Re: firefox -> iceweasel package is probably not legal
On Wednesday 06 December 2006 15:05, Don Armstrong wrote:
> On Wed, 06 Dec 2006, Sean Kellogg wrote:
> > Trademark law does not care about Debian's technical limitations.
>
> It does only insofar as we are using the trademark in the context of a
> technical construct.
>
> > The functionality doctrine is about real world functional
> > limitations imposed on tradedress.
>
> That's precisely what is at issue here; you're attempting to argue
> that there is no real world functional limitation imposed by calling
> the package something other than firefox, and that is quite clearly
> not the case. The transition package can be called _nothing else_ and
> still function in the same manner.
>
> > As this is neither tradedress nor a real world functional
> > limitation, it is incorrect to continually invoke this doctrine in
> > hope that you will convince us otherwise.
>
> The fact there is no other way to allow for an automated upgrade
> process obviates this entire line of argument.
>
> Your argument is akin to allowing someone to trademark a specific
> shape of a light bulb which coveys a functional advantage due to the
> interaction of the lightbulb and lamp, and then requiring them to
> redesign the lamp because the design of the lamp brought about a
> contrived situtation where the bulb design was favorable.
The difference between the lightbulb and the debian package, in my mind, is
that one is a system of distribution created by Debian for its own purpose.
The other is the physical reality of the lightbulb. One is mandated by
Debian's choice, the other by the laws of physics. Most importantly, Debian
*can* distribute Iceweasel without ever mentioning Firefox, the lightbulb
maker could not. Debian just doesn't want to be bothered with the hassel of
having to build the brand of Iceweasel, so it appears to have decided to
co-opt the Firefox name.
> > Same goes for Debian Policy. It doesn't limited libability, it just
> > means the policy authorizes the violation of other's trademarks.
>
> The invocation of policy is purely to explain why the package must
> Depends: and not Recommends: iceweasel; I can conceive of no
> convincing theory that explains why trademark law would treat a
> Depends: and Recommends: differently anyway.
Really? A Depends automatically gets the package... and since the package
includes that symlink, it seems to make all the difference in the world. A
Recommends just says "hey... we think you ought to get this package." To
the average Debian user, the introduction of Iceweasel and the removal of
Firefox was transparent and unnoticeable. Great for Debian... but it didn't
convey to the user that the products are different.
> That there may be a possiblity for someone to bring action under such
> a theory and possibly prevail is admited; but baring any further
> action by the Mozilla Foundation I see no reason why we should
> eviscerate the upgrade functionality at this point in time.
I agree. This is all just hypothetical and postulating. But then again, I
say the same thing with regards to the various DFSG test that are applied to
licenses that make their way to d-l and people seem to be really concerned
about the hypothetical. I guess I don't understand the difference.
> That said, after the release of etch, there's no reason to keep the
> transition package around; I assume that the maintainers were planing
> on removing it after that point.
And that point would certainly be helpful if its ever litigated... but it
doesn't change the fact that all the debian users who got firefox during the
past X years it is available are now running iceweasel and largely unaware of
the difference or distinction.
--
Sean Kellogg
e: skellogg@u.washington.edu
w: http://blog.probonogeek.org/
So, let go
...Jump in
...Oh well, what you waiting for?
...it's all right
...'Cause there's beauty in the breakdown
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