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Re: Debian Legal summary of the X-Oz License

On Tue, Mar 02, 2004 at 04:12:45PM -0500, Branden Robinson wrote:
> 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.

You know what I meant Branden.  My emails aren't a license.  Please
don't nitpick them when you know what I mean.

> > 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,
> editorializing.
> 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.

I see this statement as utterly irrelevent.  Other countries have
entirely different laws regarding trademark rights, copyrights, an all
varieties of rights.  But none of this really matters because as long as
the copyright holder doesn't interpret their license in such a way as to
prevent that.  I have to wonder why you're questioning such language
that has been long used and included in Debian all of a sudden.  To my
knowledge, this language has never been interpreted to behave this way,
nor attempted to be used to restrict anything like this.

> > 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.

In relation to how this license it depends on how you look at this
statement.  If you look at it as taking away rights then you have a
point.  But I don't look at the language that way.  I look as it giving
you trademark rights.  It specifices you have the rights to use the
marks to comply with the license but not otherwise.  When viewed in the
context that this is a copyright license, not a contract or trademark
licensing agreement of some sort, I don't think this is inconsistent
with the meaning.

I think the intent here is to permit you to use the name as necessary
and reserve all the other rights that are usually reserved to the
trademark owner.

I will admit that it is poorly worded to serve this purpose.  But this
is a long standing clause.

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

I don't disagree, but then I think the Apache's trademark/endorsement
clause is far worse than the X-Oz license.

> > 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.

Is this a response or just a jab?  You obviously haven't said yes
without qualification.

> > 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.

This all comes down to how you view the license.  Like I explained
above, I'm viewing the license the opposite way from you are.  As a
result I don't think it's steping beyond coyright law.

> > 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?

To make it clear that they can't be stopped from complying with the
license under trademark law.

> > 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.

Well I think there are plenty of licenses that are free but not
particularly nice or friendly.  But that's not really the point.

> > > 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?

The latter.  I think the Apache 1.1 license as worded is very difficult
to comply with if you modify the software at all.

> > > >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"?

I'd guess this was included to deal with inclusion in other pieces of
software where you aren't selling it and aren't necessarily encouraging
the use of the specific software that the license applies to but your

> > 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.

I've already done that at length, but I'll repeat:

1) Doesn't stop free redistribution.  It's no different than requiring
the copyright notice be included.  In fact the copyright notice probably
fulfills this.

2) Doesn't stop source code from being included.

3) Doesn't stop derived works.

4) Doesn't even restrict source from being distributed in modified form.

5) I can't see anyway this discriminates against any group.  As long as
everyone is required to make the same acknowledgement.

6) There's no reason you can't give acknowledgement no matter what feild
of endeavor you're in.

7) Doesn't require an additional license.

8) Unless there's an exception for Debian the clause isn't specific to

9) Doesn't contanimnate other software.  Debian already provides
acknowledgement in every package.  This is the usual location and form
of the acknowledgement.  I really disagree with your analysis of the
scope of this clause.  

Nor do I think it fails the desert island test.  You can still give
acknowledgement when you give the software to your friend that also
lives on the desert island.

Or the dissident test.  You don't have to give your identity to give
acknowledgement to the author.  Nor does the author have to give his
real name if he used a license with a different acknowledgement clause.

Or the tenticles of evil test.  Even at worst case you can include the
acknowledgement in the binary (e.g. -version output of X).  Any license
can be taken away if you don't comply with its terms.  But this clause
isn't particularly hard to comply with.

The only way I see it failing is if you really believe that it effects
other software, documentation, etc...  Which I don't think this license
does.  Especially not if you use the Alternative.
> > > >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.

Again you're nitpicking my language and not responding to my point.

Ben Reser <ben@reser.org>

"Conscience is the inner voice which warns us somebody may be looking."
- H.L. Mencken

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