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Australian Linux Trademark Holds Water
Seft writes "The Inquirer is running a story in response to the recent Linux trademark news in Australia which was previously covered on Slashdot. The story was dismissed as a hoax by many, but now it seems that Linus Torvalds is dead serious." John 'Maddog' Hall stated for the article that the move was not about getting a slice of anyone's action but purely to protect the quality of products that utilize the Linux name.
Linus backs trademark charge, says 'Maddog'
By Sam Varghese
August 19, 2005 - 1:48PM
Trademarking the Linux name and charging for its commercial use world-wide is supported by its creator Linus Torvalds, a senior Linux community figure from the US says.
A recent letter sent to nearly 90 Australian companies, demanding payment of a sub-licence fee that can range from $A200 to $A5000 for use of the Linux name, caused considerable confusion and prompted speculation the fee was a scam.
But in an attempt to clarify the situation in Australia, Jon 'Maddog' Hall, the executive director of Linux International in the US, said a community organisation called Linux Australia had been nominated to handle the trademark issue in this country.
The Linux Mark Institute (LMI) handles trademark issues in the US. In other countries it nominates local bodies to look after things, he said.
Linux is a popular, free open-source operating system that runs on a number of hardware platforms, including PCs and Macintoshes.
Hall said while Torvalds and the LMI did not object to people using the Linux name for legitimate purposes, there were some who tried to limit or block other peoples' business by creating bogus trademark registries.
"We are not blocking anyone's business. If there is a single business out there that is blocked by this issue, please have them contact me," he said.
When asked how open source advocates could fight against the legitimising of software patents and yet charge fees for a trademark, Mr Hall said you couldn't create a product covered by a patent unless you licences it; with a trademark you could change the name and still sell the product.
"You certainly could create and distribute a useful product without having 'Linux' in the trademarked name," he said. "Debian comes to mind. Red Hat Software is another."
Linux Australia president Jonathan Oxer said while patents could stop people from doing the same thing, such as writing a piece of software that was functionally equivalent, trademarks regulated people who wanted to use an identity. "In effect, it's a measure to prevent identity theft," he said.
"Patents can be anti-competitive (or at least anti-productive) in the software world by preventing other people competing on a level playing field. They are specifically intended to grant a limited monopoly."
Oxer said trademarks did not prevent fair competition. "They don't stop anyone else going into business and doing the exact same thing as an existing company. What they do prevent is someone stealing the name of an existing product or company and then using that name to their benefit."
Hall said while the LMI could, in some cases, refuse to grant a sub-licence for use of the name, Torvalds had the final say.
He is the owner of the mark, it is his name. But my experience has been that Linus views this as him holding the mark for the community," he said.
The highest fee in the US is $US5000. "While to some the $US5000 fee may seem like a lot to pay on $US1 million of revenue, we point out that it is only on the revenue generated by the trademarked product, not the whole company (unless the whole company is called 'Linux XXXXXXX'), and there is no upper limit to the revenue that could be made," Hall said.
"We are not trying to limit the use of the name Linux. We are only asking that people help us protect the quality of the Linux name, and ultimately their trademark by both giving proper attribution (everyone) and by helping us fund the cause (the actual sub-licence holders)," he said.
He has. If he doesn't protect the name "Linux", it can be used in anything, regardless of whether it has anything to do with the kernel. That means linux-gay-pron, linux-warez, et al. Such is the nature of trademarks.
I assume you're talking about this:
0 92029989
http://www.groklaw.net/article.php?story=20050816
Very interesting read, IMHO.
Slackware
Check here
No, there it was about patents.
Geez, people, learn to distinguish Copyright - Patent - Trademark - Trade Secret! It's not that hard and pretty important if you want to discuss stuff. I thought cognitive sciences has shown that most people can keep ca. 5 items in their mind at any time.
"When I first heard Daydream Nation it quite frankly scared the living shit out of me." -- Matthew Stearns
Well, Linux is still free apparently, just not calling it that. It does seem a little odd coming from F/OSS, but it's not unprecedented to own the name but not the content.
