David Nalley wrote:
What that really gets interpreted as is: RHT thinks that Fedora
contributors a) don't care about, and can't be trusted with the Fedora
brand and would engage in activities that would sully it's reputation.
b) RHT thinks that there are currently problems that are so egregious
with what we are doing now that they must be fixed despite the fact
that it's been going on with few complaints for many years.
As Red Hat Legal, I would like to address this point. I think that
Fedora does a fabulous job managing its brand, better than many
companies do. The problem is that, as you mentioned in a different part
of your email, trademark law is ill-equipped to deal with the
organizational and management structure of an open source project.
Trademark law is used to traditional companies, where you have
employees, subsidiaries, licenses, etc.
It is well-established that the trademark owner has to control the
quality of goods and services with which its trademark is used, and that
not exercising adequate control can potentially result (as Tom
mentioned) in a finding of "naked licensing," which means that the
trademark is invalidated. This is clearly not an outcome that the
Fedora community can allow to happen. The elephant in the room is the
Freecycle case, which you can read here:
http://www.ca9.uscourts.gov/datastore/opinions/2010/11/24/08-16382.pdf.
In my personal opinion it's a horrible, wrong decision, and I've railed
against it personally
(http://www.propertyintangible.com/2010/11/ninth-circuit-ignores-law-again.html),
but it is the current state of the law.
So I'm left with having to do some line-drawing. I have to be able, if
in court, to say "these people have a special relationship with Fedora
that we believe gives us a basis for entrusting to them the judgment on
whether a product is of sufficient quality that it can be called
'Fedora,'" along with being able to demonstrate that they have, indeed,
exercised good judgment. I believe I can defend Ambassadors in that role
- they have had a long-standing relationship with Fedora and have
demonstrated their understanding of brand values. I am stuck at where
else I can draw that line (other than more protectionist). The
Freecycle case demonstrates that just being a participant in a loose
common-interest community isn't good enough, so allowing any community
member to do as he or she pleases is not a position I can defend in court.
So the decision making has nothing whatsoever to do with a lack of trust
in the Fedora community. I think the Fedora Community does an awesome
job, but I have to also be able to defend the Fedora trademark if
challenged under a very unforgiving legal standard.
Pam
Pamela S. Chestek
Sr. IP Attorney
Red Hat, Inc.
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