Debian Questions Trademark Policy

An anonymous reader writes "The OSS/developer community at large is paying more attention to the trademark issue, especially since Linus Torvalds bid to trademark the name 'Linux' in Australia failed recently. Branden Robinson, Debian's project leader, says the current trademark policy needs updating to ensure it has the appropriate level of protection against legal challenges. Robinson said there are various questions that project members must address when deciding how to change the policy. These include whether Debian Linux should have a trademark at all, and whether the trademark can be used to penalize those who 'prey upon' the community."

Comments

Has it happened yet?

[Crixus]

Have ANY of these important linux questions been answered in a court yet? i.e. How enforcable is the GPL, and IS "linux" a trademark?

Re:Has it happened yet?

[Bios_Hakr]

Or your code is declared Public Domain and everyone gets to use it with no license. Really, it could go either way. Since the intent of the GPL is to allow people to freely use your code, then a judge might see it as identical to PD.

Re:Has it happened yet?

[rm69990]

I very highly doubt that. Copyright law allows for a balance of how works are distributed. Copyright law by default is very restrictive. The whole point of copyright licenses is to loosen those restrictions. The authors of GPL'd code have essentially said "I own the copyright to this code. I own the exclusive right to this code. HOWEVER, I will allow you to do a, b, c, d and e as long as you abide by f, g, h and i.

There is absolutely NOTHING in case law to support the fact that if you loosen your restrictions too much you lose your copyright. Of course, if there are any laws like this or caselaw like this and you would like to prove me wrong, please do so.

To say that if a license is found to be invalid that the code it covers would go into the public domain is ridiculous. You have obviously been listening to SCO's and Microsoft's lawyers a little too much. If Microsoft's Shared Source license is found to be invalid, will Windows be put in the public domain? If so, please inform them, as obviously them nor I are aware of any clause or case law which would support your theory.

If anything, BSD licensed code would go first, not the GPL. When Novell/USL sued the University of California over BSD and later faced a possible copyright infringement suit for not complying with the BSD license (which is way, way, way more permissive than the GPL), they quickly settled and even paid the University's legal fees. You should inform them that they were in-fact wrong about copyright laws work, and that that code is in-fact public domain.

Re:Has it happened yet?

[mpe]

Or your code is declared Public Domain and everyone gets to use it with no license.

This was one of SCO's arguments. Which dosn't actually appear to have any standing in either statute or case law anywhere on the planet. If a court were to rule a distribution licence "invalid" then the standard provisions of copyright apply. Thus it would be pointless for any party to even bring a suit to attempt to do this, they'd have nothing to gain.

Really, it could go either way. Since the intent of the GPL is to allow people to freely use your code, then a judge might see it as identical to PD.

Whilst a judge may have the power to reassign copyrights. Between parties in a lawsuit they most likely do not have the power to destroy them.

Re:Has it happened yet?

[mpe]

I very highly doubt that. Copyright law allows for a balance of how works are distributed. Copyright law by default is very restrictive. The whole point of copyright licenses is to loosen those restrictions.

Copyright says that you need the permission of the copyright holder in order to make and distribute copies.

The authors of GPL'd code have essentially said "I own the copyright to this code. I own the exclusive right to this code. HOWEVER, I will allow you to do a, b, c, d and e as long as you abide by f, g, h and i.

Having a published licence is an advantage to third parties, since they know what terms and conditions the copyright holder will grant permission to copy and distribute. Rather than having to negotiate permission with the copyright holder. It is also an advantage to the copyright holders, since they do not have to negotiate terms and conditions with every third party who might want to make and distribute copies of their work(s).
Copyright law gives copyright holders a great deal of choice as to terms and conditions. (Including using an already existing set of terms and conditions, such as the GPL.) About the only exception would be if they required some illegal action as a condition.

To say that if a license is found to be invalid that the code it covers would go into the public domain is ridiculous. You have obviously been listening to SCO's and Microsoft's lawyers a little too much.

In some cases SCO's argument appears to be that simply by their disagreeing with a licence the work is in the Public Domain.

Responsibility

[Kawahee]

It's not up to the open source community to look after their own trademarks and stuff like that. There should already be initiatives for non-for-profit or (cyber)community-minded groups like the OSS community to get a hold of trademarks for non-for-profit reasons. I live in Australia, and I think we've got fair(ish) copyright laws, but not something like this. Does anyone live in a country that has this sort of system/law?

Re:Trademark

[nudeatom]

I dont want to start a flamewar, but surely "Linux" is more distinctive than "Windows", "Apple", "McDonalds" etc etc

Re:See Also...

[linhux]

Actually, if you read the mail (and you seem to know Swedish, so you could), you'll see that the poster claims that the logo in question is identified as a rotated Debian logo even when compared pixel-by-pixel. Simply using the same Illustrator brush shouldn't produce that kind of similarity, should it?

Nobody "called it wrong"

[schon]

the Australians called it wrong this time

No, they didn't. The problem was that the person who filed the application was incompetant.

Besides the fact that the application referred to Wikipedia (which has been discussed to death,) the reference described "Linux" as a generic phrase for an operating system kernel - which is precisely your argument.

Now, you and I know what Linux referrs to, but the trademark examiners don't, and it shows from their response:

"The entry from the Wikipedia encyclopaedia indicates 'Linux is a computer operating system and its kernel' ... demonstrating generic use rather than trademark use."

So, the way the application was written, it sounded (to the examiners) that the term "Linux" was in fact a generic term, rather than refering to what you and I know as Linux. If the application pointed to a source that said "Linux is the computer operating system originally developed by Linus Torvalds, and currently being maintained by millions of volunteers around the world", then things might have turned out differently.

Your blame is misplaced.

Really?

[hummassa]

Really, it could go either way. Since the intent of the GPL is to allow people to freely use your code, then a judge might see it as identical to PD.
Not in my jurisdiction. (and I am/was a paralegal)
Nor in any jurisdiction with civil law and a copyright law similar to what is dictated by the Geneva convention. In those countries, the ONLY things in public domain are those (a) that do not involve creative work and (b) those whose copyrights terms expired.
And to boot, the intent of the GPL is NOT "to allow people to freely use your code", it is to allow that your code stays free all the time -- and this can be determined by any judge who takes ten minutes to read the GPL. Or one minute to read its preamble.