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Does anybody have a link to something a little more informative?
A number of people have attempted to clarify this, including on Slashdot. I'll post the full text http://lists.linux.org.au/archives/linux-aus/2005- August/msg00084.html, since most people seem to dislike reading linked articles.
Subject: Re: Quick press enquiry re LinuxMark enforcement
From: Jon maddog Hall
Date: Wed, 17 Aug 2005 09:25:04 -0400
To: "David Braue"
Cc: maddog@li.org
David,
Your story is quite accurate, LAI is acting in Australia on behalf of LMI, and this is not a "scam".
Since 1995, when an unfortunate incident in the United States showed us that the world is not made of altruistic people and companies, Linux International has been defending the Linux Trademark. At that time an entity had obtained a US trademark on the word "Linux", and was trying to obtain twenty-five percent of the REVENUES of companies that had the word "Linux" in their name, or in their product names. Instead of all the member companies fighting this battle individually, Linux International fought it and won. Unfortunately it cost us a lot of money to do this, despite the pro bono efforts of Gerry Davis, of the law firm of Davis and Schroeder.
Linux International has been defending the Linux Trademark for the world, which due to the costs of registering and obtaining International Trade Marks is VERY expensive. Linux International has spent over 300,000 USD to do this over the years. LI is a non-profit and does not have very much revenue, so some of this money has come from my own personal checkbook. While I can not say how much money I have spent on defending the mark per se, I can tell you that I have spent about 250,000 USD of my own money in keeping LI alive. I am not looking for medals or a chest to pin them on. I am only stating this to show people that this is not a "scam", nor is anyone making any money off this other than the international legal and trademark community, and I am sure that they are necessary and justifiable fees. Certainly Jeremy Malcolm has seemed to be above board and conscientious in all of our dealings with him, as has Jonathan Oxer and the rest of the fine people at LAI.
After a while the board of Linux International recognized the advantage of forming a separate non-profit, the Linux Mark Institute (LMI). We need LMI to be self-funding, and following trademark laws in the 200 countries of the world is very expensive. In addition to the normal issues of a company obtaining a trademark of their own product, using their own name, we have issues such as:
o "Who owns the right to use 'Linux'"
o "Who (therefore) has the right to the broad name 'Linux University'?"
o "Can there be more than one "Linux University? If so, what should its name be?"
o "If I call my company 'Linux Experts', does this mean that I am the only group of 'Linux Experts' worldwide?....shouldn't everyone come to me because I called myself 'Linux Experts'?"
as well as the issues of people who wish to use the name in bad ways (as a pornography attractor or on items confusing to the Linux market).
We have tried to make the licensing as unobtrusive as possible, tailored to the amounts of money that people might be making off the use of the mark, and with an eye to keeping the cost to non-profits and user groups as low as possible. We also have to re-license the name periodically so we can protect against "name squatting" (ala URLs) and defunct entities who no longer need the name they registered.
The trademark laws of the world were not created in the days of the World Wide Web, or even the Internet, where unscrupulous people can take advantage of a good name for a good idea and create havoc for people who want to start legitimate industry in their territory under a mark that is registered in some other coun
"I've got more toys than Teruhisa Kitahara."
How about Groklaw? They have a writeup with pretty much everything there is to know.
It's amazing how uninformed so many slashdot posts on this are. Or maybe it's not amazing. If I interpret this correctly, the fee is $5000 per million revenue on a product that uses the trademark. If I don't sell $1million, I don't pay $5000. Furthermore, this has absolutely no effect on Free Software. As long as you comply with the GPL license, you can rename the Linux kernel and do whatever you want with it.
Linux is a very important identity for the software industry, and I'm glad someone out there is doing something to protect it from being vandalized and abused.
The Linux trademark is simply being protected. For example, if you name your business, or try to trademark the name "Linux World" then you are asked to pay the fee. This fee is an acknowledgement that Linus owns the "Linux" trademark. This will allow the term "Linux" to stay open, and not be confused by someone's trademark of "Linux Smack Daddy LLC."
Get a free ipod.
