Re: complete clone of the debian website
On 2000-06-01 at 13:56 +0200, Wichert Akkerman wrote:
> Previously Joey Hess wrote:
> > http://www.491.org/projets/api/
> Nice. Time to write them a letter I guess. How about something like this:
> We recently became aware of your website at http://www.491.org/projets/api/ .
> Unfortunately your webpages are a copy of the Debian homepage
> (http://www.debian.org) and clearly violates its license in a couple
> of points:
I certainly would not use the term "copy" in this context. There is no
question that their web pages are not a copy. They may be an
infringement, but they are not a copy. Debian needs to be careful.
> * The usage of the Debian Open Use Logo (better known as the swirl) is not
> allowed by its license. Its license states:
* * *
> * The Debian homepage is covered by the Open Publication License (OPL) as found
> on http://www.opencontent.org/openpub/. That license puts some requirements
> on modified versions of the copyrighted material. From section I:
* * *
> We request that you remove the API webpages until they are relicensed
> and updated to resolve these problems.
There are two entirely separate and distinct allegations of infringement
which could be made: trademark and copyright.
A trademark infringement, generally, is based upon the likelihood of
confusion in the totality of circumstances. That is, how likely is
someone familiar with the general appearance of the Debian web page and
its other distinctive characteristics to be fooled into thinking that
there is some affiliation or endorsement relationship between Debian and
API? The misappropriation of a pure trademark, in this case the "swirl,"
makes this far more likely, since it by definition and design has no
purpose other to identify the goods or services of its real owner.
Indeed, such a blatant misappropriation of both the distinctive artistic
components of the Debian web site and the "swirl" graphic might even be
cited as evidence of conscious intent to falsely claim affiliation with
Debian. It is essential to the preservation of a trademark that it be
protected by a license which in general must impose some sort of quality
control; in this case, the central restriction of the license is that it
sets out what may be called "Debian," and the misuse of the distinctive
appearance of the Debian web site, especially of the "swirl" graphic,
represents a violation of that license.
A copyright, on the other hand, protects the originality of artistic
expression in its own right, without regard to the issue of public
confusion. Debian has a copyright interest in the distinctive artistic
character ("look and feel") of its web site, but it chooses to license
this copyright interest under the OPL. It is not entirely clear to me
what is and is not permitted under the OPL in this context, since the
mindset underlying the OPL is directed primarily at content rather than
artistic character. It is also not clear to me whether the API web site,
with entirely new text, is a derivation from or an aggregation with the
Debian OPL content. If the API web site is a derivation from the Debian
web site, then it must itself be licensed under the OPL; if the API web
site is merely an aggregation with the Debian OPL content, then only the
Debian OPL content and not the API content need be licensed under the OPL.
The remedies for trademark and copyright infringement are also entirely
different from each other. As far as the trademark issue is concerned,
the remedy which Debian should demand is that the API site not look so
much like the Debian site that people are likely to confuse the two so as
to incorrectly assume some connection or endorsement by Debian. As far as
the copyright issue is concerned, it seems to me that the only remedy
available under the OPL is that the original design be explicitly credited
to Debian. These concerns and remedies are, it is important to note,
inherently contradictory: Debian cannot take the position that API has to
make their web site look different but, if they do not, then they have to
credit Debian for the design. In fact, there is at present no mention of
Debian on the API site (except in the HTML source), and this tends to
_reduce_ the likelihood of confusion; if Debian were credited explicitly
for the artistic design, then this would tend to _increase_ the likelihood
of confusion and make people more likely to assume incorrectly a
relationship or endorsement by Debian.
So the key question is: what does Debian want changed? If the issue is
that the API site should not look like the Debian site, then that is a
trademark issue. If the issue is that the API site does not properly
credit the Debian design work, then that is a copyright issue.