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Re: Firefox/Thunderbird trademarks: a proposal

On 01 Feb 2005 17:17:41 GMT, MJ Ray <mjr@dsl.pipex.com> wrote:
> Gervase Markham <gerv@mozilla.org> wrote:
> > This modified version has been approved of by at least one list
> > member[2].
> I don't remember much about Michael K Edwards except he's currently
> MIA from the New Maintainer queue.
> http://nm.debian.org/nmstatus.php?email=medwards-debian%40sane.net
> Then again, I'm not very good at making whoami clear when it
> would help. I'll try to improve.

Bit off a little more than I could chew at the time; a new day job and
a new baby daughter have intervened between.  :-)  (I have also let
the sane.net domain lapse after unfortunate consequences of a full
disk, so that address isn't in working order.)

When I am able to spend the time to finish Joerg's P&P questionnaire
(which I take pretty seriously, perhaps a bit perfectionistically), I
hope to get back in the queue.  But I don't think Gervase would do
well to cite me as a source of approval on debian-legal in any case. 

> More to the point, Mozilla Foundation knows about Fedora's
> infringement and have not done anything. Is this common? Have
> the trademarks become generic?

That I very seriously doubt.  I don't think that Firefox has been
around long enough for a successful claim that the Mozilla Foundation
is estopped from trademark enforcement based on past laxity, and
people don't use "Firefox" as a dictionary synonym for "web browser". 
The INTA ( http://www.inta.org/info/faqsD.html ) cites the following
as examples of trademarks that have suffered "genericide": 
"escalator", "linoleum", "zipper", "yo-yo", and (in the US but not
other countries) "aspirin".  As much as I'd like to hear IT staff say
"take two Firefox and call me in the morning," Firefox isn't in that
tier of household words.

> > Let's take just one example. The Mozilla Foundation is very keen that
> > nothing ships as "Firefox" which contains spyware. How would you define
> > "spyware" in a watertight way for the trademark license document?
> How does MF's trademark scheme stop that happening? No offence, but
> the Mozilla codebase is damn huge and I can't believe you'll check
> every line of every package.

As I understand it, all the Foundation is trying to do is to preserve
the modicum of statutory recourse available to them if a malicious or
incompetent packager ships a perverted or broken package under the
name "Firefox".  They don't have to have perfect audit standards in
order to cry foul when a package turns out to have spyware embedded. 
They just have to be able to rebut an "implied license" or other
estoppel defense when suing for tarnishment.

IANAL, and I don't really know whether the proposal on the table would
do its job effectively in all of the jurisdictions that the Foundation
cares about.  But it sounds like the Debian mozilla-firefox
maintainers might be willing to accept it with the addition of a
paragraph containing as-yet-unspecified criteria under which anyone
could receive the same approval.  If a consensus could be reached that
that's the only serious obstacle from the Debian side, then perhaps it
would be worth the Foundation's while to run the proposed policy past
a lawyer as it stands, to get some sense of whether it's workable.

Note that I'm not saying that those criteria would be easy to define. 
For instance, the "default search engine" issue is a little bit
worrisome to me, since as far as I can see "sponsorship
acknowledgment" and "adware" are two degrees on a continuum.  Does the
Foundation insist that existing signs of sponsorship be retained while
frowning on adware mechanisms added by packagers?  How about (as MJ
pointed out elsewhere) the continuum of "phone home" mechanisms from
"Software Update" to "spyware"?

So I do agree with the skeptics that it would be good to know a little
more about the Foundation's intentions with regard to other distros
and individual packagers.  But again, I think DFSG #4 is a good
yardstick for the permissible scale of compromise, and that the
proposal on the table from Gervase is well within this standard as
long as the Foundation's actual behavior is consistent with DFSG #8.

I argued earlier that the Mozilla Foundation shouldn't try to obtain a
commitment from Debian to cease use of its trademarks on notice of
policy violation, but should instead rely on statutory remedies if it
ever comes to a rescission of the granted license.  The result may not
be exactly a binding contract, but I don't think it needs to be in
order to provide an estoppel-based "safe harbor" for the Debian
packager while preserving the Foundation's recourses against trademark
misuse by others.

Similarly, I think there's a case that Debian needn't extract a
commitment from the Foundation to specific criteria under which others
can accept the same "safe harbor".  If the Foundation isn't playing
fairly, then Debian can proclaim its rejection of special privilege,
and either yank the mozilla-firefox packages or go on distributing
them under the claim that no license is needed under Coty or a similar
standard.  The Mozilla team seems to be committed to supporting the
Debian packagers in building both mozilla-firefox and
iceweasel-browser packages from the same source base.  Isn't this
precaution enough?

- Michael

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