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FOSS Community Criticizes SFLC over SFC Trademark War (lunduke.com)
Earlier this month Bruce Perens notified us that "the Software Freedom Law Center, a Linux-Foundation supported organization, has asked USPTO to cancel the trademark of the name of the Software Freedom Conservancy, an organization that assists and represents Free Software/Open Source developers." Now Slashdot reader curcuru -- director of the Apache Software Foundation -- writes:
No matter how you look at it, this kind of lawsuit is a loss for software freedom and open source in general, since this kind of USPTO trademark petition (like a lawsuit) will tie up both organizations, leaving less time and funds to help FOSS projects. There's clearly more to the issue than the trademark issue; the many community members' blog posts make that clear.
GNOME executive director Neil McGovern
Apache Software Foundation director Shane Curcuru
Google security developer Matthew Garrett
Linux industry journalist Bryan Lunduke
The key point in this USPTO lawsuit is that the legal aspects aren't actually important. What's most important is the community reaction: since SFLC and Conservancy are both non-profits who help serve free software communities, it's the community perception of what organizations to look to for help that matters. SFLC's attempt to take away the Conservancy's very name doesn't look good for them.
Bryan Lunduke's video covers the whole case, including his investigation into the two organizations and their funding.
GNOME executive director Neil McGovern
Apache Software Foundation director Shane Curcuru
Google security developer Matthew Garrett
Linux industry journalist Bryan Lunduke
The key point in this USPTO lawsuit is that the legal aspects aren't actually important. What's most important is the community reaction: since SFLC and Conservancy are both non-profits who help serve free software communities, it's the community perception of what organizations to look to for help that matters. SFLC's attempt to take away the Conservancy's very name doesn't look good for them.
Bryan Lunduke's video covers the whole case, including his investigation into the two organizations and their funding.
The /. summary should explain, or at the very least expand, all of the goddamn acronyms it's using.
Really, the whole community? That's not what I'm seeing.
In 1970, Dirk sued Stig, Nasty and Barry. Barry sued Dirk, Nasty and Stig. Nasty sued Barry, Dirk and Stig, and Stig sued himself, accidentally. It was the beginning of a golden era for lawyers.
As of right now, the used are FOSS, SFLC, SFC, and USPTO. The summary spells out "Software Freedom Law Center", "Software Freedom Conservancy", and FOSS paraphrased as "Free Software/Open Source". This leaves USPTO, which context implies is an organization with power to cancel a trademark. In fact, trademark is the T in United States Patent and Trademark Office.
With half credit for the imperfect expansion of FOSS, it's batting .625.
It's interesting to note that the Software Freedom Law Center helped create the Software Freedom Conservancy. SFLC staff probably came up with the name "Software Freedom Conservancy", so they'd have a tough case to make in court now.
In trademark law, one must either defend your name, or lose rights to it to the extent that you didn't defend it. "Defend" could include granting explicit permission for someone else to use it. You can't just ignore someone using a variant of your name for years, then sue them later, after they've already established a reputation under that name.
It seems SFLC has a VERY weak case unless they have a written agreement with SFC tying the use of the name to specific contract terms, such as what activities SFC was created to do. I don't think they have such a contract. Even if they do, their more likely remedy would be suing for breach of contract.
Judean People's Front. We're the People's Front of Judea! Judean People's Front. Cawk.
I am a fan of open source, and typically publish my personal software under AGPL3+. Now, that said, I think the free and open source software (FOSS) community has been hiding from the implications of the increasingly rabid interpretations of its philosophy for some time, and now the chickens are starting to come home to roost—although I admit the parent suing the child for using the family name is an odd first visible symptom.
One of the criticisms of the "viral" GNU Public License (GPL) when it was first introduced was that a third party could use the GPL to force proprietary software into the open source world: using a GPL compiler, for example, "infect" the code with the GPL; or releasing a program running on this Linux thing would mean you had to hand out your source code. Nonsense, said the technologists. And yet that is exactly what Moglen's current statements require: that the Linux kernel (GPL2, all agree) can be made to use the ZFS file system (CDDL, all agree) somehow relicenses ZFS under GPL2—even if the copyright owner disagrees. Say what?
GPL was an attempt to establish a bastion behind which free software could flourish; and flourish it has. The GPL even won the open source/free software wars: the phrase "open source" originally meant you could look at the source and see what it did, and now the phrase means you can look at, copy, modify, and redistribute the source. That is what was originally called "software libre," or "free software," and Stallman used to rail about how "open source" wasn't enough, you needed "software libre." Well, they're the same now; he won.
