On Sat, 14 Apr 2007 20:29:09 +0200 Arnoud Engelfriet wrote: > Francesco Poli wrote: > > What I am proposing is just licensing under both laws, but with two > > separate grants of permissions: a copyright license (Expat) and a > > trademark license (the one we are trying to write). > > I understand that. It's certainly possible. But what happens if > someone stays within the bounds of the copyright license, and > strays outside the bounds of the trademark license? Which one wins? > > Your argument is that the trademark holder will win, because the > licensee exceeded the trademark license. I am afraid someone will > argue that the copyright license (from the same entity) should count > for more than the trademark license, and that therefore he should win. That is why (I think) the original proposal by Nathanael included the sentence "but that is not a trademark license and should not be construed as one". Does this clarification prevent the misinterpretation you're afraid about? > > > I still fail to see how a copyright license could trump a trademark > > restriction. > > The big question is, will a jury also fail to see that? Heh, I've heard of a good number of absurd judgments. I cannot be sure a judge or jury will agree with me, but that holds for any other matter, unfortunately... :-( > > My view is, if a restriction prevents someone from arguing an > unlikely case, and does not hamper legitimate situations, go for it. I see, but then why not adding other useless restrictions as well? Licenses for Free Software should be legally sound, but also as simple and easy to understand as possible. [...] > > You would receive the fish image with a copyright license and no > > trademark license. > > Suppose the copyright license stated that you cannot use the fish > > image in commerce in such a way to cause confusion as to the > > affiliation, and so forth, with the Debian Project and SPI. > > Wouldn't it be awkward? > > Well, in a way I suppose. "What's that doing here?" > > On the other hand, someone further down the road may remove the fish > and recover the swirl-and-bottle, then put that on his own CD-ROMs > with operating systems, which he then sells. Now what? That same person could modify the fish into the logo of Red Hat, Inc., then put that on his own CD-ROMs with OSes, which he then sells. Now what? Should we add a restriction to prevent this? And then to prevent the same with the logo of Sun Microsystems? Of Microsoft Corporation? Of Adobe Systems Inc.? Of ...? > > > I mean: it's true, but the same holds for any other entity. > > You cannot use the fish image in commerce to cause confusion as to > > the affiliation, and so forth, with Microsoft Corporation, either. > > That is true. But Microsoft had nothing to do with the image, so > the license or origin of the image is irrelevant when it alleges > trademark infringement. In this case, it would be more like > Microsoft giving you an image, saying you could do anything you > wanted with it, and then sued saying "oh wait we didn't mean you > could do *that*". Would that look reasonable to a jury? But companies do distribute images, and (only sometimes, sigh!) in a DFSG-free manner. Their licenses do not usually include a restriction that prevents the licensee to derive a modified image that is confusingly similar to the company logo (and then use it in commerce to cause confusion as to the affiliation, etc.). I mean: when the image is not confusingly similar to a logo, I think it's awkward to add a restriction to the copyright license to prevent trademark infringing uses of modified images... > > > As I said above, I think that none of them "wins". > > As I said above, you're now relying on a jury agreeing with you. > I'm European, So am I... > so my opinion is based on hearsay, but in my opinion > the last thing you want in a lawsuit is hoping the jury agrees with > you. I'm not sure I follow you here: what do you hope in a lawsuit? That the jury *disagrees* with you? -- http://frx.netsons.org/doc/nanodocs/etch_workstation_install.html Need to read a Debian etch installation walk-through? ..................................................... Francesco Poli . GnuPG key fpr == C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4
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