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

On Thu, Jul 14, 2011 at 11:26:02PM +0200, Joerg Jaspert wrote:
> We feel that it is infeasible for Debian to be in complete compliance
> with the current GNOME trademark license.  In our strict reading of this
> license, the only way to be in full compliance would require us to
> perform actions such as renaming packages in the form of
> GNOME™-control-center.  This extreme example would conflict directly
> with Debian policy on the use of non-ascii lowercase characters in
> package names as well as being technically inadvisable.  Therefore, as
> long as we are using GNOME marks, we are likely to be in some way
> violating their current trademark license agreement.

The problem here is not that Debian does not comply with the trademark
license.  The problem here is that someone made the mistake of *ASKING*
about the trademark license.

Debian is not *trading* on any of the marks in question, and there is no
reason under the sun for us to give a damn about the status of any trademark
claims until a trademark holder specifically makes it a legal question by
sending a cease and desist letter or filing a lawsuit.

It doesn't matter one bit whether we're complying with the terms of the
trademark license agreement *if we aren't doing anything that requires
licensing of a trademark*.

Now, trademarks are sensitive things for upstreams; they wouldn't have gone
to the trouble of securing a mark if they didn't care about protecting it
from dilution.  We (broadly) feel the same way about the Debian mark.  So
since we're really on the same side as the upstreams and want to get along
with them, it makes sense for us to take into consideration requests they
might have of us.  But this is not a question of freeness or legality, only
of maintaining good relations with upstream.

> The safest thing for us to do would seem to be to terminate all use of the
> GNOME marks, and essentially rebranding the software, as was done in the
> case for firefox/iceweasel.

This is a perverse definition of "safe".  There is no real risk associated
with nominative and functional use of the marks (such as in package names,
directory names, and the like).

> We therefore think that the best way forward would be to make a best
> effort to correct any specific cases which they point out to us as
> problematic misuse of their marks.  But we have to be careful not to end
> up with a Debian specific solution (due to DFSG #8).

DFSG #8 is not an issue.  DFSG #4 allows authors to require changed versions
of their software to be distributed under a different name.  If the upstream
makes special allowances for Debian to use the name for modified versions,
this doesn't fail the DFSG, because everyone still has the required rights
when using the package.

> The case of the image which was created combining the GNOME foot and the
> Debian swirl seem unquestionably in violation of their trademark,

It is not "unquestionably" in violation of their trademark.  Trademarks are
*always* fuzzy things, and there are *always* questions about whether
something is a violation - questions that can only ever be settled
definitively in court.

It's perfectly fine for Debian to decide that, because the GNOME mark
holders *believe* it is infringing, we prefer to ask them for an explicit
license just to be safe.

> especially when you realize that the creator of this image was using the
> foot in this case with the specific intention of referencing GNOME.
> Until we can come up with some agreement with the trademark owners about
> using such a mark, Debian should stop distributing similar material.

There is no precedent for requiring Debian packages to avoid trademark
infringement as a condition of inclusion in the archive.  I am very much
opposed to anything that would require Debian to remove potentially
trademark infringing logos from packages "until we have agreement with the
trademark owners".  This is entirely the wrong way around - we should always
assume that our use is permitted wrt trademark law unless either a) a court
ruling determines otherwise, or b) we decide it's not in our interest to
fight a lawsuit over the matter and as a project decide to stop using the
mark.  In no event should the ftpmasters be preemptively deciding that such
works should be excluded from the archive pending an agreement unless so
directed by Debian's counsel in the course of litigation.

> As a general comment, we feel like this problem is an unfortunate
> one. This situation is one where we have people trying to limit user
> freedom via software which is in Debian, going against Debian's core
> tenets. 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. This would clearly resolve this issue once and for all,
> especially given that this is the second major instance of a similar
> issue.

This case is not congruous to the firefox case.  In that case, there was a
copyright license on the logo which enforced trademark-like restrictions
which as a result did not meet the DFSG.  We obviously need a free copyright
license for the works that we distribute, and since we didn't have one the
necessary course of action was to remove that logo from the source.  And
since that constituted a very visible change to the software itself, it was
reasonable to question whether it should continue to be called firefox under
the circumstances.

For GNOME, whose logos are all distributed under free licenses, there is no
such compulsion to avoid their inclusion, no matter what license GNOME
offers for the trademark represented by those logos, and we should not be
scared into removing them (or the GNOME name) for no reason.

Steve Langasek                   Give me a lever long enough and a Free OS
Debian Developer                   to set it on, and I can move the world.
Ubuntu Developer                                    http://www.debian.org/
slangasek@ubuntu.com                                     vorlon@debian.org

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