It's only using the word 'Linux' in your company or product name that isn't free.
By simple logic:
1. If the Linux(tm) mark is not looked after, it will become junk.
2. "Looking after a mark" means getting a trademark and enforcing it.
3. Enforcing a trademark means preventing others from abusing it (using it for contradictory purposes, trying to trademark it themselves, etc.) All these abuses have happened with Linux.
4. This kind of enforcement costs money, and often quite a large amount of money.
5. It's normal that the people who use the Linux mark in their business should pay this, proportionally. They benefit from a well-protected mark.
Lincensing and paying money for things we're used to getting for free is a bit sad, but in the real world. people do mean and unkind things when money is involved. This means: if you like Linux, if your business depends on it, and if you want the word to mean anything at all, you should be willing to pay for this.
Ultimately, though, Linux will become (IMO) the commodity OS just as TCP/IP became the commodity networking protocol. Within 5-10 years, no-one will pay much attention to this.
From this perspective, asking licensing fees, even small ones, will slow down adoption. It creates one more barrier for people who have Linux-related business ideas.
What I would have done is to license the mark and pursue those who abuse it, but allow free licensing for those who comply with certain criteria - especially non-commercial open source projects.
My blog
Oh for crying out loud! This is abiout PREOTECTING the trademark! if they don't do this, then anyone could use the name "Linux" for just about anything! Like it was said, Microsoft could rename "Vista" to "Linux" if they wanted to. And what if MS then copyrighted the word "Linux", and started charging Red Hat, Novell etc. money for using the word? If you do not protect your trademark, you will lose it.
Linus (nor his representatives) is NOT asking for any money from these companies. The letter mentions that they MAY be required to pay in the future, but it's not asking any money now, nor does that mean that they will be expected to pay in the future! It merely mentions something that may or may not happen in the future.
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Actually, reading deeper, you might fall under "Fair Use."
From Groklaw again:
Examples of Fair Use.
If you are a journalist interested in writing articles that include the term "Linux," you do not need a sublicense. If you are printing up pencils, stenciling T-shirts, or distributing coffee cups with a legend on them like "Linux®is the greatest!" or "Even my Mother uses Linux®!" this is normally considered "fair use".
But I'm not a legal expert, so you might want to invetigate on your own.
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Excellent point:
Speaking of abusing someone's good name, Jeremy Malcolm, the attorney in charge of sending out the licensing letters in Australia, has a long history of voluntary and pro bono work for the Internet and open source communities. This includes serving on the boards of the Internet Society of Australia, the Western Australian Internet Association, Electronic Frontiers Australia, the Society of Linux Professionals (WA) and the Australian Public Access Network Association. He also received the Community Award in the 2004 AUUG Australian Open Source Awards for outstanding contribution to the understanding of para-technical and legal issues surrounding open source within the Australian context. He isn't a Scientologist and never has been, by the way, although he believes in freedom of religion for all.
Don't you hate it when the mainstream media doesn't bother to check their facts? Why do what they do, then? The community stands for ethics, does it not?
- Groklaw article
As much as we techies usually investigate things, we kind of dropped the ball on this one.
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If I remember correctly, Firefox has this restriction, because people were modifying the source code (introducing bugs), compiling it, and calling the result "Firefox". Naturally, when those bugs start affecting people, they go bother Mozilla.org instead of the people truly responsible for the bugs.
It seems to me that trademarks are completely compatible with Free Software - it's one thing to share software freely, fork it, modify it, etc, but it's another thing altogether to cause problems for the original project because you pass your hacked versions off as the originals.
Bogtha Bogtha Bogtha
No *inux will be left here. At all.
You only need to pay the fee if you are using the word "Linux" in your own trademark. If you were a non-profit wishing to distribute Magada Linux, you could either trademark "Magada Linux" and pay the fee or trademark "Magada" and not pay the fee.
You can still market Magada Linux either way.
"I've got more toys than Teruhisa Kitahara."
In other words, not-for-profits are NOT going to be shaken down, they can continue to use, comment on, write about, and give away Linux all the want. But if they want to create a for-profit business that will use "Linux" in the name, trademark laws come into play and they will need to pony up money. Simple solution: Call it Knoppix, or the like. Problem solved.