As long as we don't mix licenses, all is well. But once variant licenses, or licensed and proprietary meet, then the majority of the open source community says it's whatever the Free Software Foundation (FSF) wants that day. Proprietary software can't use open source subroutines (except it's okay if the subroutine is exposed through a public API (except it's back to not okay if the subroutine with the public API is in user space even if the GPL code is just an alternative implementation specified via a configuration file (except it's back to okay if the user space subroutine is part of an assemblage of subroutines that calls itself an operating environment like GTK# or NuttX (except it's back to not okay in situations to be revealed next week)))). But open source software can use all the proprietary software it wants: want to link to a proprietary library? That's not a problem, even if you can't distribute the code because you don't have it. GPL code can use BSD code and magically exempt itself from the need to distribute GPL code (here's the code, but it's not GPL, sorry about that), but BSD code cannot use GPL code: bad, bad BSD code. It's somehow a GPL violation not to be able to distribute a complete build environment for the application. What? I really need to give you a Windows license so you can build my code? How are you fixed for spit?
The idea is wonderful. The creeping "all software is free software, all free software is mine mine mine" is a little worrisome.
This is oft-quoted but incorrect. You do not lose your trademark by failure to defend it. You lose it if your trademark becomes generic. So, arguably Xerox could have difficulty enforcing their trademark if the defendants can prove that it has become synonymous with photocopying.
You do not have to go after all possible infringers in court. That would make trademarks horribly expensive and impractical to own.
Also, a trademark is for a specific category of products or services. So, Linux is a trademark of Linus Torvalds for compter software, but there is also a Linux Detergent (I kid you not) and it does not infringe on the software Linux because it is in a different trademark category.
Bruce Perens.
Software Freedom Conservancy has at least 46 member projects for whom they hold property as a corporation, provide a corporate veil against liability for the project and its develoers, provide legal advice, and act as a tax-exempt organization on behalf of the projects (a 501(c)3) so that the projects can receive donations which the donors write off of their income to reduce their overall tax load by a portion of the donation.
This is a big deal for the projects concerned.
So, where are those projects? Why do I not yet see the project's official comments on behalf of SFC, but only a few personal comments from projects that are not SFC members? Why haven't they grouped together and all signed a letter to the community in support of SFC?
Please wake up, folks.
Bruce Perens.
I can't disagree with your analysis, but what do I know? That being said, I had sort of automatically given the moral high ground to SFC until I saw this little tidbit from the SFLC blog:
We have tried repeatedly for almost three years to get a meeting with Karen and Bradley in order to discuss this and other claims we have concerning their and the Conservancy’s activities. In all that time, they have never once agreed to meet with us to hear and discuss our concerns. They have presented transparently dilatory responses, such as being “too busy,” or even “always too busy” when we asked them to set their own time. Sometimes we have not been offered so much as the courtesy of a refusal.
The SFC had posted this:
We were surprised by this spurious action. In our eleven years of coexistence, SFLC has raised no concerns nor complaints about our name, nor ever asked us to change it. We filed our formal answer to SFLC’s action yesterday.
It's a bit hard to bring up these issues if you are refused meetings. What they say may be "technically" true, but if they'd been refusing to have meetings, they had to have a pretty good idea of what those meetings would be about. What a mess. It makes them both look pretty bad at this point, to be honest.
Irony: Agile development has too much intertia to be abandoned now.
The problem with organizations that pursue virtue are disagreements on exactly what is virtuous. I'll stick with the pursuit of money - more is better.
The community should withdraw all support from the SFLC, support the SFC solely instead, and distance themselves from any organization continuing to sponsor the SFLC.
I think the problem will work itself out.
The SFConservancy's reply is B. Kuhn's reply and is a classical example of non-denial denial. The SFLawCenter was trying for years to talk to them over a wide range of issues and not simply about a name.
They coulnd't talk because Kuhn was soo busy. Well, I guess he will have to find the time to appear in court and answers a few questions. It smells of bastards as far as I'm concerned.
There is a good answer to this here, which I'm surprised isn't linked to from the main article:
http://www.rants.org/2017/11/c...
Notably:
"These paragraphs are disingenuous in several ways.
First, Conservancy has consistently been willing to meet, but merely insisted as a ground rule that the conduct of the meeting must be professional and civil. This was both responsible and a smart move on their part. The meeting isnâ(TM)t going to be productive if it involves shouting and insults, and they had reason to believe that was a real possibility.
If you donâ(TM)t know the personalities involved here, you might not understand why such a ground rule would be necessary. Let me simply say this: I have known Conservancyâ(TM)s Executive Director, Karen Sandler, for a decade now, and worked very closely with her on a number of efforts, some of which involved contentious counterparties. I have never seen Karen lose her temper nor engage in personal insults or ad hominem arguments, not even with parties who frankly deserved it. She has consistently gone out of her way to keep dialogue constructive, to treat people with respect, and wherever possible to find solutions that work for everyone, even in very difficult conversations. If Karen is unwilling to meet with someone without getting agreement on ground rules, there must be a very serious reason for that.
