Discussion: How trademark law affects free software
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This topic has been prevalent in several discussions I've been involved in, and I suspect there might be strong opinions about this among the Trisquel form users. I hope you'll share your viewpoints in this thread to shed more light on this. =)
For example:
* How does the potential enforcement trademark law affect freedoms like sharing modified versions of software?
(The Firefox/Iceweasel trademark controversy comes to mind, though this issue involves several other aspects and probably deserves a thread of its own (again ;-p).)
* How much modification is acceptable before rebranding is expected or required?
* Other aspects?
For those not too familiar with the topic, a baseline is given in this LibrePlanet2016 talk.
I don't expect law school-like reasoning here, so any viewpoints and comments are welcome! =)
As a lawyer I can tell you that the nature of your topic kinda needs "law school-like" reasoning.
Even if you talk with developers and they know what are they talking about, it will be probably because the read a lot about licenses and trademark law.
Now I think that it is important to see that trademark law is not only for software, but for all business. And is not easy to change the law to be more according to GPL.
Why?
Because business like to sue. A LOT.
You can see in the video that you shared that he speaks about a case where the website was in compliance with the Mozilla Public License, yet, is used for scams, which damage the original project (i think he is talking about mozilla foundation).
So now we have a problem that is: I can use the GPL or MPL or whatever license, and use it for bad.
If even now, companies that use free software have to decide whether you can use ZFS with GNU/Linux or not.
Imagine that situation for the whole business, it will meant a lot of lawsuits. Because people wouldn't know when the license is used in the right way.
Now see this as a congressman or as a president. If you change trademark law that much it will mean a lot of chaos. And that is not the way a nation should be governed.
"Now I think that it is important to see that trademark law is not only for software, but for all business. And is not easy to change the law to be more according to GPL."
While the video I linked to propose changing trademark law, I don't know if this is the best solution to potential conflict in redistribution of modified versions of free software.
Maybe there could be defined a new subtype of trademarks that have their own set of rules more suitable for free software? - But if the main point of a trademark is to protect your product or service from misuse (and guarantee a high level of quality to the users), what corporate entity would choose a type of trademark that doesn't provide the same level of protection?
Like loldier states below; maybe it's best to simply avoid trademarks. But this can be problematic as well: say a few people start a libre OS distro that over time becomes very popular and used by millions. The founders use money from donations and selling tech support to become a company and want to protect the name and logo of their OS from misuse. How can they do this without applying for a trademark?
Should the company just accept this risk and not worry about the lunatic next door promoting his own modified, outdated, broken, Donald Trump voting version of the OS with their name and logo to people? ;-p
That is exactly the tricky part.
How can you as the Government protect the people from damages and at the same time give them more freedom?
It is hard to find a balance: more protections leads to less freedom. And more freedom means less protections.
Also, there is the problem of writing the law. Words can lead to interpretations, then lawyers will come with their own interpretations, and the way you interpret the law affects the law, to a point that interpretation can change the law.
What will you do?
Will you listen to those who want to be protected or those who want freedom? Or will you try to find a balance just to be surprised that neither wanted a balance?
This comes to mind.
ogooglebar
It's a (Swedish) word/neologism that Google lawyers deemed inappropriate to put in a dictionary. They thought it would diminish the value of the trademark (brand).
Trademarks are a quagmire. We should avoid them at all cost in free software.
https://www.theguardian.com/technology/2013/mar/27/google-sweden-ogooglebar
Firefox -- I don't quite get it why we can't just rename it for other projects. I don't think that people want the "real" branded thing over similar but renamed software. You can't show your neighbour and boast you're using Firefox the Mozilla version. Nobody would care.
We are standing on the shoulders of giants. In the old hacker culture they used to take some code, add to it, improve it and rename it as a tribute to the original implementation. GNU is not Unix... Firefox -- Iceweasel. Fire and water.
Let's talk about sourceforge.net
Unlike many GNU/Linux repositories, sourceforge.net was used by windows users who didn't know about Free Software.
Under GPL license sourceforge.net was allowed to change the projects they hosted and distribute them, it didn't matter it was Malware, advertising or spyaware what they were injecting, as long as they released the malware under the GPL license.
They were doing something allowed by the GPL License.
Yet they hurt a lot of users and a lot of good projects, like GIMP.