I've used linux for years at home and M$ at work since 3.11. How can anyone be into Linux and not know about this change in 1995? 10 years ago! The only valid gripes are the bottom rung price. $200 is too steep of a hill for many 3rd world volunteer groups!
From Linuxmark.org:
If you or someone you represent wishes to use as a trademark some variation of a mark or trade name including the element "Linux", please submit the online application for a license. LMI will review your application and let you know within a few weeks whether your proposed use of the Linux mark has been approved. If your application is approved, LMI will forward to you a signature page for execution. LMI reserves the right to deny permission to uses deemed inimical to the Linux community as a whole.
In the sole judgment of Linus Torvalds and his advisors, sublicensed marks must not preclude others from reasonable variations of the Linux mark and should not confuse the public into believing that the particular user and its mark or trade name are somehow an exclusive source of a Linux® product. For this reason, we have declined in the past to sublicense proposed marks that would suggest such exclusivity, and/or would preclude other reasonable uses of the mark and other variations thereof. If in some unusual circumstances the proposed scope of use of the mark is not acceptable but the proposed use may be easily modified and approved, LMI will return your application with the proposed changes included.
Never trust a man wearing a coat and tie!
You've got it wrong. Whether you pay the money or not, you can't misuse the name. Microsoft can't put out a version of Windows called "MS Linux" without Linus' permission. If it's software, and not Linux, he can tell them not to use the term "Linux" with it. How much kernel code they have to use would be something of a question, but they'd run afoul of the GPL anyway.
Charging the nominal fee is just to fund the enforcement effort.
They're just protecting the name "Linux" from genuine abuse. Sending it to everyone with "Linux" on their web site is like the notice stamped into my crowbar that says, "WEAR EYE PROTECTION". It's just legal CYA. If they didn't do that, they could lose the trademark, which would be a disaster for Linux.
And sending email is the only cost-effective way to do it.
sigs, as if you care.
Slackware - first line of their webiste says "The Slackware Linux Project"
Debian - The 2nd line of their says "Debian GNU/Linux provides more than a pure OS"
Gentoo - First line of their website "We produce Gentoo Linux, a special flavor of Linux"
Ubuntu - Their website IS "ubuntulinux.org"
Suse - First line of their website says "SUSE LINUX Professional 9.3"
Fedora - Ok you've got me here. No where on their site can I find the word Linux in their name. However Red Hat's treatment of CentOS should be enough of a worry to not use something they fully sponor and use for alpha testing of Red Hat Enterprise Linux.
So we're still without a free OS again.
IMHO using "Linux" on a product that's running Linux is fair use
"Fair use" only applies to copyright. Trademarks work exactly as you describe: you cannot creating a product in the same market (e.g. computer software) with the term Linux. Period. It doesn't matter if its "a context that's not associated with Linux" or not.
[Background: I've been reading /. for many years, and never felt the need to register and comment... until today].
Are the above posts really representative of the opions of most of us? It seems to me I've seldom seen so many confused people...
- "the story is just wrong", "this is just FUD"
Well, it's not... hasn't enough material been presented to convince you?
- "what is really going on here?"
This is a simple trademark defense. [The simplest possible explanation is the most likely one.]
- "blatant misuse of power"
Ehm, no... see above.
- "The mark has been in use for a very long time without any intervention by the said trademark holder."
Do you get the part that you must defend your trademark or you can lose it?
"Also $5000 does not garantee that their is a quality product."
The fee pays for the quality of the trademark, not the product.
"why not liscense for $1."
Because the license fees need to be reasonable. When push comes to shove, your defense of the trademark needs to be defended in court. Token effort is likely not going to be deemed sufficient.
'nuff said...
> It's just like "pwn" except 1/8 as hilarious.
1/8 of 0 is still 0.
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Arrrgh! About 100 people have already explained that you don't have to license anything in order to use, support or even mention Linux. You just cannot use the word Linux in your own company or product name.
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