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Re: trademark licenses and DFSG: a summary

Charles Plessy <plessy@debian.org> writes:

>  - If such a program is trademarked by its name, will it be free if it has a
>    free copyright license, plus restrictions on commercial use through a
>    trademark license, because it can be escaped by rebranding ?

I believe such a program would only be acceptable in the archive if it
were rebranded to remove the trademark.

DFSG#4 specifically applies to restrictions on redistributing source code
in a modified form, not to restrictions on use of the compiled binaries.
If the compiled binaries carry restrictions applicable to the user of a
Debian distribution, such as no commercial use, I think we would need to
rebrand to avoid the trademark restrictions in that case for the software
to be acceptable in main.

Even if it's possible to avoid restrictions via rebranding, I don't
believe it's acceptable for Debian to distribute binaries that can't be
used for particular purposes.  That would be a direct violation of DFSG#6.

>  - What is the case of works that by essense can not be rebranded, like
>    logos for instance.  If the copyright license allows modification,
>    but the trademark license disallows commercial exploitation (like
>    printing on T-shirts sold for profit, etc), can we distribute this
>    file in Debian ?

If the *entire work* constitutes the logo, then I don't think DFSG#4 could
possibly apply even by analogy, since changes are not possible via patch
files or by renaming the work (since in this case there is no meaningful
renaming of the work).  So if the *entire work* is the logo, then that
would not be considered DFSG-free.

The more common case is when the logo is part of a larger work and the
logo is subject to non-free restrictions via a trademark policy.  That's
what the proposal is trying to address.

> My concern is that we start to encourage a switch to trademark licenses
> for non-free clauses, and that we will not have the manpower to
> systematically rebrand the software, not to mention the confusion it
> induces.

Yes, I think this is a valid concern, as accepting trademarked software
that may require rebranding creates a potential for difficult future work.

I think a compensating control on this is that obtaining trademark
protection is not simple in most jurisdictions and is not automatic like
copyright protection, so it's less likely that the average software author
is going to bother and the total number of cases we'll have to deal with
will be somewhat smaller.

But package maintainers should definitely consider the potential cost of a
rebranding before packaging anything that has a trademark license, and I
suspect other teams (stable release managers, ftpmaster) will also take an

> Perhaps what puzzles me the most is this apparent contradiction that
> everything is permitted with trademarks because rebranding gives us a
> way out, and that still we need to agree on our interpretation of DFSG
> #4 when trademarks apply.

Not *everything* should be permitted, in my opinion.  Only things that
fall into the spirit of DFSG#4, namely restrictions on what can be done
with potential derivative works without rebranding.  I think the potential
part is also important: if what Debian is *already* doing falls under
trademark restrictions that violate other points of the DFSG, then the
software would need to be rebranded to be acceptable in main.

The only place where we could apply DFSG#4 to trademarks is if nothing
we're currently doing violates the trademark license (including
distributing binaries usable for any purpose and in any field of
endeavor).  We can, in that case, tolerate a trademark license that would
prevent things we or our users *might* want to do in terms of derivative
works because we could, at that point, simply rebrand, provided that we're
comfortable with the implications for such modifications as security
support (either because the rebranding is relatively easy or because we're
fairly certain the trademark holder is not going to object to security
support and similar stable maintenance).

Russ Allbery (rra@debian.org)               <http://www.eyrie.org/~eagle/>

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