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

[Jean Louis]

* 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. It imposes expenses, efforts and waste of time. It is
not common in software sharing. And by opinion of myself and other
people, not everybody, it is obstacle to freedom.

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

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.

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".

It is great obstacle to modify 2809 occurences of the term "rust" in
Rust programming language. Language was not made in a form of a
template with some variable @@TRADEMARK@@ so that such can easily by
replaced by changing it in Makefile: TRADEMARK=My-Must-Language

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. Did I get freedom
really to modify software as I wish? No, I did not. I have to modify
the software HOW THEY WISH, as I am forced to change the trademark
word to another one.

And as developer I may get the same obstructive idea to prevent others
using my trademark when I convey software to them. It becomes mess.

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?

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

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". Program was released with intention to be used by many
people and people would automatically speak about command name in
computing. It is questionable which court would give right to
trademark holder.

Because both Mozilla and Rust KNOW THE ABOVE statement, that is why
they are making it very clear upfront before somebody starts doing
it. If they would not make it very clear they would not have any legal
chance in court.

Companies as Mozilla confuse users, they impose restrictions that are
not even meant to be by the trademark law and people believe it, and
also try to comply to it.

Trademark law is not planetary and does not affect automatically users
in other countries just as copyright laws are not same in various
countries. Imposing such "trademark use" policies in the US is futile
if developers from other country wish to use the trademark completely
legally in their jurisdiction. Imposing planetary "trademark policies"
on software use or users or commercial companies is simply not
viable.

For free software developers:

1. Do not use your trademark within or on your software. Use it on
   your website, use it on business cards, letters, in your
   communication or marketing. Do not make system commands by using
   your trademarks. If you do, relinquish your rights to users. Do not
   impose that modifications of software require change of name of the
   software. Separate your business trademark from software you are
   producing.

   If your company is called Python, then use trademark for sales of
   your programming language or donations, whatever, but do not call
   your programmin language same as your trademark. In other worsd, do
   not trap users and don't make us problems.

2. If you use your trademarks on free software, then please use them
   to give freedom by using trademark law, just in the same sense as
   GPL is used to give freedom. In other sense make it tradeleft
   similarly as copyleft.

   There is something called collective trademark and certification
   mark in United States. See:
   https://en.wikipedia.org/wiki/Collective_trade_mark and
   https://en.wikipedia.org/wiki/Certification_mark thus

   A collective trademark, collective trade mark, or collective mark
   is a trademark owned by an organization (such as an association),
   used by its members to identify themselves with a level of quality
   or accuracy, geographical origin, or other characteristics set by
   the organization.

   Certification marks differ from collective trade marks. Collective
   trade marks may be used by particular members of the organization
   that owns them, while certification marks are the only evidence of
   the existence of follow-up agreements between manufacturers and
   nationally accredited testing and certification organizations.

Now, proposals for GPL 3 improvements:

- make software authors unable to make obstacles by imposing change of
  name of software when software is modified, as that is against
  four freedoms.

- or less desirable IMHO, automatically certify every receiver of
  software and give them rights to use the trademark as certification
  trademark: (PUT YOUR TRADEMARK) free software user.

GPL and copyrights are very complex. Huge collection of DMCA notices
on Github prove that people get very confused, as developers in first
place are programmers and not attorneys. Not even attorney would ever
understand the GPL in the same day, it would probably require several
days or weeks of verification to understand it. Using trademarks on
top of GPL to impose obstacles to users is unjust as it goes straight
against the four freedoms to modify as I wish, and not to modify as
you wish.

Example:
https://www.python.org/psf/trademarks/

> We do not want these trademarks to be used: to refer to any other
> programming language

Comment: this in large was never a problem in free software
world. When something is not a problem one does not need to find
solutions for that.

> As such, stating accurately that software is written in the Python
> programming language, that it is compatible with the Python
> programming language, or that it contains the Python programming
> language, is always allowed

If I make modification to Python and make things incompatible to
original Python, I should not use "Python" as term? WTF?

Imagine if LISP is trademark, we made so many incompatibilities with
original LISP in variety of implementations that we would now all be
in trouble for trademark reasons. That does not fly.

What if C programming language was protected as trademark from its
inception? 

When making free software programming language, or specification do
not bundle it with whatever nasty trademark obstacles.

> Any commercial use of the PSF trademarks in product or company names
> must be approved first by the PSF.

Well guess what? Modifying Python sources and putting it on a public
server is already "commercial use of trademark". They call it
"commercial" but mix the terminology as commercial does not imply
money involved. Now if innocent developer have modified Python sources
and still call it Python is to denounced or sued, because person did
not get "approval" to use "Python" and maybe because person did not
make the new version compatible with the original version. That is
AGAINST four freedoms to modify software as ONE WISH.

"For mobile apps and other software products, the launch of the app is
typically considered use in commerce. Beta testing may or may not be
considered sufficient depending on the extent of the testing." from
https://www.upcounsel.com/trademark-use-in-commerce#use-in-commerce-for-software

Jean