Slashdot Mirror
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.
At Groklaw they've got a pretty clear writeup as to everything behind it.
So this means, that Linux is not so free after all uh?
Maybe Linus thought of a new proffit plan:
1. Post a crappy kernel in Usenet and say it is free
as in freedom
2. Wait until everybody uses it
3. Enforce trademarks
4. Proffit
Ubuntu is an African word meaning 'I can't configure Debian'
When I received the letter re Linux it quite honestly scared the daylights out of me. There was this letter that started out saying "this is a notice, not a letter of demand" but then it goes on talking about moderately large sums of money and potential legal fees.
/execute/ on linux too (so linux was listed as a "compatible OS".
What was doubly annoying though was that the letter appeared to be sent out without checking to see if the recipient was applicable. None of the services or products that I had on my WWW site used the word "linux" in them, they simply happen to be able to
I still consider the email to be bordering very close to spam.
Next time, a registered letter in the post after each site is checked for relevance would be a far more reputable manner of distribution.
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.
After all, some of the things said about the lawyer involved in this case were less than civilised or polite, and indeed a lot of posters had him mixed up with someone else of a similiar name. So, anyone willing to retract what they said?
It costs about $100 per TVLinux show ( tapes, food, equipment), all paid by one person. TVLinux just wants to inform the TV public about open source and Linux. Do I drop 2-3 shows to pay for a "MARK". I think the rate should be $20-$50 for very small projects.
TVLinux
It helps to show that you've made a good faith effort in defending your trademark if you have documentation showing how you've licensed the trademark, and if you've gone after people who have not licensed that trademark.
If Linus does nothing, Microsoft could call the next version of Windows Linux (not that I believe that would happen), and nobody could do a thing about it. Knowing the Patent Office, Microsoft would then be granted the Linux trademark, and would charge $10 per copy... Chaos would ensue, etc.
Free as in Speech, as long as you don't use our Trademark.
But a lot of open source licenses have exactly this restriction, like the Apache License
And lots of others too, mainly extending from the time when Open Source was driven from universities Berkely, MIT who didn't want their 'Trademark' abused.
[% slash_sig_val.text %]
Actually the fees are detailed here
I'll tell you more about this once I receive the money.
-- the Open Sauce king
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.
why not just ask for $1
Because setting up, administrating and defending a trademark are not free. You have to cover the actual cost. Or are you suggesting that Linus should pay out of his own pocket the expenses involved for dealing with commercial entities using his trademark.
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
Maddog? I hate that name. I hate it, you hear? Nobody calls me "Maddog", especially not some duded-up, egg-sucking gutter trash.
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.
Xbox reviews.. We think they're funny.
BTW, PJ on GrokLaw has an interesting piece on this issue.
As I understand the matter, Linus gets the massive sum of $0 from Linux. From this enormous war chest, he has to spend money on lawyers and C&D letters defending the use of the registered trade name; if he doesn't defend it, the trademark is lost, and anyone can use the name for any purpose they like, good or bad (as, for example, a hypothetical Microsoft Linux that had nothing to do with real Linux and just served to fragment the community).
Clearly, there is good reason for SOMEONE to protect the use of the Linux name, and this takes money. The numbers I've seen for the fees being charged to license the name for trade use do not appear unreasonable (and if you're using a Linux product someone else produced, you don't pay anything, plus there are the aforementioned fair-use exceptions), the folks the money goes to are an independent foundation that only manages the trade mark (nobody is being enriched by it), and there doesn't seem to be any other viable alternative if the trademark is to be protected from misuse.
With this in mind, I don't find Linus' actions the least bit disturbing or unreasonable.
"My strength is as the strength of ten men, for I am wired to the eyeballs on espresso."
[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...
I propose we use the term Jimux.
I hope that after I die the one word people use to describe me is "resurrected."
LMI and Maddog have been, according to the Groklaw article, EXPLICITLY authorized to do this.
And your entire position on "eclipsing the Linux brand" is completely irrelevant to Linus, I would believe, because it is not the BRAND that he cares about WHEN we are talking about the CODE. It is only the BRAND he cares about when we are talking about the NAME as used by commercial entities.
I believe that as long as the code is GPL and derived from Linux code, he doesn't care what it ultimately ends up being called, as long as someone isn't producing something that ISN'T Linux code and calling it Linux.
The entire point of this is to prevent people from turning out something that is NOT LINUX CODE and calling it Linux.
The revenue letters are to get some companies to support the trademark protection effort, which, as the Groklaw article points out, is a necessary effort to prevent the dilution of the name Linux, which would allow people to produce NON-LINUX-DERIVED products and call them Linux.
If you HAVE Linux code and you call it Brandix, it's irrelevant. First, because people will simply call it Brandix Linux. Secondly, because it is still Linux code.
Knoppix is Linux code, does not use the Linux name, and nobody (that I know of) misunderstands what it is, nor does Linus AFAIK insist that it pay a trademark fee.
If you create a Linux distro, and give it away, AFAIK you don't have to pay the trademark fee - you only have to refer to its origin as "LinuxCircleR", the trademark symbol. If you derive revenue from that distro, then you need to pay the trademark fee so that Linus and the LMI can demonstrate in court that they control that trademark.
I could be wrong about whether other free distros need to pay the fee - someone correct me about this if that is the case. In any event, a free distro would be considered a non-profit according to the fee scale, and the fee would be $200, then - which would only affect one-man distros who are too poor to pay it.
So how is that in any way different from your scenario? It's already happened and nobody cares. And it has had absolutely no effect on the Linux name except to protect it from people like Microsoft.
Personally, I find the whole thing unfortunate that it has to be done, but I'm an anarchist, so that's irrelevant.
Richard Steven Hack - This sig is TOO GODDAMN SHORT TO DO ANYTHING USEFUL WITH! MORONS!