All,
Sorry for the delay in response; I took ill on Wednesday and finally
made it back to work yesterday. Thanks for your comments, again they
were very helpful. I've added mine below and I've also updated the wiki
version of the agreement with some of the changes so you can see them in
the actual document.
Also, just to confirm for Richard, we'll be adding this sentence to the
TLA and the Trademark Guidelines: "The '?' symbol should be placed after
the first or most prominent use of the FEDORA Mark and the 'TM' should
appear after the first or most prominent use of the Infinity design logo
unless your editorial convention is never to use symbols with any
company's marks, including your own." I can't add it to the wiki version
of the agreement because it's on an exhibit, although the original I
have on my computer has been amended. We just have to coordinate adding
it to the Trademark Guidelines also, but we will.
Scott Glaser wrote on 09/08/2009 07:44 PM:
Paul,
I see four issues with the document in its current state:
1. There is no verbage defining what is cause for "termination or
expiration of the License". It would be good if examples were included
in the document explaining
what is cause for termination or expiration of the license.
Paragraph 3, "Termination," defines what the main reasons for
termination of the agreement are. They are (1) material breach after
notice and (2) when there is a legal claim.
There are two other paragraphs that had also mentioned termination, the
former "Content Control" paragraph, reworked as discussed below, and
Paragraph 11, "Partial Invalidity." In paragraph 11, a party can
terminate the license if the contract goes to court and it is so changed
by the court that it "unreasonably compromises the rights or increase
the liabilities" of a party. The paragraph was originally written just
in favor of Licensor but I changed the paragraph to make it apply to
either party.
I removed two sentences in paragraph 6: "Licensor reserves the right to
terminate this Agreement as a result of any misuse by Licensee of any
Trademark. Licensee agrees that the Licensee will incorporate the
appropriate ? or TM after the use of the Trademark as described in the
Licensor's Trademark Guidelines." I hope that eliminates some of the
concerns about undue termination.
A contract is generally considered "expired" when the term of the
contract is over. In this case, though, it renews automatically unless
one party takes a positive action to end it, which is sending a notice
letter 30 days in advance of the anniversary date. So it expires at the
end of the term, provided notice is given.
In summary, there should be only four events that might cause the
contract to end: material breach after notice; a legal claim; partial
invalidity; and the end of term assuming 30 days' notice has been
provided. If there are any other places I've missed please let me know.
2. Why is there no verbiage in the TLA that the the registrant of
the domain name would be reimbursed for their remaining expenses
(domain registration/transfer fees) if the domain is registered for X
amount of time and that time exceeds the life of the license?
I think this would foster a better relationship with the community by
doing so, as the expenses would be trivial to the Licensor should a
domain need to be turned over.
If the termination is because the licensee has materially breached the
agreement, it doesn't seem appropriate for Fedora to pay a breaching
party for the domain name. Any payment would also be out of Fedora's
budget, so it's their judgment on under what circumstances and what
amount would be appropriate. But I agree that it's probably a trivial
amount, so it shouldn't be a hurdle either way.
3. What is done if the trademark is sold or the licensor goes out of
business?
Big question here, but it should be addressed in the agreement.
If the trademark (or Red Hat) is sold, the new trademark owner would
acquire these licenses also. It would then have the benefits and burdens
of the contracts. I believe the way the contract is currently written is
as favorable as it can be for the licensee. Often a trademark license
will terminate immediately on change of control of a company, which
isn't the case here.
If Red Hat goes out of business, then the trademark would be an asset of
the bankrupt company and disposed of in the bankruptcy. There are
special rules that apply in bankruptcies that would override any effort
in the contract to control what happens.
Trademark Control: might be a better title for that section as it is
what is being discussed.
Changed.
However I also believe that was an incomplete thought I jotted down,
I meant to make this two points:
4. What would be defined as objectionable by the Licensor?
I think that this is self explanatory we need to know what would be
considered objectionable by the Licensor.
In a situation where there is content that the Fedora Project or Red Hat
might find objectionable, they would have to identify how that content
was a material breach of the terms of the agreement. One place would be
the sentence that says "Licensee may not make available at the Domain
Name(s) or Web Pages any content that is unlawful, defamatory,
infringing, obscene, fraudulent, hateful, or racially, ethnically or
otherwise objectionable and may not disparage Licensor, Licensor's
products, or the Fedora Project." These words and phrases - "unlawful,"
"defamatory," "infringing," "obscene," "fraudulent," "hateful,"
"racially, ethnically or otherwise objectionable" and "disparaging" -
for the most part define specific types of legal wrongs requiring
specific elements of proof. For example, defamation requires a false
statement, so if there's no falsity there's no defamation, no matter how
much Red Hat or the Fedora community as a whole might not like the
statement. So there are contractual limits on what Red Hat can claim is
a material breach. I have also removed the part of the sentence that
said "and may not disparage Licensor, Licensor's products, or the Fedora
Project." I expect that's one phrase that was most offensive, and also
subject to more legal ambiguity than the other words, so I removed it.
So I've removed the "disparagement" portion and I've removed a couple of
sentences (one in paragraph 6 described above and one in paragraph 5
described below) that perhaps could have been used to claim material
breach for merely critical language. I'm hoping that removing these
alleviates the majority of your concerns about unfettered behavior by
Red Hat or Fedora. If there are other spots still remaining in the
contract that you believe Red Hat or Fedora could misuse to terminate
the contract, please let me know.
I'm also happy to have more discussion on how we might be able to define
what would be unobjectionable if you let me know what kinds of things
you believe might aggravate Red Hat or Fedora but that shouldn't be a
basis for termination. For example, constructive criticism of Fedora
Project policies or processes, or of the performance of either Red Hat
Enterprise Linux or Fedora distributions of Linux, are two topics that I
can readily say would not be cause for termination.
5. If Licensor determines that Licensee is using the Trademarks
improperly, and/or in connection with goods or services not covered
under this Agreement, Licensor will notify Licensee, and Licensee will
remedy the improper use within two (2) business days following receipt
of such notice from Licensor.
What is meant by improper usage of the trademark and/or in connection
with goods or services not covered
under this Agreement? Does that mean if the Licensor does not agree
with the content of our site based on the topic heading (Content
Control) that the license could be revoked? Or if we are not following
the trademark guidelines to the letter that the license could be
revoked? Keep in mind this applies to many of the sites out there that
cover topics that can not be handled by the Fedora Project proper (i.e.
Third Party drivers).
I see your point; the sentence created ambiguity where none was
intended. I took the two sentences out entirely.
Also on point 5; two business days is a pretty aggressive schedule for
hobbyist sites, I think five business days may be more amiably
accepted by the community as a whole as most of us do this in our spare
time and with real life commitments two days may become an issue
depending on the nature of the request.
I agree, it's been changed to five.
Let me know if there's anything I missed,
Pam
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