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Re: GUADEC report

Matthew Garrett wrote:


> I raised two main issues at the meeting itself:
> 1) The use of copyright law in an attempt to protect trademarks. This is
> potentially going to be an issue for us, as it leads to artwork that we
> can't distribute in main. This is also less than ideal for upstream
> projects, as it reduces the level of branding and general market
> awareness. However, if we want to make any significant argument here, it
> seems likely that we need the ability to make a solid legal argument as
> to why copyright law is the wrong way of handling this.

(1) Pseudo-tradmark restrictions in copyright licenses routinely prohibit
perfectly reasonable things which are simply allowed under trademark law.

Some classic examples of prohibited actions:
* making and using a derivative work, based on a logo, but *NOT* confusingly
* using a logo or trademarked name to refer to the software in a review or
other place which does not include the software
* using a logo as part of an artwork
* using a trademarked name or logo in a statement such as "Based on the hard
work done by Ximian.  (This release is not endorsed or supported by

For a concrete example, consider the Ximian logo license linked from
which has *all* these problems.

(2) Traditional trademark law (US trademark infringement law) protects
almost exactly what you *want* to protect -- it outlaws uses which are
likely to create confusion about the origin of the items with the trademark
on them.  In contrast, pseudo-trademark restrictions in copyright licenses
prohibit all uses by default.  To create a reasonable restriction, you have
to add permission clauses recapitulating the entirety of hundreds of years
of trademark law.  Use the right tool for the job!

(3) Free software, and the DFSG, are entirely compatible with aggressive and
restrictive enforcement of traditional trademark law.  We certainly don't
have any desire to cause confusion about origin, endorsement, or
association!  And that's all that's traditionally protected by trademark
rights.  In contrast, pseudo-trademark restrictions in copyright licenses
are far more restrictive, and we *do* care about the perfectly reasonable
actions which they prohibit.

There are none so blind as those who will not see.

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