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Re: Debian Legal summary of the X-Oz License

On Mon, Mar 01, 2004 at 02:28:37PM -0800, Ben Reser wrote:
> 1) Do you need the right to use the name of the copyright holder in
> order to make free use of the software?

Copyright doesn't cover usage, it covers copying.

> 2) Do you need the right to use the name of the software in order to
> make free use of the software?

Copyright doesn't cover usage, it covers copying.

> My answer to those questions are:
> 1) Not outside of attribution of the copyright.

A copyright license, or an attempt thereat, must not forbid the
communication of factual information, or usage of "the name of the
copyright holder" is any way that is consistent with the principles of
free expression.

This not only includes factual statements, but parody, satire,

It does not include libel or false claims of endorsement.

Any attempt by a copyright license to prohibit protected expression is
probably unenforceable (and unconstitutional if prosecuted as criminal
copyright infringement by the U.S. government).  Since the Debian
Project does not have the resources to pursue court battles, we tend to
regard all clauses of a copyright license as enforceable, especially
since not all countries have equally liberal laws regarding free
expression, and Debian produces an OS with a worldwide audience.

> 2) Yes, unless the software has been modified.

I think any attempt to use copyright licenses to enforce common-law
trademark rights should be regarded with suspicioun, since common-law
trademark right vest regardless of any copyright license.

These constant attempts to piggyback non-copyright-related means of
revoking a copyright license are misguided at best and malevolent at

What's wrong with a copyright holder including a clause in his "Open
Source" license that terminates a licensee's rights to the software if
the licensee should ever be involved in an automobile accident with the
copyright holder?

Furthermore, it is not acceptable for a copyright license to place
restrictions on software interfaces.  E.g., a Debian package should be
able to be named "apache", or declare that it "Provides: apache", to
satisfy the requirements of other packages that require an
Apache-compatible HTTP server.

> If you say yes to both of these questions without qualification then any
> other license without permission to use the names would not be free.

If you use language like "without qualification", we're probably not
going to have a very enlightening discussion.

> The cornerstone of my argument in my opinion is that most other licenses
> do not provide such a permission.

Most licenses don't need to provide permission.  All they need to do is
not step beyond what copyright law allows.

> I don't think you have the rights these licenses take away from you
> even if the clause was omitted.

Then why saddle the license with irrelevancies?

> 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.

...and that may not be wise, or friendly.

> > That is only true in one case and even then, its full name is "Apache 
> > HTTP Server".
> Yes but nobody commonly refers to it as this.

Does that mean nobody commonly violates the corresponding clause of the
license?  Or that everyone frequently does?

> > >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.

What are "other dealings"?

> 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. 

That's already prohibited by law.  Nothing to do with copyright law.

> 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.

Language matters more than intent for any license that is used by anyone
other than the person who wrote it.

> Nope, nor do I think I did.  Requiring acknowledgement seems perfectly
> acceptable under the DFSG in my opinion.

Please ground your opinion on the language of the DFSG, then.

> > >Clause 4 is about asking you not to use their name without permission.
> > 
> > It's compelling, not asking. I doubt any would be upset about a 
> > request.
> You're already compelled under law anyway.  Nor do you need to use these
> names in order to make free use of the software.

Copyright doesn't cover usage, it covers copying.

G. Branden Robinson                |      Mob rule isn't any prettier just
Debian GNU/Linux                   |      because you call your mob a
branden@debian.org                 |      government.
http://people.debian.org/~branden/ |

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