Re: My take on trademarks vs. copyright, patents, etc.

[Arthur Torrey]

Much trimmed for (slightly better) brevity...  My previous paragraphs marked w 
#, Jean's marked with % My new stuff with &

Date: Mon, 2 Nov 2020 10:33:39 +0300
From: Jean Louis <bugs@gnu.support>
To: Arthur Torrey <arthur_torrey@comcast.net>
Cc: libreplanet-discuss <libreplanet-discuss@libreplanet.org>, Richard
        Stallman <rms@gnu.org>
Subject: Re: My take on trademarks vs. copyright, patents, etc.

* Arthur Torrey <arthur_torrey@comcast.net>  [2020-11-01 23:04]:

   # I agree with RMS about the badness of patents and the desirability
    of copyleft (which REQUIRES copyRIGHT to work!) but as far as I am
    concerned, trademarks are generally a good thing and should be
    protected...


% When software author prevents people to modify software and issue
modified software under original name that IS practical obstacle to
share software. 

& Trademarks don't stop you from modifying, or issuing modified software under 
a different name, this is sometimes called FORKing the code....  (assuming you 
don't want to share your mods upstream / upstream doesn't want to include 
them...)  Trademarks ONLY serve to keep you from distributing your modified 
version under the SAME trademark

% By principle I should be able to modify software AS I WISH, right?

& Yes, absolutely...  However you should not be able to use someone else's name 
in distributing your modified version.  You may be benign, but there are bad 
actors out there that might want to damage your reputation, or cause other 
harms...  

& In my previous post I mentioned the vi vs. viGOR story...  It is ancient in 
computer terms, but there is a web comic called User Friendly 
http://www.userfriendly.org/, and C. 2003 they had an arc involving a semi-evil 
genius attempting world destruction by creating a modified version of 'vi' that 
added a version of Microsoft's (not-so) helpful "Clippy" to an otherwise stock 
'vi' and attempting to make it go viral.  It was fiction when written, but the 
free software world being what it is, someone promptly was inspired to create 
it... See 
http://vigor.sourceforge.net/index.shtml  

& I have no idea if 'vi' is trademarked, I never looked, but if "I" held the 
'vi' trademark, I would be seriously upset if someone started distributing 
'vigor' under the vi name, as it is NOT the same program....

& I want to be sure that if I download a copy of 'vi' (or get it in a distro as 
part of the install) I get the REAL vi, not vigor....  (actually these days I'd 
probably get vim, but the vi command starts it just fine...)

% When there is such clause that I cannot name software as I wish, I am
thus not free. So for me, independent of other people' opinion, such
trademark clause is making software non-free, as it forces me to
modify the command name, or name of software prior to distribution.

& You are forced to change the package name you distribute under, you are NOT 
required by trademark law (but may be by licensing or other restrictions) to 
change the command name, or any other detail...

& In physical object land, it is possible to make and sell a motorcycle (and 
there were companies that did) made with 100% aftermarket parts, that appeared 
identical to a Harley in most respects (and some claimed to be better)
However you could NOT call it a Harley-Davidson, as it was not made by them - I 
think that this was eventually ruled illegal because of 'look and feel' 
infringements, but AFAIK, it is still not clear just how the line is drawn 
between legal and not...  More significantly, many of the clones were crap, 
which made the general idea less popular, and also market conditions changed so 
there was less of a shortage of 'real' HD's so not as much demand for the 
clones...

% Obstacles like that are popularly made by Mozilla or by Rust. For that
reason many GNU/Linux distributions decided to fork Firefox and change
its names. That is why we have "Iceweasel".

& And I'd be willing to lay odds that if you started distributing a package 
with a modified version of Iceweasel that worked the same but sent all your 
data to Fakebook, and did NOT change the package name, there would soon be 
lawyers banging on your door....

% It is great obstacle to modify 2809 occurences of the term "rust" in
Rust programming language. 

& But unless the Rust license requires that, you aren't required to by 
trademark law...  Even if you were, it doesn't seem that hard to do a 'search & 
replace' w/ most editors...

% Imagine if `gawk' is trademark (maybe it is) and that copyright holder
also requires that modification to gawk must change the name of the
gawk due to reason that gawk is a trademark. That would automatically
break all the other scripts depending on gawk. 

& Repeat; trademarks only require you to change the name of the package, not 
how it is called...  However there are also things like aliases, or even a 
simple script called 'gawk' that calls whatever your modified program is 
called...  Now if you changed the options / command syntax, etc. there would be 
problems, but nothing requires any changes to the interface...

% It is NOT ALIGNED with four freedoms! Imagine if GNU or trademark
holder would start imposing trademark on people who innocently improve
`gnumeric' or `gnucash' and call it `gnumeric-improved' or
`gnucash-ng'. What would then happen? Would we making friends this
way? Would we be helping people to share software or putting attention
how to sue them for some money?

& IANAL, but my understanding of just how much one must change a package name 
to avoid infringing a trademark is that is a bit 'fuzzy' but the basic legal 
principle is that the change need only be enough to make it clear that the 
changed version is not the original, and not the product of the original 
developers...  I believe this would rule out keeping the same name and tacking 
a modifier on the end, as it would be unclear that this was not a 'gnumeric' 
version as opposed to a product of a different developer...  

% Such trademark policies on software names may not hold water in many
countries including in the US.

& The details of policy / legal enforcement are tricky (lawyers hate 
simplicity, as it keeps them from getting the big bucks for dealing with 
complexity) but the basic principle is clear - you can't sell your product 
based on someone else's name and reputation...

% One cannot just relinquish the trademark use by giving it to users as
"command name" and later claim it is trademark. It is arguable by law
in the US and by law in other countries. That is "losing trademark
control". <snip>

& Again there are mixed cases on this, but I'd agree that it is better to have 
a distinction.  However it isn't 100% essential...  As I understand it, there 
can be a separation drawn between sharing a user interface (which would include 
a command) and a product name / brand, especially if it has a logo attached to 
it...  Note how FireFox has a logo, and that is what's trademarked...

<Balance trimmed>

ART

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Arthur Torrey - <arthur_torrey@comcast.net>
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