Australian Linux Trademark Holds Water 408
Seft writes "The Inquirer is running a story in response to the recent Linux trademark news in Australia which was previously covered on Slashdot. The story was dismissed as a hoax by many, but now it seems that Linus Torvalds is dead serious." John 'Maddog' Hall stated for the article that the move was not about getting a slice of anyone's action but purely to protect the quality of products that utilize the Linux name.
Text from Sydney Morning Herald (Score:5, Informative)
Linus backs trademark charge, says 'Maddog'
By Sam Varghese
August 19, 2005 - 1:48PM
Trademarking the Linux name and charging for its commercial use world-wide is supported by its creator Linus Torvalds, a senior Linux community figure from the US says.
A recent letter sent to nearly 90 Australian companies, demanding payment of a sub-licence fee that can range from $A200 to $A5000 for use of the Linux name, caused considerable confusion and prompted speculation the fee was a scam.
But in an attempt to clarify the situation in Australia, Jon 'Maddog' Hall, the executive director of Linux International in the US, said a community organisation called Linux Australia had been nominated to handle the trademark issue in this country.
The Linux Mark Institute (LMI) handles trademark issues in the US. In other countries it nominates local bodies to look after things, he said.
Linux is a popular, free open-source operating system that runs on a number of hardware platforms, including PCs and Macintoshes.
Hall said while Torvalds and the LMI did not object to people using the Linux name for legitimate purposes, there were some who tried to limit or block other peoples' business by creating bogus trademark registries.
"We are not blocking anyone's business. If there is a single business out there that is blocked by this issue, please have them contact me," he said.
When asked how open source advocates could fight against the legitimising of software patents and yet charge fees for a trademark, Mr Hall said you couldn't create a product covered by a patent unless you licences it; with a trademark you could change the name and still sell the product.
"You certainly could create and distribute a useful product without having 'Linux' in the trademarked name," he said. "Debian comes to mind. Red Hat Software is another."
Linux Australia president Jonathan Oxer said while patents could stop people from doing the same thing, such as writing a piece of software that was functionally equivalent, trademarks regulated people who wanted to use an identity. "In effect, it's a measure to prevent identity theft," he said.
"Patents can be anti-competitive (or at least anti-productive) in the software world by preventing other people competing on a level playing field. They are specifically intended to grant a limited monopoly."
Oxer said trademarks did not prevent fair competition. "They don't stop anyone else going into business and doing the exact same thing as an existing company. What they do prevent is someone stealing the name of an existing product or company and then using that name to their benefit."
Hall said while the LMI could, in some cases, refuse to grant a sub-licence for use of the name, Torvalds had the final say.
He is the owner of the mark, it is his name. But my experience has been that Linus views this as him holding the mark for the community," he said.
The highest fee in the US is $US5000. "While to some the $US5000 fee may seem like a lot to pay on $US1 million of revenue, we point out that it is only on the revenue generated by the trademarked product, not the whole company (unless the whole company is called 'Linux XXXXXXX'), and there is no upper limit to the revenue that could be made," Hall said.
"We are not trying to limit the use of the name Linux. We are only asking that people help us protect the quality of the Linux name, and ultimately their trademark by both giving proper attribution (everyone) and by helping us fund the cause (the actual sub-licence holders)," he said.
Re:Linus comment please... (Score:5, Informative)
Re:More at Groklaw (Score:5, Informative)
http://www.groklaw.net/article.php?story=20050816
Very interesting read, IMHO.
Linux Mark Website (Score:2, Informative)
Re:Linux Mark Website (Score:3, Informative)
Re:Not so free after all (Score:5, Informative)
Geez, people, learn to distinguish Copyright - Patent - Trademark - Trade Secret! It's not that hard and pretty important if you want to discuss stuff. I thought cognitive sciences has shown that most people can keep ca. 5 items in their mind at any time.
Re:Not so free after all (Score:3, Informative)
Re:I'm scratching my head here... (Score:5, Informative)
A number of people have attempted to clarify this, including on Slashdot. I'll post the full text http://lists.linux.org.au/archives/linux-aus/2005- August/msg00084.html [linux.org.au], since most people seem to dislike reading linked articles.
Subject: Re: Quick press enquiry re LinuxMark enforcement
From: Jon maddog Hall
Date: Wed, 17 Aug 2005 09:25:04 -0400
To: "David Braue"
Cc: maddog@li.org
David,
Your story is quite accurate, LAI is acting in Australia on behalf of LMI, and this is not a "scam".