Can you imagine a windows user who was affected by the sourceforge's gimp? She probably won't trust the real GIMP and if you tell her that you use GIMP with GNU/Linux she might not trust GNU/Linux.
The Mozilla Public License does not allow that, sourceforge.net would had faced legal problems if they had distributed a Firefox fork with the same logos and trademarks, but with malware.
So under someways allowing trademarks can protect not the companies, but the users.
Good point! Guaranteeing a high level of quality by use of trademarks is beneficial to users in those cases. Still challenging for freedom 3 though, since the trademark owner wants to approve all mods done to the program when using the same name.
Rebranding can be quite a pain if every reference to the original name has to be removed in all files, and it might create an extra delay before the release of new versions when receiving updates from upstream.
Sourceforge added wrappers to hosted installers designed to inject adware into downloaded files. It has very little to do with trademark protection or quality. The clean files were available if one didn't just click on the first pop-up.
The same way many trademark/brand owners wrap their software in adware infested installers, MacAfee, Adobe Flash et al. Again, no guarantee of quality here.
GNU/Linux is protected not because of trademarks but because of trusted repositories. You can't host your project on someone else's server and expect good faith.
Windows software installation mechanism is flawed. You're not supposed to search the net for executables and install them on your computer. Do not use unofficial sources of software. At least, download it from the developer or the official site.
The same mindset of bundle-ware plays havoc in OEM Windows images, recovery partitions and media. Lenovo (and Samsung) even bundled adware and spyware in their firmware. It gets very scary when hardware is crippled from the outset. The solution is Libreboot and free hardware with free firmware.
I agree completely. I would never say privative software is better.
Overall, what I try to said is that is hard to change the law to be more according to GPL Licenses, because is hard to find a balance between people that wants protection from damages and people that wants more freedom.
Because outside the software world, and even inside, there is a lot of bad people that would use this to damage others, instead of helping.
Thats why I try to make a point of the difficulties of the change. Not that I don't agree with the change. =)
@ loldier:
I've not studied the details of the SourceForge case, but if the technical part is as you describe, I'm sure you're right. =)
Maybe I was unclear regarding the terms "guarantee" and "protection". I was talking about "protection by law" giving a company grounds to sue in case of violations, and not "protection" by any technical aspect (like the use of software repositories). By "guarantee" I simply meant a company's/author's desire to uphold a good name and product. "Linux" is a registered trademark in the US for reasons of legal protection. =)
Trust is another discussion entirely, which is why I did not use the term.
I agree with your viewpoint regarding installation of software.
After all, the objective of a trademark is the identification of a product. It is desirable. Who does not want to know upfront what she is getting?
But then comes the abuses. Such as Mozilla's trademark that prohibits (prohibited?) the sharing of non-modified copies without first changing the names and logos. It makes freedom 2 only accessible to programmers. It should not. And such a trademark policy makes no sense if the objective is the one I wrote in the paragraph above: the product is the *same*. There is no reason to call it by another name or to identify it by another logo.
Forcing modified versions to be rebranded before distribution looks fine to me. Only programmers can exercise freedom 3 anyway. And, contrary to what you write, I do not think it is a hard or a time-consuming process. It is a job for 'sed'. ;-)
@ Magic Banana:
You're right, I guess it's not the renaming that takes time when using automated tools, but rather any functional changes required by the mods when substantial changes to the program are introduced in updates from upstream. =)
Or maybe there are other reasons causing certain rebranded projects to need weeks or a month to follow suit with upstream? (@ all devs: no criticism intended.)
This is one of the things I learned in law school:
Is hard to do a law the right way
No matter how good your intentions are you are gonna miss something, there is gonna be a situation that you could not think about and a lawyer or a judge or someone is gonna change the way the law is interpreted.
Because it is impossible to think of all the possible situations.
Now there are mostly good examples of forking GPL software, wheter it is Trisquel and Ubuntu, Firefox and IceCat, or many others.
But there are many examples of bad use, like almost any mainstream distro that instead of thinking about freedom is thinking about selling and convenience.
I am pretty sure the GNU project is disappointed when they see those distros. But still they can't do anything, as the GPL does not allow them to do anything.
And even examples of evil use like how sourceforge.net use to be.
That is why i think is really hard to change the law to GPL, not because I am against it, but because there is a lot of things that need to be changed before that happens.
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