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Re: Bug#265352: grub: Debian splash images for Grub

Brian Thomas Sniffen wrote:
> Josh Triplett <josh.trip@verizon.net> writes:
>>Raul Miller wrote:
>>>>Brian Thomas Sniffen wrote:
>>>>>But trademarks are names.  That's all they are -- not necessarily in
>>>>>roman characters or pronounceable, but names nonetheless.
>>>On Fri, Sep 24, 2004 at 04:50:37PM -0700, Josh Triplett wrote:
>>>>That's a huge leap, and I seriously doubt it was intended by the
>>>>drafters of DFSG4.  I would argue very strongly against that
>>>>interpretation.  A name is just that, a name: some text moniker that
>>>>identifies a project.  "GCC", "grub", "Linux", and "Apache" are all
>>>>names.  A logo is not a name.
>>>You're changing the subject from what Brian was talking about: the set of
>>>"trademarks" has only a small area of overlap with the set of "logos".
>>>Sure, there are logos which don't identify anything, but those logos
>>>aren't trademarks.
>>And in this case, the subject is a logo which is in the intersection of
>>the set of "logos" and the set of "trademarks".
>>"trademark" does not inherently imply "name" in the DFSG4 sense,
>>although most trademarks are of names; neither does "logo".  A name is a
>>name, not a logo, not a sound file, not a video clip, and not any other
>>similar work.
> A name does have an image and a sound, though.  Its image might move.

That's true, in the sense that the name can be depicted in such works;
once that happens, it is more than a name, because it is now also a data
file in the project.  I do not believe DFSG4 can or should be construed
to apply to such data.

> If I say "this doesn't pass the tex regression tests, so I can't call
> it TeX.  I will call is Samuel, which is pronounced "Tech"" then I
> haven't really changed the name.

That's pushing it far further than I believe DFSG4 was intended; you are
now requiring extensive changes just so someone can create a modified

>>The sum total of what DFSG4 should permit a license to
>>require is a change in the top-level non-functional string identifier
>>for a work;
> Absolutely not.  Requiring that derivatives of firefox stop using both
> the name 'firefox' and the image of a flaming fox is perfectly
> reasonable and free.

Herein lies our fundamental disagreement: I find this non-free, and
blatantly so.  Requiring that you not use the top-level identifier
"firefox" is already extremely close to the line, but acceptable due to
DFSG4; requiring changes to images is well over the line, and I don't
believe that relates to DFSG4 in any way.

Furthermore, even if you do think DFSG4's "change the name" requirement
applies here, that becomes completely ridiculous when *the entire work
is the name*, as you claim; it would allow any arbitrary restrictions if
interpreted in this manner.

>>I would be hesitant to say that it can even require a global
>>s/NAME/SOMETHINGELSE/, especially if that name is ever used in
>>functional manner, such as libNAME.so.42 or NAME_functionname.
> Sure, of course functional components aren't names, or aren't purely
> names and so you can't freely require they be changed.

Glad to hear we agree on something. :)

Now, in my opinion, a data file in a project is a functional part of the
work, whether the file contains C code or image data.

>>If we are going to permit arbitrary pieces of a work (including both
>>functional and non-functional components), such as imagery, to be
>>construed as a "name", then we have a serious Freeness problem.
> Nobody suggested functional components but you.  I've only been
> talking about those parts of the work which name it.

In <87brftlqj2.fsf@aule.evenmere.org>, available at
<http://lists.debian.org/debian-legal/2004/09/msg00539.html>, Brian
Thomas Sniffen wrote:
> Francesco Poli <frx@firenze.linux.it> writes:
>>On Sat, 25 Sep 2004 00:59:54 -0400 Brian Thomas Sniffen wrote:
>>> Well, yes, but if I offer you the MS Visual C++ source code to
>>> package for Debian, and I tell you I'll give it to you under the
>>> GPL, you'll turn me down. Even though I give the relevant
>>> permissions, and it's the copyright holder that does not.
>> I'm not convinced that this is an equivalent situation... I could
>> be misleaded by my opinion that software patents are an abuse and
>> should not exist in the first place, but anyway I'll try and
>> clarify what my position is.
> But we're talking about trademarks, too.  Do you think trademarks
> which cover software are an abuse?  What about when those trademarks
> describe functional behavior, like the shape of a car or the sound of
> an engine?  How about the interface of a computer, like an iPod?

So yes, you have suggested functional components, which, by the way,
cannot be restricted by trademarks (or otherwise you could use a
trademark as a perpetual patent or copyright).

Furthermore, this is part of the fundamental point of contention here: I
think the parts you are suggesting (with the exception of the actual
name of the work) are not names, but are actual functional data
components of the work.

>>* Use as the basis of any logo, for any organization.
> Yes, that's intentional.  It's Debian's logo.

Non-free restriction.

>>* Use on the cover of a book.
> Fine if it's a book about Debian, otherwise we don't want it to happen
> because it weakens our trademark rights.

Non-free restriction.  Whether we consider the use desirable or not, or
whether it affects our rights under any particular law, is irrelevant to
the Freeness of the license.

>>* Use on a website (even of a competing distribution).
> As above.

Non-free restriction.

>>* Use as the basis for hiding a steganographic message.
> Irrelevant -- it can be used, only if the overt message is a reference
> to Debian.

Non-free restriction.

>>* Use for Debian-derived distributions (though it would not give them
>>the right to claim endorsement or affiliation, nor would any of the
>>other cases).
> Fine, if used as a reference to their Debian-derivedness.

And not fine if not?  Non-free restriction.

>>* Many other uses, few of which fall in the category of "referring to
>>Debian", and none of which fall into the category of "fraud".
>>* Use as the basis for any other image, which can then be used for all
>>the same purposes.
> I'd love to see your proposed license which allows practical use on
> the cover of a book or on the pages of a competing distribution.

We can't even begin to discuss a Free license, until we finish
establishing that the restrictions you are suggesting are completely
non-free.  If you are suggesting that Debian's logo continue to be
non-free, that's at least an understandable position to hold, though a
highly-impractical one.  If you are suggesting that we should permit
these restrictions in a DFSG-free license, or permit works under this
license in Debian main, then I suggest you provide a clear explanation
of why these restrictions should be allowed under the DFSG, rather than
simply pointing out how they relate to the scope and requirements of
trademark law.

The DFSG *does* *not* *care* what branch of law is used to spell out
rights and restrictions.  If it turns out there is no such thing as a
DFSG-free license for a trademarked logo, then that's unfortunate, and
we will have to decide whether we want a trademarked logo or a Free
logo; that's certainly a reasonable point for debate.  Arguing that
something should be considered Free because it can't be any Freer
without losing trademark rights is completely irrelevant.

- Josh Triplett

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