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Re: Linux mark extortion

On 6/17/05, Stephen Frost <sfrost@snowman.net> wrote:
> From what I've seen to date it seems like they've contacted UserLinux
> (which it appeared you agreed was reasonable in a prior email given that
> you were saying you'd be willing to pay the license costs) about a
> license but havn't contacted Debian or SPI about one.  Perhaps there's a
> reason for that- ie: that Debian's use (and therefore the use of the
> same "Debian GNU/Linux" text) falls under "descriptive use" and they've
> no reason or intent to ask us or our distributors to get a license,
> which makes the concerns you have about the license go away wrt Debian
> I'd think...

Sooner or later Linus (or his delegate) will have to either 1) make
some effort to exert QA authority over the kernels that distros ship
under the mark "Linux" or 2) face the loss of his trademark, and
possibly the success of someone else in enforcing it against _his_
licensees in related markets (ACME Certified Linux SysAdmin Training
-- if you didn't learn from us, you don't know Linux!).  AIUI (IANAL),
that's how trademark works.  Sounds a little far-fetched at present
given that Linux is famously Linus's personal trademark -- but there
are real-world examples from Aspirin to Zipper.  (Bayer, for instance,
which commercialized Aspirin and still holds trademark to that name in
Europe, can't call a buffered aspirin product Bufferin in the US --
that's a trademark of Bristol-Myers-Squibb.)

Trademark, like copyright, is a negotiated compromise with centuries
of legal history behind it.  In the case of trademark, the holder
receives assistance from the legal system in assuring customers that
goods bearing her mark are up to the quality standard that she
maintains.  In return, she agrees actually to maintain such a quality
standard in three ways (over and above the operations on which she
exercises direct control):

1.  By exercising effective oversight authority over the QA procedures
and advertising claims of her licensed distribution chain and
outsourced manufacturing;

2.  By pursuing legal action against makers and marketers of
counterfeit or unauthorized goods labeled with her mark (including
those which merely threaten to blur the distinction between her
products and those of others in related markets) when they come to her
attention; and

3.  By monitoring the conduct of non-licensees who handle her
authentic goods in the course of business, demanding that they bring
their processes up to snuff (and prosecuting if necessary) when their
actions risk tarnishment of her mark by encouraging false expectations
or by associating it with products that are inferior by the time they
reach the consumer.

So a trademark is both a privilege and a duty; like patent (which
carries the duty of publishing an accurate and complete record of how
the invention works) and copyright (which used to carry a duty of
depositing a stack of copies with the copyright registry, back when
that greatly increased the odds of the work's survival beyond initial
publication), it is a limited monopoly granted ultimately for the
public's benefit.  And in the case of the Linux trademark, Linus may
have to take seriously both blurring (which may apply to the UserLinux
mark, for instance, even if there's nothing wrong with their products
and services) and tarnishment (which may apply to distro kernels
mangled for fair reasons or foul).

The traditional way to do this is to condition wholesale access to
marked products (or, on the manufacturing side, permission to affix
the mark when packaging) on acceptance of a trademark license with QA
teeth.  (Money often also changes hands, but in a way that's secondary
to the assertion of oversight authority.)  That obviously doesn't mesh
very well with the guaranteed right to modify in the GPL and the DFSG.
 From what little I have read about the Linux Mark Institute's
efforts, they don't seem very well-conceived; I have a rather more
positive view of the Mozilla Foundation's effort, which (as discussed
in another thread) could result in a more palatable "non-license
safety zone" modus vivendi.

- Michael

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