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Re: Linux mark extortion

On 6/18/05, Glenn Maynard <glenn@zewt.org> wrote:
> Well, I don't see a real danger to Linux if somebody starts selling
> Linuxmobiles.  :)  Somebody might trademark that, but to my (weak)
> understanding of copyrights, that wouldn't affect the existing generic
> use of "Linux" in the context of operating systems.

It's not "generic" unless and until there's a court case that proves
it to be.  I'm no trademark lawyer either, but I am quite skeptical of
the claim that "Linux" is currently a generic mark everywhere that
Debian is distributed.

> (My understanding of trademarks is fairly weak, since they've only
> recently begun having a serious impact on free software and havn't
> been discussed very much here, so I welcome any corrections if I
> have severe misconceptions about the nature of trademark law.)

"Only recently" as in the last five years or so.  Red Hat's trademark
policy and suppression of CD vendors, MySQL's success in obtaining
injunction against NuSphere on trademark but not on copyright grounds,
and the Sun v. Microsoft saga (not free software of course, but the
"Java" mark was a pretty big factor, and the corporate players in free
software noticed) have changed the landscape.  This storm has been
brewing for quite a while, and the stuerm und drang have just started.

> > It truly boggles my mind that people who presumably plan to make their
> > living using their brains, and presumably don't want to hide their
> > work under a trade-secret bushel basket in the process, can be so
> > hostile to the centuries-old legal mechanisms whereby their brains'
> > output can benefit both the public's access to knowledge and their
> > families' economic well-being.  We can't all have student lifestyles
> > and free rides from the MacArthur Foundation, and we don't all want to
> > be reduced to running protection rackets out of our
> > government-subsidized university chairs.  Unthinking hostility to
> > legitimate uses of copyright, patent, and trademark plays right into
> > the hands of the people who abuse them via FUD, regulatory capture,
> > and lobbyists.
> I don't consider this particularly worthy of a response; I'm not even
> in school.  You're failing badly at explaining how suddenly restricting
> the use of the word "Linux" is in any way beneficial to Free Software.

The "student lifestyles" bit was no more aimed at you than the
"government-subsidized university chairs" bit was; sorry if it came
across as personal.  I'm not much more enthusiastic about the
"suddenly" part than you are, but better late than never.  LMI's
tactics aside, if no effort is made to regulate the use of the Linux
mark, we will see BSD variants marketed as "non-linux open source
kernels" (just like acetaminophen is labelled "non-aspirin pain
reliever") and an explosion of Montavista-style vendor lock-in
tricksiness.  If Linus is willing to go after those abuses (and not
just rake off some cash from good-faith adopters of his mark), I say
more power to him.

Trademarks are a good thing.  The alternative, in which there is no
way to enforce truth in advertising or product quality standards other
than criminal prosecution under statutory definitions or class-action
tort suits, would be the same kind of nightmare as if DRM systems
systematically replace a copyright law that no one respects any more. 
Patents also have their place, although I will not defend the
wholly-0wn3d USPTO in present company.

The sad truth is that people don't always go around doing the right
thing out of the goodness of their hearts.  Anarchy leads as surely to
despotism as autocracy does; it's just a different reporting structure
for the same bullies.  One way of dealing with this is link a public
good with a private economic opportunity, and to put a limited power
of enforcement through contract (backed by tort when contract fails)
into the hands of people motivated by that economic opportunity. 
That's how trademark, patent, and copyright work; and they really
don't work so badly as all that.

- Michael

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