On Sun, 2020-11-08 at 22:41 +0100, Jérémy Lal wrote:
> Using toy story names for debian releases surely isn't free from any
> Debian/pixar license ?
> Or is it ?
IANAL either, but I did a research project on IP law in the US, and our
usage of the names are almost certainly fine, as explained by Paul Sutton.
But I'm going to go off on a detailed tangent explaining the why anyways,
because I can, and this is something we all should be aware of, and
because I have another research project to procrastinate on. So if you're
at all interested, read on.
There are four general types of Intellectual Property (IP) law: trade
secret, trademark, patent, and copyright. Now, the only one that applies
here would be trademark law, but I am going to talk about them all,
because there are a ton of common misconceptions about them.
- Patent law protections are the hardest to get, involving an extensive
application, review and publishing process, and have the shortest terms,
being at most 20 years. Further, they only apply to scientific
inventions: such as a car engine carburetor or a metal refinement process.
Software has been patented, but because patents only apply to *design*,
not *implementation*, and because the idea must be novel and non-obvious,
they aren't USUALLY a terribly significant issue. If one comes up,
however, it's a nightmare to fight: see GNOME vs Rothschild for an
example.
- Trade secret laws can apply to any useful information, and don't need to
be registered (actually, they can't be). However, for protection to
apply, it needs to be, well, secret: extensive steps must be taken to
protect it. Coca-Cola's exact flavoring recipe would qualify. Microsoft's
precise source code probably would, but anything discovered via reverse-
engineering (including disassembling) wouldn't. Not a big issue, unless
you're in the habit of espionage.
- Copyright laws are the ones dealt with by free software the most. They
(theoretically) apply to any artistic work, which apparently includes
computer software, and (depending on the results of Oracle v. Google) the
design of an API. They last basically forever (okay, only a century), are
very far reaching, and are applied automatically. However, they only
apply to a large work: a bash one-liner might get protected, but a single
word certainly isn't. When we talk about licenses, this is usually what
we mean: most free licenses say nothing about granting rights to patents
(GPLv3 is the only one I can think of), and explicitly refuse to give
rights for trademarks (more on that in a sec).
- Trademark law regards the 'mark' you use to 'trade'. They don't require
registration to apply, and can apply to anything from a particular word or
phrase to a color[^1]. I'll talk a lot about it, because it's not as
clear cut as copyright, where any use of the material in anything not a
parody is probably forbidden. It is unique because it is directly
benefits consumers, by ensuring that they can trust their products.
Trademark law is what protects against knockoff safety googles being
marketed as the real thing. It's what would apply to the usage of names
from a movie.
[^1]: UPS has a trademark on the exact shade of brown used on their
delivery vans. Yes, that is a real thing, that they spent a lot of
money to get. Don't paint your delivery trucks brown.
First of all, a trademark can only be infringed if customers are confused.
Generally, that means that they are limited to a certain "field of
endeavor", as Paul Sutton says. Further, the two marks must be used in
the same area: so there can be two trademark-protected pizza shops with
the same name, provided they are a hundred or more miles apart. Most
marks that we really care about are global, so the 'field of endeavor'
defense is a lot more important. Here is one of the reasons we are safe
from lawsuits regarding the names: they aren't really associated with Toy
Story characters unless used in that context, and even then...
I should mention that *doesn't* apply if the trademark is so "well known"
that a customer might think they were still related. For instance, I
can't sell a "Nike" line of sofas, because even though Nike only shoes,
they have such a wide reach that a customer might think my sofas were
Nike's actual products, even given the radically different environment.
Now, if we replace "Nike" with, say, "New Balance", the protections go
down a lot. Not just because New Balance is a much smaller shoe brand,
and not as well-known, but because New Balance is a generic phrase.
Whereas "Nike" is a little-known Greek deity, "New Balance" is a pair of
common english words: it's a lot harder to show that they have been
associated with your brand exclusivly, since they are often used on their
own. The protection granted by a trademark is related to how unique and
arbitrary ("distinctive") it is: naming your app "Calendar" gives little
protection, "iCal" a fair bit, and "California" quite a bit.
Trademarks, while they can be applied to any type of identifier, from the
shape of your Coke bottle to the color scheme of UPS, have major
limitations beyond that mentioned above. Using a trademark to refer to
the product, such as when I described coke bottles shapes, is always
allowable, even if its to insult them for financial gain. So is a parody
usage, or any other use that can't be confused for the real thing.
The biggest limit is the fact that trademarks lack a term: rather, they
apply as long as it is associated with your brand. That means that the
trademark must be consistently used, across all branding, for it to remain
valid: 'sitting' on a trademark is simply impossible, since there would be
no association. Similarly, you can't be so succsessful that the term
becomes generic, applying to any similar products (eg, a Xerox or a Band-
Aid). You also must enforce the mark: this is what led to Iceweasal and
the other rebrandings of Mozilla software in Debian. Mozilla worried that
permitting Debian to redistribute their code, applying modifications along
the way, would result in them losing their trademark, since it would no
longer apply soley to their product, but also to its derivatives. That
was, fortunately, sorted out.
So, to conclude, the fact that Disney hasn't sued us already is a good
sign, since we can point to the fact that they probably learned of our use
at some point in the past three decades without suing us as proof that
they Disney have power over the character names. Even though we are using
a ton of those names for various releases, no reasonable person could
think that the Buster release has anything to do with the Toy-Story
character, especially since we call it "Debian Buster" whenever we discuss
it outside of the direct context of releases. Buster is a arbitrary name,
that has nothing to do with software or with movies, so proving
association would be difficult. None of the names are especially well-
known: if we'd named the 1.1 release Buzz Lightyear, there could be a
case, but "Buzz" on it's own could refer to a hair cut, a sound, an
astronaut, ect. That means that it wouldn't apply outside of the direct
field of endeavor.
Of course, the real kicker is the fact that, according to
https://www.gerbenlaw.com/trademarks/entertainment/Disney/
, Disney currently has 2118 enforceable trademarks, from characters like
Tinkerbell to movie names like Maleficent. The Toy Story characters don't
make that list (though some rides named after them do). Since enforcing
an unregistered trademark on a product that isnt an obvious knockoff is
impossible, and they are not planning any sort of new Toy Story to show
that they are still using the character names, we are completely safe.
Wow! You made it to the end of my rant. Congrats! And thank you.
Calum
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