Since 1995, when an unfortunate incident in the United States showed us that the world is not made of altruistic people and companies, Linux International has been defending the Linux Trademark. At that time an entity had obtained a US trademark on the word "Linux", and was trying to obtain twenty-five percent of the REVENUES of companies that had the word "Linux" in their name, or in their product names. Instead of all the member companies fighting this battle individually, Linux International fought it and won. Unfortunately it cost us a lot of money to do this, despite the pro bono efforts of Gerry Davis, of the law firm of Davis and Schroeder.
Linux International has been defending the Linux Trademark for the world, which due to the costs of registering and obtaining International Trade Marks is VERY expensive. Linux International has spent over 300,000 USD to do this over the years. LI is a non-profit and does not have very much revenue, so some of this money has come from my own personal checkbook. While I can not say how much money I have spent on defending the mark per se, I can tell you that I have spent about 250,000 USD of my own money in keeping LI alive. I am not looking for medals or a chest to pin them on. I am only stating this to show people that this is not a "scam", nor is anyone making any money off this other than the international legal and trademark community, and I am sure that they are necessary and justifiable fees. Certainly Jeremy Malcolm has seemed to be above board and conscientious in all of our dealings with him, as has Jonathan Oxer and the rest of the fine people at LAI.
After a while the board of Linux International recognized the advantage of forming a separate non-profit, the Linux Mark Institute (LMI). We need LMI to be self-funding, and following trademark laws in the 200 countries of the world is very expensive. In addition to the normal issues of a company obtaining a trademark of their own product, using their own name, we have issues such as:
o "Who owns the right to use 'Linux'"
o "Who (therefore) has the right to the broad name 'Linux University'?"
o "Can there be more than one "Linux University? If so, what should its name be?"
o "If I call my company 'Linux Experts', does this mean that I am the only group of 'Linux Experts' worldwide?....shouldn't everyone come to me because I called myself 'Linux Experts'?"
as well as the issues of people who wish to use the name in bad ways (as a pornography attractor or on items confusing to the Linux market).
We have tried to make the licensing as unobtrusive as possible, tailored to the amounts of money that people might be making off the use of the mark, and with an eye to keeping the cost to non-profits and user groups as low as possible. We also have to re-license the name periodically so we can protect against "name squatting" (ala URLs) and defunct entities who no longer need the name they registered.
The trademark laws of the world were not created in the days of the World Wide Web, or even the Internet, where unscrupulous people can take advantage of a good name for a good idea and create havoc for people who want to start legitimate industry in their territory under a mark that is registered in some other coun
Re:I'm scratching my head here... (Score:4, Informative)
Trademarks are a GOOD THING. (Score:3, Informative)
Linux is a very important identity for the software industry, and I'm glad someone out there is doing something to protect it from being vandalized and abused.
It is about trademark protection (Score:4, Informative)
Actually, Linux itself is still free (Score:5, Informative)
It's fair but stupid (Score:5, Informative)
1. If the Linux(tm) mark is not looked after, it will become junk.
2. "Looking after a mark" means getting a trademark and enforcing it.
3. Enforcing a trademark means preventing others from abusing it (using it for contradictory purposes, trying to trademark it themselves, etc.) All these abuses have happened with Linux.
4. This kind of enforcement costs money, and often quite a large amount of money.
5. It's normal that the people who use the Linux mark in their business should pay this, proportionally. They benefit from a well-protected mark.
Lincensing and paying money for things we're used to getting for free is a bit sad, but in the real world. people do mean and unkind things when money is involved. This means: if you like Linux, if your business depends on it, and if you want the word to mean anything at all, you should be willing to pay for this.
Ultimately, though, Linux will become (IMO) the commodity OS just as TCP/IP became the commodity networking protocol. Within 5-10 years, no-one will pay much attention to this.
From this perspective, asking licensing fees, even small ones, will slow down adoption. It creates one more barrier for people who have Linux-related business ideas.
What I would have done is to license the mark and pursue those who abuse it, but allow free licensing for those who comply with certain criteria - especially non-commercial open source projects.
Re:Wrong spirit... (Score:3, Informative)
Linus (nor his representatives) is NOT asking for any money from these companies. The letter mentions that they MAY be required to pay in the future, but it's not asking any money now, nor does that mean that they will be expected to pay in the future! It merely mentions something that may or may not happen in the future.
