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Re: Trademark policy for ITP Percona XtraBackup

Stewart Smith <stewart.smith@percona.com> writes:

> We're wanting to have Percona XtraBackup be part of Debian.

Thank you for working to make this software available in Debian!

> One issue that came up on debian-devel is that of trademarks.

And thank you for taking issues of software freedom seriously.

> A while ago we developed a trademark policy with an eye towards both
> keeping the lawyers happy and keeping Linux distributions happy. The 3rd
> exception in it was crafted with Linux distributions in mind. Basically
> the idea was to say "patch it enough so that it fits the requirements
> for running on a platform" while ensuring that someone randomly pulling
> in random patches couldn't cause confusion between what we release and
> what they release.

The Debian project maintains the packaged works of Debian and often
needs to patch them, sometimes but not exclusively for security fixes,
making the software functionally differ from what upstream provides.

More generally, the Debian Free Software Guidelines require that:

* in §3, every recipient must be permitted to make any modifications
  they see fit and/or distribute the resulting work under the same
  license terms;

* in §7, the license terms received by the Debian project must be the
  only license terms necessary to exercise full software freedoms;

* in §8, any recipient of Debian must have all the freedoms in the work
  granted to the Debian project.

So a restriction of the Debian project's freedom to provide patched
versions – or even the freedom of recipients of Debian to provide
patched versions – is not one Debian can abide by simultaneously with
the Debian Free Software Guidelines.

Thus, this clause:

> > Third, you may use the appropriate Percona mark to refer to a
> > distribution of GPL-released Percona software that has been modified
> > with minor changes for the sole purpose of allowing the software to
> > operate on an operating system or hardware platform for which Percona
> > has not yet released the software, provided that those third party
> > changes do not affect the behavior, functionality, features, design or
> > performance of the software. Users who acquire this Percona-branded
> > software receive substantially exact implementations of the Percona
> > software.

while being the closest thing to allowing modification, is still too
restrictive IMO: the DFSG require that works in Debian have *no*
restriction of the modifications the recipient can make and distribute.

> So, my ideal response to this mail is "looks good, awesome!". My
> second ideal response is "tweak the language this way" and our lawyers
> are happy with that.

Trademark is a tricky area for software freedom.

The software freedom of the recipient of a work includes the freedom to
modify the work to any degree, for any purpose, and redistribute the
result as free software.

Trademark, on the other had, has a laudable but largely opposite
purpose: to ensure the public can know the provenance of a product, by
means of *restricting* what recipients may do with its associated mark.

A trademark license author that seeks to maintain the integrity of the
mark has very little scope to restrict the recipient's modifications of
the work before violating the recipient's software freedoms as above.

So there are few – if any – examples of generally-applicable trademark
licenses that simultaneously maintain the integrity of the mark and
preserve the full DFSG freedoms of the recipient.

The Debian project has wrangled with this issue for the Debian trademark
<URL:http://www.debian.org/trademark>, which also provides some guidance
on the purpose of the license, what is and is not permitted, and how to
use the mark.

The openSUSE project also has a Trademark Guidelines document
<URL:http://en.opensuse.org/File:OpenSUSE_Trademark_Guidelines.pdf> (is
that a trademark license?) for the openSUSE mark.

But notice that these still require that, for anything but a narrow
class of modifications, the recipient must remove the mark if they wish
to redistribute the result.

If the same were true for a work being considered for inclusion in
Debian, IMO it would not pass the DFSG without removing the mark. This
has been done with, for example, the works from the Mozilla Foundation
(Firefox is free software only in the absence of its trademark
restrictions, so we have re-named and re-branded it Iceweasel; and so on
for the other products under the same trademark restrictions).

So these are still not examples of trademark terms in harmony with the
DFSG: the only way to satisfy both, in these cases, is to remove the
mark and redistribute the free-software work without the original brand.

I hope that helps. Others may be able to give you a different angle, but
I believe the incompatibility is still not resolved between the intent
of trademark and the intent of software freedom.

 \     “I went camping and borrowed a circus tent by mistake. I didn't |
  `\      notice until I got it set up. People complained because they |
_o__)                           couldn't see the lake.” —Steven Wright |
Ben Finney

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