On Tue, 2005-08-23 at 19:03 -0500, Mike McCarty wrote:
> I was responding to the original question, which IIRC
> was whether GPL requirements possibly conflict with
> the trademark limitations.
Does the software require the trademark to run?
In the case of "Linux," maybe.
As such, Linus could not enforce the trademark down to the anal power
(again, assuming he could under existing law, which I seriously doubt).
But he can claim a trademark and he can enforce it where it does not
conflict with the GPL.
> No. I tried as specifically as possible to point out
> that this was privately held, non-published, trade
> secret, not distributed code. The source was never
> intentionally divulged to anyone, except for contractors
> who signed NDAs.
No, you missed mine and it's the _crux_ of this debate.
What I said was that your company had a written agreement for that
source code. I've seen many of these and the licenser _explicitly_
requires the licensee to _edit_out_ all trademarks. That is an
additional, legal detail that you were bound to because the original
licenser does not want your developers blaming them for changes you
might make.
This has nothing to do with the public licenses where there are not
written contracts. Linus can prevent you from using his mark in the
trade, but he cannot enforce you to remove any reference to Linux in
source code without an additional, written agreement.
> My point is that if a trademark registration can force editing of
> non-distributed code to remove it, then ISTM that it
> certainly can require removal from distributed code, if the
> distributer is not the holder of the trademark.
Here's a key example.
When nVidia released its 3D drivers as open source for XFree86 3.3, they
changed all of the trademarked identifiers. nVidia did that because
they were legally bound by _written_ contracts for that source code.
[ SIDE NOTE: Independent developers then started editing the
identifiers back to their originals, nVidia ran into some legal
"problems" as a result. ]
> Trademarks require removal, not GPL.
But to what level? What context?
If your have a written licensed agreement that says you have to remove
every damn reference, then you do. If you don't, then things change
quite a bit under the law. Instead of a written agreement that is
enforceable, you have an agreement under common law with regards to mark
in trade usage.
> My point exactly. If you take the source to the Linux kernel,
> and attempt to redistribute it, but don't remove the
> trademarked signs from it, then that is a violation.
But you _do_ have Red Hat(R) trademarks all over the place in CentOS.
Same deal with Debian, Gentoo, etc...
CentOS does not license and does not have a written agreement with Red
Hat. CentOS has just removed any "marks in the trade" context
references to Red Hat(R), and has done a good job to do this to the
liken of Legal.
Same deal with Linux(R) now. CentOS does not have a written agreement
with LMI. In the absence of those requirements, it falls to common law
on trademarks. And trust me, they don't go to the anal power.
Like your company's _written_ licensing agreement can and did.
--
Bryan J. Smith b.j.smith@xxxxxxxx http://thebs413.blogspot.com
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