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Re: Question about GNOME Trademark and GNOME project packages in Debian

On Fri, 15 Jul 2011 13:01:13 +0100 (BST), MJ Ray <mjr@phonecoop.coop> wrote:
> Joerg Jaspert wrote:
> > We feel that it is infeasible for Debian to be in complete compliance
> > with the current GNOME trademark license. [...]
> OK, sorry if this is an old chestnut, but do we actually need a
> licence in general?  Is most of the use in Debian more than honest
> description of the source of the software?

As far as I know, we have not made any inquiries to lawyers as to how
valid their claim to the GNOME mark is.  If their claim to the mark is
valid, then we could be legally be required to stop using this mark.  

> > The case of the image which was created combining the GNOME foot and the
> > Debian swirl seem unquestionably in violation of their trademark, [...]
> Yes, that seems like something that will have to stop if the GNOME
> foot is not free software because of some restrictive TM licence. :-(
> > [...] We understand they are doing so to defend Free Software related
> > marks, but that doesn't solve the underlying problem. It may also be the
> > case that from Debian's point of view, the developer body as a whole
> > needs to take a formal stand by means of a GR on the general issue of
> > how to resolve the tension among DFSG principles and trademark
> > licenses. [...]
> Is there a tension?  Isn't it obvious that many Free Software related
> marks are not themselves free software?

The way you state your question "Isn't it obvious that many Free
Software related marks are not themselves free software?"  Makes me want
to respond "No, trademarks are not software."  Perhaps in an "ideal"
world we would be saying that the DSFG applies as cleanly to trademark
issues as it does to copyright issues, but in reality it is not the
case. The stance that we do not allow the use of any trademarks in
Debian would be an insane stance to take, once you realize how many
trademarks are in Debian already.  MySQL is trademarked, OpenGL is
trademarked, we mention Microsoft, Apple, and probably a number of other
companies.  Python is trademarked, mono is trademarked.  For that matter
"Linux" and Debian are trademarked.  We clearly are not going to either
remove all this software or rename it.  We ARE going to be using
trademarks that other entities have some legal control over.  Since this
puts us in the position of having external entities having some legal
control over what we do with our software, this is in tension with the
DFSG which tries to make sure I have complete control over the software
in Debian.

I believe we are going to have to make decisions about what to do about
a trademark we are using once a trademark owner notifies us that we are
using their trademarks in ways which they don't approve of, as it is
happening in this case with the GNOME marks, and once we are notified,
decide how we react.  In some cases, we should be able to dismiss a
trademark owner's claims entirely.  Although someone owns the Git
trademark, since our use of "git" is not likely to cause confusion to
people, we don't have to worry of our use as infringing.  In other cases
we might decide that our use of their mark falls under "fair use" and
thus not infringing. 

When we are contacted by a owner of a trademark on which we believe we
are infringing, the safest thing for us to do legally is to cease all
use of the mark.  The easiest thing for us to do is to ignore their
claim.  We'll need to figure out where we want to land between these two
extremes, and here again, there is tension.  I don't believe it is as
simple as you state it: "...that seems like something that will have to
stop if the GNOME foot is not free software because of some restrictive
TM license".  Because by that argument tells us that we have to rename
all GNOME software, since the trademark license is restrictive about how
we use "GNOME".

I think it is clear in the case of the foot/swirl icon, which has been
definitively identified as infringing on their mark in a way which is
objectionable to the owners of the mark, we should cease the
distribution and/or use of this icon.  There perhaps is little tension
here. When they tell us that our non-compliance with their trademark
policy in areas like using GNOME in all lowercase letters is
objectionable, there will be considerable trouble in resolving this.

> It disappoints me when free software projects use proprietary frosting
> to restrict user freedom, but it seems like an old chestnut rather
> than a new problem requiring a new GR.

Since we are in the position of having to decide on multiple different
outcomes, none of which are 100% desirable, and that this is not likely
to be the last time that such a situation will arise, I believe it might
be wise to reach a consensus about how the project wants to handle these
situations. The best means to do this might be to memorialize this using
a GR.


p.s. You used the term "old chestnut" twice.  If is some kind of
colloquialism that might carry additional meaning, it is not one I'm
familiar with, so forgive me if there is some meaning I've missed.

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