could contribute a buck each if neccessary.
When the lawyers complain, he can say, 'keuros', euros, aren't they the same thing ?
"The lawyers required that the University sign the cease and desist letter"
OK, this makes perfect sense. Adobe has a right to defend their trademark. To this point, I have no problem understanding them, or agreeing with them.
"destroy the kIllustrator-package"
This almost certainly comes from a background of commercial software, where one person controls the source. What do they mean by destroy? Here are three possibilities I can think of off the top of my head:
1) KIllustrator is not distributed by the University or author under that name. This is reasonable, if this is what they mean, but I don't think it is the most probable interpertation.
2) All copies of the software in the hands of the challenged parties are destroyed. Harsh, but also possible. In fact, likely.
3) Wipe the software from the face of the earth. Absolutely impossible. Under the GPL license, people can create derivative works from versions already existing, unless I have misunderstood the GPL. Even the authors themselves do not have the power to retract that freedom, once the code is licensed under GPL. Even if Adobe were to acquire copyright to the codebase, it wouldn't stop the versions already existing from forking into new projects. Which they almost certainly will, under a name Adobe can do nothing about.
(Incidently, those of you who worry about the fact that forking is allowe to occur in open source software, this is an ideal case illustrating why the risks are worth it.)
"name every KIllustrator user"
Again, absolutely impossible. Every developer who as used the code, and every end user? I'm quite sure no one has the faintest idea who all those people are. Someone needs to explain the concept of anonymous downloads. Also, the software is given away free, under GPL. No one has any right to tell people to stop using it. DISTRIBUTING it under that name, yes, but how can using it be an act of trademark violation? Why do they even care? Can someone who knows more about law please tell me why they are interested? (Not rhetorical - I'd really like to know.)
"and disclose the profit they made from it."
Uh - if you count development time and computer equipment, that's probably a fairly large negative number. Anyway, I doubt it can be calculated except on the presumption that there was revenue from somewhere. What else would lawyers mean? (Again not a rhetorical question.) If that is what they mean these guys have absolutely no clue what or who they are dealing with.
"Finally the lawyers sent a bill for 4686 DM (German Marks, approximately 2000 dollars) not counting value added tax."
I don't understand why this isn't Adobe's bill. If the legal system is set up such that lawyers only make money from stuff like this, it's no wonder we have frivilous lawsuits all over the place. This should be a routine part of their paid job for Adobe, if it's Adobe who wants this action taken. If it's ment to be a warning to others, they need to calm down and consider the possible consequences of this "warning" - namely a buch of open source coders determined to write software which will free them from having to pay money to a company who uses tatics like this as SOP. KIllustrator, even if they kill it, is not the only fish in this ocean. Sodipodi and Sketch come readily to mind. They may not be Illustrator yet, but the concept of "good enough" is not to be underestimated.
"Should the University not sign, the lawyers will sue for a million DM (approximately 400 thousand dollars)."
Please tell me that they would have to show this amount of damage has been done. Considering the attitude the courts displayed when Microsoft held up KOffice as competition, I would think 400,000 in damage is going to be just a bit tough to justify. Of course, I may be overestimating the legal system.
"Kai-Uwe Sattler is happy to change the name, but doesn't want to pay this bill. When he suggested changing the name, the lawyers rejected his proposal saying "Do you know any lawyer who works for nothing?" The lawyers insist on payment."
To nit-pick, I believe sometimes lawyers actually will take a case without pay. (It's rare, but I know someone who was helped in a difficult time in her life buy just such a kind soul.) Of couse that's beside the point, but I thought it worthwhile to call them on it - if they can nitpick, why can't we? Anyway the important part is that their only source of income is implied to be from this kind of thing, and not Adobe directly. Also, the attitude of the developer was not sounded out and apparently makes absolutely no difference. Brrrr.
"Sattler regrets that Adobe never contacted him before calling upon lawyers to ask him to change the name of his software."
I would very much like to know if this was Adobe's intention, or if this is some lawyers who just aren't on a leash. Right or not (and in the trademark matter I believe they have some justifible grounds) they are going to get a huge amount of bad press. They may be indifferent to the free software community at large, but this is a good way to inspire the competition of open source people. They may not be so indifferent if an open source Illustrator clone starts to eat away at market share.
What really worries me, however, is that this sets a precident for other action. Whatever Adobe's intent was, we need to be EXTREMELY careful from now on when naming open source products. If this action is effective, open source opponents *cough*Microsoft*cough* will adopt this as a standard technique. Time to get creative.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
TheFrood
If you say "I'll probably get modded down for this..." then I will mod you down.
