On Thu, Jul 14, 2011 at 11:26:02PM +0200, Joerg Jaspert wrote: > We feel that it is infeasible for Debian to be in complete compliance > with the current GNOME trademark license. In our strict reading of this > license, the only way to be in full compliance would require us to > perform actions such as renaming packages in the form of > GNOME™-control-center. This extreme example would conflict directly > with Debian policy on the use of non-ascii lowercase characters in > package names as well as being technically inadvisable. Therefore, as > long as we are using GNOME marks, we are likely to be in some way > violating their current trademark license agreement. The problem here is not that Debian does not comply with the trademark license. The problem here is that someone made the mistake of *ASKING* about the trademark license. Debian is not *trading* on any of the marks in question, and there is no reason under the sun for us to give a damn about the status of any trademark claims until a trademark holder specifically makes it a legal question by sending a cease and desist letter or filing a lawsuit. It doesn't matter one bit whether we're complying with the terms of the trademark license agreement *if we aren't doing anything that requires licensing of a trademark*. Now, trademarks are sensitive things for upstreams; they wouldn't have gone to the trouble of securing a mark if they didn't care about protecting it from dilution. We (broadly) feel the same way about the Debian mark. So since we're really on the same side as the upstreams and want to get along with them, it makes sense for us to take into consideration requests they might have of us. But this is not a question of freeness or legality, only of maintaining good relations with upstream. > The safest thing for us to do would seem to be to terminate all use of the > GNOME marks, and essentially rebranding the software, as was done in the > case for firefox/iceweasel. This is a perverse definition of "safe". There is no real risk associated with nominative and functional use of the marks (such as in package names, directory names, and the like). > We therefore think that the best way forward would be to make a best > effort to correct any specific cases which they point out to us as > problematic misuse of their marks. But we have to be careful not to end > up with a Debian specific solution (due to DFSG #8). DFSG #8 is not an issue. DFSG #4 allows authors to require changed versions of their software to be distributed under a different name. If the upstream makes special allowances for Debian to use the name for modified versions, this doesn't fail the DFSG, because everyone still has the required rights when using the package. > The case of the image which was created combining the GNOME foot and the > Debian swirl seem unquestionably in violation of their trademark, It is not "unquestionably" in violation of their trademark. Trademarks are *always* fuzzy things, and there are *always* questions about whether something is a violation - questions that can only ever be settled definitively in court. It's perfectly fine for Debian to decide that, because the GNOME mark holders *believe* it is infringing, we prefer to ask them for an explicit license just to be safe. > especially when you realize that the creator of this image was using the > foot in this case with the specific intention of referencing GNOME. > Until we can come up with some agreement with the trademark owners about > using such a mark, Debian should stop distributing similar material. There is no precedent for requiring Debian packages to avoid trademark infringement as a condition of inclusion in the archive. I am very much opposed to anything that would require Debian to remove potentially trademark infringing logos from packages "until we have agreement with the trademark owners". This is entirely the wrong way around - we should always assume that our use is permitted wrt trademark law unless either a) a court ruling determines otherwise, or b) we decide it's not in our interest to fight a lawsuit over the matter and as a project decide to stop using the mark. In no event should the ftpmasters be preemptively deciding that such works should be excluded from the archive pending an agreement unless so directed by Debian's counsel in the course of litigation. > As a general comment, we feel like this problem is an unfortunate > one. This situation is one where we have people trying to limit user > freedom via software which is in Debian, going against Debian's core > tenets. We understand they are doing so to defend Free Software related > marks, but that doesn't solve the underlying problem. It may also be the > case that from Debian's point of view, the developer body as a whole > needs to take a formal stand by means of a GR on the general issue of > how to resolve the tension among DFSG principles and trademark > licenses. This would clearly resolve this issue once and for all, > especially given that this is the second major instance of a similar > issue. This case is not congruous to the firefox case. In that case, there was a copyright license on the logo which enforced trademark-like restrictions which as a result did not meet the DFSG. We obviously need a free copyright license for the works that we distribute, and since we didn't have one the necessary course of action was to remove that logo from the source. And since that constituted a very visible change to the software itself, it was reasonable to question whether it should continue to be called firefox under the circumstances. For GNOME, whose logos are all distributed under free licenses, there is no such compulsion to avoid their inclusion, no matter what license GNOME offers for the trademark represented by those logos, and we should not be scared into removing them (or the GNOME name) for no reason. -- Steve Langasek Give me a lever long enough and a Free OS Debian Developer to set it on, and I can move the world. Ubuntu Developer http://www.debian.org/ slangasek@ubuntu.com vorlon@debian.org
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