So when SFLC says âoethey have never once agreed to meet with usâ, I read that as âoeConservancy wasnâ(TM)t willing to waste time on a pointless face-to-face meeting on SFLCâ(TM)s home turf with no written agenda and with SFLC refusing to explicitly commit to basic ground rules of civil discourseâ. If I were running Conservancy, I would have made exactly the same decision."
Please read this:
http://www.rants.org/2017/11/c...
for a possible answer to your question. I'm surprised this isn't linked to from the main article.
Full disclosure, I'm on the Board of Directors of SFC.
The SFC claimed they were surprised when clearly they weren't. That statement was a lie. They lied right off the bat. Everything in the response you posted is just bullshit to try cover up the fact that they told such an obvious lie.
I'm curious, why would slashdot users, who are careful about what we click to the point of often not even clicking on the story, click on a link to a place whose domain name implies it is unserious content?
Having not read it, and only seen your appeal to read it, I've now become suspicious of you.
What a mess. It makes them both look pretty bad at this point, to be honest.
I don't really comprehend that. To me it seems obvious that it makes the people refusing to meet look bad, and it makes the other people look like they tried to avoid this unfortunate result.
Maybe I'm the only person on slashdot who believes in seeking Justice where there are systems in place to achieve it. But I doubt it.
If they're always too busy to meet with people who helped found their group, and who they potentially have ongoing entanglements with, then they're also always too busy to be doing charitable work and should not be squatting on a trademark! If you stop doing business with a trademark, you lose it. It has to be in use.
Remember, charities are owned by the community, they're controlled by their board but they are not owned. That is why they get tax benefits. If they did things to be sued over, by definition they're not providing the good faith oversight that is required of board members.
That sounds like a lot of slanderous statements to me! Accusing people of yelling at you and acting unprofessionally... at a meeting that hasn't been held?! That is offensive both to my sense of civics, and to my understanding of what words mean.
If you attend a meeting and somebody is yelling at you, just leave. Then you can say, "We did meet, but we had to end the meeting early for [reasons]." And it would be honest. But when the meeting didn't happen, you certainly don't get to make accusations like that. Especially when you haven't yet been willing to certify that you've stopped beating your wife!
I don't know either of these parties, so all I have to go on is what I'm reading now (thx for the link - I read the entire post). You can take this as the observations of a neutral outsider.
I think I might consider the refusal to meet a tactical error on the part of the SFC, because it makes them appear unreasonable. Setting preconditions on a meeting and requiring participants to sign documents promising to "be nice" seems fairly insulting to me, even if someone considers it warranted. I would never sign such documents myself on principle, because the implication is that I need to be held to civility by a piece of paper with my signature on it.
Is it not a possibility to simply walk out of a meeting if it erupts into "shouting and insults"? If the SFC had at least met with SFLC once, and talks had broken down due to less-than-civil behavior, that would have made for a powerful argument in SFC's favor.
On the other hand, there may have been no point to such a meeting except for posturing, if the SFLC was intent on forcing the SFC to change their name, and the SFC had no intention of doing so. As such, they may have been bound to end up here regardless. I will say that the threatening language the SFLC used appeared to try to make organizations associated with the SFC nervous about future legal troubles, and such tactics certainly don't paint them in a very favorable light.
Irony: Agile development has too much intertia to be abandoned now.
It seems SFLC has a VERY weak case unless ...
Since corporations can't file lawsuits pro-se, they're required to hire a lawyer to do it, this seems to be a very weak default assessment.
More logical would be something like, "if I think they would require X and Y in order to have a strong case, and they did indeed file the case, and it isn't a case that would reasonably involve any type of cash settlement, then most likely X and Y are implied."
I would at least want to some reason to believe X and Y are a certain value before believing that they imply an outcome.
>Since corporations can't file lawsuits pro-se, they're required to hire a lawyer to do it
The Software Freedom LAW Center is a bunch of lawyers. Any of them can represent the Center, or indeed they can HIRE themselves, putting donation money in their own pocket.
Genericide is one of four different ways to lose your trademark rights. The others are laches, abandonment, and excessive licensing. Three of them can result in complete loss of all rights, laches results in loss of rights to the degree that complainant failed to defend them in a timely fashion.
