* Shachar Shemesh (debian@shemesh.biz) wrote: > I am not a lawyer. > > I am a consultant trying to understand the world he lives in, and as > such, studied the applicable law a little. > > Eric Dorland wrote: > > >So, I don't feel I can accept the agreement offered by the Mozilla > >Foundation, because of my objections to it and because I don't feel > >empowered to make an agreement like this on behalf of Debian. If > >however, the DPL wished to step forward and broker such a deal I would > >not oppose (he is our elected representative for the project after > >all). > > > > > >If the DPL does not step forward to make some sort of agreement, what > >will I do? Renaming seems to be a very unpopular option. So I believe > >my best option is to ignore the trademark policy altogether and have > >the Mozilla Foundation tell us when they want us to stop using their > >marks. > > > It should just be noted that such a move does have consequences as well. > This is not a no-op move. The no-op move would have been to rename the > package. Renaming the package is hardly a no-op. > >Now I originally said we shouldn't do this, but it does have > >certain advantages. First of all, I think we can ignore the trademark > >policy because it is only a policy, is not distributed with the > >software (although having said that, that might change) and it is my > >understanding that in most jurisdictions the trademark holder has to > >police use of their trademark anyway. > > > > > Quite like the GPL, it boils down to whether we are required, by law, to > have the MoFo's approval. If we are, then the policy holds true for us. > If we are not, then not signing an agreement with them is a sane move. > > >Now the advantage of doing this is foremost to not have to rename > >Firefox unless the MoFo ask us to. There is also protects us from > >looking like the bad guy in the case of a rename (eg the /. headline > >will read "MoFo tells Debian not to use 'Firefox'" rather than "Free > >software nuts stop using 'Firefox'"). > > > What it does not protect us from, however, is a lawsuit. I'm not saying > MoFo would sue, but if they would, it would put the Debian project under > complete legal liability. Normally, one can claim "innocent > infringement", which means you are not liable for the infringement done > prior to becoming aware of the problem. As a side note, this holds true > for patents as well. In this case, however, we cannot claim that we did > not know, as this has been discussed on a public forum. They will have no grounds for a lawsuit. They know exactly what we're doing, we told them. All they have to do is tell us to rename the package, and I will comply as quickly as I possibly can. > >Of course the other advantage is > >not having to make an agreement that I think compromises our > >principles. > > > >Of course the disadvantage would be that by ignoring the issue we're > >implicitly agreeing to the MoFo's proposal. > > > No, it's quite worse. By ignoring the issue, we are forcing MoFo to > either sue us or lose the trademark. That's the way trademark law works. > Just like we can no longer claim we didn't know these things were > trademarked, they will not be able to claim they didn't know Debian was > using their trademarks without an agreement. This means that if they > don't do something legal to us now, they will never be able to do > anything regarding their trademark to anyone else ever. In effect, not > signing the agreement and keeping the name means that we are forcing > them to sue or lose. They will not sue us. It would make no sense, when asking us will accomplish the same thing. > I'm afraid the only way of not taking an active stance on the issue of > whether free software should have registered trademarks is to rename our > version of Firefox. If we do not sign and not rename, we are taking an > anti-trademark stance by forcing MoFo to take legal action against us > (which will hurt them dearly as well), or to drop the Trademark idea. If > we do sign the contract we're implicitly saying that we think that the > MoFo course of action is the right way to go. > > To put another way, once MoFo decided to issue a trademark, they have no > choice BUT to ask Debian to sign such an agreement. Debian is too widely > used for MoFo to claim they didn't know that we are infringing (and if > they can't claim that, trademark law says they cannot enforce their > trademark against anyone else), and they likely don't WANT us to stop > using the name "Firefox". Both because they likely really do want the > software to be free, and because that weakens the trademark, not > strengthens it. There is no reason for MoFo to compel us to make this sort of agreement. I don't see any reason they cannot include in their trademark policy more permissive uses of the mark. Other projects have done similar things. > Two important notes: > 1. The above is my understanding of trademark law, and does not include > my opinion as for what we SHOULD do. Not being a Debian Developer (yet), > I don't think my opinion on the matter matter that much. In any case, > this is more down to personal beliefs than actual reasoned discussion. > 2. I am not a lawyer, so the above may be a distorted view of the real > state of affairs. The correct thing to do with anything I write on the > matter is to take it to a real lawyer, and ask his/her opinion about it. -- Eric Dorland <eric.dorland@mail.mcgill.ca> ICQ: #61138586, Jabber: hooty@jabber.com 1024D/16D970C6 097C 4861 9934 27A0 8E1C 2B0A 61E9 8ECF 16D9 70C6 -----BEGIN GEEK CODE BLOCK----- Version: 3.12 GCS d- s++: a-- C+++ UL+++ P++ L++ E++ W++ N+ o K- w+ O? M++ V-- PS+ PE Y+ PGP++ t++ 5++ X+ R tv++ b+++ DI+ D+ G e h! r- y+ ------END GEEK CODE BLOCK------
Attachment:
signature.asc
Description: Digital signature