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Re: cowsay could attract copyright and trademark enforcement action

From: Philip McGrath
Subject: Re: cowsay could attract copyright and trademark enforcement action
Date: Sat, 17 Jul 2021 01:46:28 -0400
User-agent: Mozilla/5.0 (Macintosh; Intel Mac OS X 10.14; rv:78.0) Gecko/20100101 Thunderbird/78.11.0

On 7/16/21 6:26 PM, Leo Prikler wrote:> As others point out, it is debatable whether or not such a trademark
can be enforced, but what we should be discussing -- and I'd be more
than happy to be wrong on this -- is whether or not the cowfiles can be
distributed under GPL-compatible terms/in accordance with the FSDG.
These files seem to me to be non-functional data, analogous to game graphics, which the FSDG do not require to have free/libre licenses. Just as firmware is still code, even if it is represented as an array of numbers, I think ASCII art templates are data, even if they are embedded in Perl fragments.

(In the Lisp tradition, I think the distinction between code and data is a fuzzy one, but this case seems fairly clear to me.)

On the broader issues, I also am not a lawyer, but I would expect all of these files to be protected by the rights of fair use, fair dealing, and other limitations or exceptions to copyright. Limitations and exceptions seem to trademark law also seem to apply.

Fair use and analogous rights are vitally important protections of freedom, including software freedom. For example, in the recent case of Google v. Oracle, fair use was the legal right which protected the freedom of the Java APIs. (The decision also left open the possibility that APIs may not be copyrightable at all.)

Apparently these files are over 20 years old and have been widely distributed without objections. If Guix were to remove these files, we would implicitly be disagreeing with the apparent community consensus and saying that users do not have the freedom to create, use, or share such cowfiles. That's not a position I think Guix ought to take, especially not against the apparent consensus of the broader free software community.


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