Laches is probably the best fit here. As I said originally, with laches you lose For recent high-profile cases see Fitbug v. Fitbit, No. 13-1418, 2015 U.S. Dist. LEXIS 8775 (N.D. Cal. Jan. 26, 2015) and Eat Right Foods, Ltd v. Whole Foods Mkt., Inc., No. C13-2174, 2015 U.S. Dist. LEXIS 63578 (W.D. Wash. May 14, 2015). In each, the trademark holder failed to file suit quickly after they became aware of infringement, and therefore they were barred from enforcing their rights at all.
Abandonment meant is mainly focused on complainant not using the mark in commerce for a period of time, but use include licensing. Actively requiring other users to enter into a licensing agreement will prevent abandonment.
Excessive licensing occurs when a rightsholder allows too many other people to use the mark, even with a license agreement. If Wendy's allowed just any hamburger joint to use their Wendy's trademark for a fee of $100/month, with no other control of hamburger quality etc, they would lose the mark because the Wendy's would no longer indicate a specific hamburger restaurant concept with a specific menu, specific quality standards, etc.
A few words went missing in my post. That should say:
"As I originally stated, with laches you lose the right to enforce to the degree that you failed to police it."
For example, if a university allows local businesses to print and sell T-shirts using the university logo, and doesn't take any action to stop them over a number of years, they'd lose the right to enforce it on T-shirts printed by the local businesses. They wouldn't lose all trademark rights.
Here SFLC not only ALLOWED the SFC to use the name, officers of SFLC helped *choose* the name for SFC to use and did the trademark registration. This is like if you helped write the Debian Social Contract, borrowing wording from the Open Source Definition, then you turned around and sued Debian for copyright infringement on the Definition - suing them for doing something you helped them do.
We have tried repeatedly for almost three years to get a meeting with Karen and Bradley in order to discuss this and other claims we have concerning their and the Conservancy’s activities.
This is a red herring. Requesting a meeting is not how you go about asserting a trademark.
Typically a letter is sent stating your position. The opposing party can agree, disagree, request to discuss terms, or ignore you... Where you go from there varies, but you always start by giving notice in writing that there is an issue to be resolved.
"You want to know how to help your kids? Leave them the fuck alone." -George Carlin
Just for context, Jeremy is one of the major developers of Samba, and Samba is one of the projects referred to.
davecb@spamcop.net
> Not all infringements ever meet that standard and thus must be enforced early.
The first half is delay, so that applies to all cases under discussion. The second part is, to use your words " a valuable business" - so only in cases that matter.
In this particular instance, there are at least three clear grounds on which FSC should win, all related to the same concept - Eben Moglen, Executive Director of SFLC, is the one complaining, but he himself was on the board of SFC when it launched, when it was created with that name in 2006. Eleven years later, it's a bit late for him to decide his own actions were illegally harming his SFLC and sue his own creation over the name he and his friends selected for it. Laches, estoppel, etc.
Separately, trademarks are not allowed to be "merely descriptive". You can trademark "Mustang" and "Cobra" for cars because those words have nothing to do with cars. You can't trademark "Fast" as a car name because it describes the car. "Software Freedom Law Center" sounds pretty descriptive to me, it describes in plain ordinary English exactly what the organization does. SFLC may be foolish to start talking about the validity of trademarks. On the other hand:
conservancy (Merriam Webster) :a board regulating fisheries and navigation in a river or port :an organization or area designated to conserve and protect natural resources
1 British
2
Since SFC neither regulates boats nor protects natural resources, their name may not be merely descriptive, and therefore a stronger trademark than software freedom law center.
> So, I am still at a loss why Eben Moglen, law teacher at Columbia, would bring this proceeding.
Yeah it seems silly. I don't know why he's doing this, but I do know that there has been bad blood between he and SFC for a couple years now. I also know that people, including really smart people, do really stupid things behind emotion. He may be thinking "I created the Conservancy, heck I came up with the name, and now you guys are doing things I hate. I made the organization, you should do things my way, the way I created the organization to do them!". That would be understandable, but he/they created both SDLC and SFC as separate legal entities from any of the people. Just because Eben created the program doesn't mean they need to do things his way, and this may be his attempt to "take his ball and go home", where the phrase "Software Freedom" is the ball.
It's also entirely possible that Even and/or cooler heads at SFLC don't expect to actually win. This may be either a bargaining chip or simply a strike at SFC. It's certainly a pain in the ass for SFC to deal with, even if they win in the end.
Look at the first letter of each- is this a gaggle of groups or what?
The title in this article, full of acronyms, reminds me of something I saw in the web days ago:
"GAS 2U!
DQMOT, BSF IDK WCA 2TXT W/LOA.
IYO, ITS EZ &PDQ... IDTS.
IMHO, ARE =ADIH. TBH, FUBAR &2M2H. GIAR, PLZ! KISS. .02
RX"