First of all, I'd like to look over what they are asking them to do:
destroy the kIllustrator-package
Well, we all know that with respect to the GPL and the people who already possesses the code to KIllustrator, this is like asking the seas not to break.
name every KIllustrator user
And because of the distribution medium, we also know that there is probably no chance of fulfilling this requirement.
disclose the profit they made from it
And we all obviously know that no profit was made from this software. How much money did you pay for KIllustrator on your desktop? That's what I thought.
The *BOTTOM LINE* is that this man, no matter his position, was working for the good of every user that exists. He was creating and maintaining software for free, to be GIVEN AWAY. He wasn't looking for fame, or for fortune. And yet, I see so many people turn a cheek and say 'Oh, but Adobe's product is called Illustrator, so he should pay anyway.' JESUS H. CHRIST. If there weren't people out there like this good man working to produce great software for people who BELIEVE in what I hope all of the people reading this post do, then the open source movement wouldn't be. OK. Granted, he named his FREE software package similar to a commercial counterpart. Like it is the first time. NO, that isn't an excuse. However, I believe that:
a) Adobe could have handled this in a much nicer fashion. The profits off of the platforms that KIllustrator runs on that adobe COULD be making are exactly *ZERO*. I wish to embed this into people's minds, because it is important. Yes, they have a good reason to keep their options open with their trademark, but at this time, what KIllustrator could take from them is absolutely NOTHING. So why not keep it simple????
b) It's been discusses time and time again, but if you, yourself, use any free software, whether at home or at work, and you agree with adobe and it's lawyers on this, you need to start questioning yourself. All I'm trying to say is that good people and good hackers are the ones that work on projects such as these. Dr. Kai-Uwe Sattler is just the front man for these lawyers, but yet so many people that thrive on so much of the work that people like Dr. Kai-Uwe Sattler do, want to turn a cheek on his temporary misfortune in his case. I'm not even saying that this is the first time, because it's not. It happens all too often. He is one of the many GOOD PEOPLE, working in THEIR OWN TIME, for YOUR BENEFIT. For the BENEFIT OF ALL PEOPLE who wish to have the choice. So tell me, when did he become the enemy? I apologize for the rant, but I believe what was said must be said.
Revelations 0:0 - The beginning of the end.
If she had known you could get money for name infringement, she would've gone after the developers of BitchX a long time ago.
Yes, my girlfriend is a BitchX
I wonder if this is what's happened here? If so, I have to tone down my criticism of Adobe in the previous Slashdot about this issue because, well, lawyers are lawyers, and what they don't know about technology issues (like enough to know that a program that cannot run on the same platform as another is clearly not a rival, and moreso, that a client might just have chosen a generic name for their product that could reasonably be said to apply to all the products aimed at the same application) they make up in determination and legal maneuvering.
That's not to say it's good that it's happened: Absolutely it is not. Nor is it to say that Adobe are blameless - in my view, they need to keep a leash on groups that operate in their name. But it does at least explain why Adobe have engaged in an activity so likely to alienate potential customers as apparent high-handed corporate bullying of a clear underdog.
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You are not alone. This is not normal. None of this is normal.
As I recall, in Germany, law firms can independently police certain laws and write "cease and desist letters"; Adobe need not have been involved in this. I believe they can also charge the recipient of those letters for their work.
However, it seems that 4684DM far exceeds their expenses. The law firm seems to use the threat of sueing to achieve compliance in order to recover excessive legal fees for themselves. If I were Sattler, I would write a letter stating that I disagree with their interpretation of trademark law and admit no wrongdoing, but that I am changing the name immediately to avoid further legal harrassment by their lawyers. Then I would separately ask the law firm for an itemized bill for their labor (that's what the money is for, so one can expect a bill). I'd check the work and rates with another lawyer or a consumer agency and pay only what's fair and reasonable (I suspect no more than 100-200DM).
I think if this went to court, the law firm would have a hard time recovering more than reasonable costs for writing the letter. I think any case about the trademark would also be hard to make: "killustrator" is a non-trivial variation on a generic term, it doesn't seem "confusingly similar" to "Adobe Illustrator", and furthermore "killustrator" is not a product that is for sale and therefore may not even infringe. Again, talking to a lawyer should help here, since trademarks like "Adobe Illustrator" may be protected differently in Germany.