Re:Not fair to very small projects (Score:5, Informative)
From Groklaw [groklaw.net] again:
Examples of Fair Use.
If you are a journalist interested in writing articles that include the term "Linux," you do not need a sublicense. If you are printing up pencils, stenciling T-shirts, or distributing coffee cups with a legend on them like "Linux®is the greatest!" or "Even my Mother uses Linux®!" this is normally considered "fair use".
But I'm not a legal expert, so you might want to invetigate on your own.
Indeed. (Score:5, Informative)
Speaking of abusing someone's good name, Jeremy Malcolm, the attorney in charge of sending out the licensing letters in Australia, has a long history of voluntary and pro bono work for the Internet and open source communities. This includes serving on the boards of the Internet Society of Australia, the Western Australian Internet Association, Electronic Frontiers Australia, the Society of Linux Professionals (WA) and the Australian Public Access Network Association. He also received the Community Award in the 2004 AUUG Australian Open Source Awards for outstanding contribution to the understanding of para-technical and legal issues surrounding open source within the Australian context. He isn't a Scientologist and never has been, by the way, although he believes in freedom of religion for all.
Don't you hate it when the mainstream media doesn't bother to check their facts? Why do what they do, then? The community stands for ethics, does it not?
- Groklaw article [groklaw.net]
As much as we techies usually investigate things, we kind of dropped the ball on this one.
Re:Free as in speech (Score:5, Informative)
If I remember correctly, Firefox has this restriction, because people were modifying the source code (introducing bugs), compiling it, and calling the result "Firefox". Naturally, when those bugs start affecting people, they go bother Mozilla.org instead of the people truly responsible for the bugs.
It seems to me that trademarks are completely compatible with Free Software - it's one thing to share software freely, fork it, modify it, etc, but it's another thing altogether to cause problems for the original project because you pass your hacked versions off as the originals.
Re:More at Groklaw (Score:4, Informative)
You only need to pay the fee if you are using the word "Linux" in your own trademark. If you were a non-profit wishing to distribute Magada Linux, you could either trademark "Magada Linux" and pay the fee or trademark "Magada" and not pay the fee.
You can still market Magada Linux either way.
Re:More at Groklaw (Score:5, Informative)
In other words, not-for-profits are NOT going to be shaken down, they can continue to use, comment on, write about, and give away Linux all the want. But if they want to create a for-profit business that will use "Linux" in the name, trademark laws come into play and they will need to pony up money. Simple solution: Call it Knoppix, or the like. Problem solved.
Re:Not handled well (Score:2, Informative)
From Linuxmark.org:
If you or someone you represent wishes to use as a trademark some variation of a mark or trade name including the element "Linux", please submit the online application for a license. LMI will review your application and let you know within a few weeks whether your proposed use of the Linux mark has been approved. If your application is approved, LMI will forward to you a signature page for execution. LMI reserves the right to deny permission to uses deemed inimical to the Linux community as a whole.
In the sole judgment of Linus Torvalds and his advisors, sublicensed marks must not preclude others from reasonable variations of the Linux mark and should not confuse the public into believing that the particular user and its mark or trade name are somehow an exclusive source of a Linux® product. For this reason, we have declined in the past to sublicense proposed marks that would suggest such exclusivity, and/or would preclude other reasonable uses of the mark and other variations thereof. If in some unusual circumstances the proposed scope of use of the mark is not acceptable but the proposed use may be easily modified and approved, LMI will return your application with the proposed changes included.
Re:They could have done a lot better... (Score:3, Informative)
You've got it wrong. Whether you pay the money or not, you can't misuse the name. Microsoft can't put out a version of Windows called "MS Linux" without Linus' permission. If it's software, and not Linux, he can tell them not to use the term "Linux" with it. How much kernel code they have to use would be something of a question, but they'd run afoul of the GPL anyway.
Charging the nominal fee is just to fund the enforcement effort.
They're just protecting the name "Linux" from genuine abuse. Sending it to everyone with "Linux" on their web site is like the notice stamped into my crowbar that says, "WEAR EYE PROTECTION". It's just legal CYA. If they didn't do that, they could lose the trademark, which would be a disaster for Linux.
And sending email is the only cost-effective way to do it.
