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Re: Mozilla Foundation Trademarks

On 6/19/05, Eric Dorland <eric.dorland@mail.mcgill.ca> wrote:
> * Michael K. Edwards (m.k.edwards@gmail.com) wrote:
> > I wouldn't say "accept" it, I would say "acknowledge" the safety zone
> > offered unilaterally by the Mozilla Foundation, and as a courtesy to
> > them make some effort to stay comfortably within it while continuing
> > to ship under the Mozilla names.  Their trademark policy is surely
> > less draconian than, say, Red Hat's, and we aren't going around
> > purging the RedHat Package Manager from Debian.
> I think you're playing word games now. Even if this is a unilateral
> "gift" we still need to decide if we want it or not.

Of course; and as the maintainer, you are going to be the one making
that call.  I'm just chary of using words like "offer" and "accept"
because they suggest that we are in the contract zone.  I think (I
could be wrong; IANAL) that, in the free software arena, it's actually
better for both sides for the trademark holder to say:

"We aren't exactly licensing all and sundry to manufacture products
under our brand.  Our product line includes both the source code and
the 'official' binaries; we are of the opinion that third parties who
follow these guidelines when building and distributing their own
binaries are merely re-packaging our source code product (under
standards like Coty v. Prestonettes in the US and X, Y, and Z
elsewhere) and using our trademarks descriptively.

"We reserve the right to decide unilaterally that someone either has
created a product of their own (to which our trademark can't be
applied without license) or isn't doing an adequate job of QA in the
course of re-packaging.  But if and when that happens, we're going to
follow the steps outlined here to try to bring them into voluntary
compliance before we demand that they either accept a formal license
and traditional oversight procedures or cease to apply our trademarks
to their modified version of our product."

>From what I've read, that's as open a policy as a trademark holder can
offer and still retain control of the trademark in the long run.  I
may be overstating here how far the Mozilla Foundation is willing to
go; but if a modus vivendi can be reached in which the only thing
special about Debian is that the guidelines more or less reflect the
maintainer's actual practice, I think that sits more comfortably with
DFSG #8 than a license per se.

> > If the offer from six months ago still stands (which, to my
> > recollection and in my non-lawyer view, read like a unilateral "safety
> > zone" rather than a trademark license as such), that's extraordinarily
> > accommodating on MoFo's part.  It's a square deal from people with a
> > pretty good reputation for square deals.  They deserve better from
> > Debian than to have their flagship products obscured by a rename when
> > they haven't done anything nasty to anyone yet.
> What reputation are you referring to? Not that I necessarily disagree,
> but what are you basing that assessment on?

Their rebranding isn't special for Netscape/AOL and other corporate
partners; they've worked very hard to make it accessible to third
parties without any need for explicit cooperation with them.  They're
going through the agony of relicensing their entire code base under
MPL/LGPL/GPL so that GPL projects can cherry-pick at source code
level.  They're good citizens in W3C standards space even when the
committee decisions go against them (e. g., XUL vs. XForms).  I don't
know the details of their CA certificate handling, but at least they
_have_ a policy and respond constructively to criticism of it.  And
Mitch Kapor and the rest of the MoFo board have a lot of street cred
as individuals.

> > The FSF has, at best, completely failed to offer leadership with
> > respect to free software and trademarks, as the MySQL case and the Red
> > Hat / UnixCD mess have shown.  I think it would be rather gratifying
> > if Debian could step in to fill the void.  And it would be kind of
> > nice to have a workable modus vivendi to exhibit if and when the Linux
> > Mark Institute (or the OpenSSL team or the PHP folks or Red Hat or
> > MySQL) comes knocking.
> I do have to agree that guidance when it comes to trademark situations
> is sorely lacking. There doesn't seem to be that consistent a
> viewpoint with Debian either unfortunately.

It's a sticky wicket.  Free software enthusiasts (among whom I count
myself) don't like systems that exacerbate second-class-citizenship
among those whose motivations aren't principally commercial.  Nowadays
everyone's a publisher, and the paperwork overhead of copyright has
dropped near to zero (until you try to enforce it); but not everyone
is a marketer, and that's what trademarks are about.  I think it's
possible to have a personal-freedom-compatible trademark policy, but
it's not trivial, and the first few tries are bound to have their
discontents.  Doesn't mean it's not worth trying, though.

- Michael

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