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Re: Debian Legal summary of the X-Oz License

On 2004-03-01 22:28:37 +0000 Ben Reser <ben@reser.org> wrote:

On Mon, Mar 01, 2004 at 08:47:09PM +0000, MJ Ray wrote:
Just about any use other than saying negative things about the >software
can be considered to endorse or promote products.  So already what
you're allowed to use the marks to do is pretty widely restricted.
Can you quote law or precedent for that, please? It seems counter-intuitive, yet is the cornerstone of your argument.
I'm not going to look for law or precedent on this.  I'd have to dig
through 50 states' law and precedent to make a compelling case regarding
the United States, and that's still ignoring other countries.

I don't think mentioning who is the author, publisher or copyright holder for the original unmodified software is endorsing the product. Insofar as I am a man on the Clapham Omnibus unable to find a contradiction, that seems reasonable and entirely consistent with permitted acts on a mark. Can you find a single precedent against it?

But this raises two questions:
1) Do you need the right to use the name of the copyright holder in
order to make free use of the software?

No, but the licence should not interact with other related but distinct and not derived works. I'm not sure whether this licence tries to.

The cornerstone of my argument in my opinion is that most other licenses
do not provide such a permission.  I don't think you have the rights
these licenses take away from you even if the clause was omitted.

I think you do have the right to appropriate accurate use of those names without explicit permission. From UK's Trade Marks Act 1994, S10(6): "Nothing in the [definition of infringement] shall be construed as preventing the use of a registered trade mark by any person for the purpose of identifying goods or services as those of the proprietor or a licensee."

The restriction only applies to derived works, or did you miss that? In the X-Oz licence, it applies to the software itself.
Nope I didn't. But because the name "Apache" is commonly used to refer to the software I think that qualification is necessary. If ASF was to
separate out the language for these two terms I think they could be
equally restrictive on the "Apache Software Foundation" mark as the
XFree86 1.1 and X-Oz licenses are.

I don't think they could, or they would be trying to use copyright law to stop something permitted by trademark law even for registered trademarks.

So what does the clause really prevent you from doing? Using those >two marks without permission. Neither of which you have a particularly >good
reason to need to use anyway.  They aren't the name of the software.
Does the clause prevent you from describing the origin of the software, even unmodified, apart from the software itself?
No. Provided you aren't using the name for the purpose of promoting the sale, use or other dealings in this software. Simply acknowledging the
source of the software doesn't seem to violate the clause.  Unless you
are trying to use good will attached to the names of the copyright owner
to gain good will for the product.

I think that "provided" term goes too far. If I wrote "Purchase one of our boxed sets of Foo by X-Oz Technologies" would that breach the copyright licence? Without the clause in the copyright licence, could I do that?

I think the answers are yes to both, which is why this licence is troublesome.

Frankly, I think this clause is trying to define an endorsement.  It
probably would be better off using the BSD language. But I don't think
there is anything non-free about the language.

Sadly, this clause also seems to define attribution within the prohibited acts.

Clause 3 is simply asking for
acknowledgement, which denying as being DFSG compliant is ridiculous.
Huh? Did you mean to agree with the objectors?
Nope, nor do I think I did.  Requiring acknowledgement seems perfectly
acceptable under the DFSG in my opinion.

First you write that claiming DFSG compliance is ridiculous, and now you say it's perfectly acceptable?!?

[Duplicate points removed and merged above]

MJR/slef     My Opinion Only and possibly not of any group I know.
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