Re:A dark day in the history of Linux - what now? (Score:1, Informative)
Slackware - first line of their webiste says "The Slackware Linux Project"
Debian - The 2nd line of their says "Debian GNU/Linux provides more than a pure OS"
Gentoo - First line of their website "We produce Gentoo Linux, a special flavor of Linux"
Ubuntu - Their website IS "ubuntulinux.org"
Suse - First line of their website says "SUSE LINUX Professional 9.3"
Fedora - Ok you've got me here. No where on their site can I find the word Linux in their name. However Red Hat's treatment of CentOS should be enough of a worry to not use something they fully sponor and use for alpha testing of Red Hat Enterprise Linux.
So we're still without a free OS again.
Re:Uh huh. (Score:3, Informative)
"Fair use" only applies to copyright. Trademarks work exactly as you describe: you cannot creating a product in the same market (e.g. computer software) with the term Linux. Period. It doesn't matter if its "a context that's not associated with Linux" or not.
Quality of posts? (Score:5, Informative)
Are the above posts really representative of the opions of most of us? It seems to me I've seldom seen so many confused people...
- "the story is just wrong", "this is just FUD"
Well, it's not... hasn't enough material been presented to convince you?
- "what is really going on here?"
This is a simple trademark defense. [The simplest possible explanation is the most likely one.]
- "blatant misuse of power"
Ehm, no... see above.
- "The mark has been in use for a very long time without any intervention by the said trademark holder."
Do you get the part that you must defend your trademark or you can lose it?
"Also $5000 does not garantee that their is a quality product."
The fee pays for the quality of the trademark, not the product.
"why not liscense for $1."
Because the license fees need to be reasonable. When push comes to shove, your defense of the trademark needs to be defended in court. Token effort is likely not going to be deemed sufficient.
'nuff said...
Re:Lesson 1: Proof read (Score:3, Informative)
1/8 of 0 is still 0.
Re:Quality of posts? (Score:2, Informative)
Because the license fees need to be reasonable. When push comes to shove, your defense of the trademark needs to be defended in court. Token effort is likely not going to be deemed sufficient.
Ahem. Token effort to do what? Rip off any and all users of said trademark, perhaps? May I point you, kind sir, to the facts?
The lawyer in question is stating, among other things, that LUG's *will* have to pony up. This is no "simple trademark defense". You don't defend something from people upholding it.
Re:Richard Stallman right after all? (Score:2, Informative)
Re:More at Groklaw (Score:3, Informative)
Re:Quality of posts? (Score:3, Informative)
Read this [linuxmark.org].
For one, LUGs are probably not going to have to pay up. I can't see how they are offering a "product or service" to the public. They generally aren't even registered as companies. You're either in the group, or not. They're not selling something.
For second, even if they did; the license fee could be as low $200 a year. I registered my own company earlier this year and at that time, the contact at LMI I had claimed that they will even work with sublicensees on that price. If everyone in the group can't cough up a combined total of $200 over twelve months to help defend the thing the group is all about in the first place... get another hobby.
They're not trying to "rip off" anyone. LMI is registered as a non-profit organization. They're just looking to build up a war chest to defend Linux with if they have to. The more Linux is used in the business world, the more important this becomes. It's that simple.
Re:Quality of posts? (Score:1, Informative)
The only rip off is by those who want to include the Linux trademark within their own trademark without permission.
A trademark is a unique identifier. Linus defines what it is that Linux is the name of. If you want use the Linux trademark to identify the same thing that Linus uses the trademark for, then you don't need any permission. That's Fair Use. If Linus, you, and I all are pointing at the same thing and calling it Linux, then there's no problem. The trademark identifies a unique object. The holder defines the object.
If you use "Linux" to mean something else, then it's no longer unique. He has to stop your misappropriation of his trademark, or he loses it. But he has the power to do that. It may cost money, so he has asked the community to help pay for the defense of the trademark.
The tricky part is that he can lose the trademark by giving permission to the wrong people. You may be covered if he allows you to call something else Linux, but then someone else can come along and show that Linux isn't a unique identifier any more, so it should lose trademark status. That sucks.
So he needs to have signed legal agreements that not only give you permission to call something Linux, but also define what it is that you are going to call Linux. That's what he needs to defend the trademark. He needs to have a lawyer write those agreements, and that costs money. You should consult a lawyer, too.
Nobody likes this. But the Linux name WILL be ripped off if it isn't trademarked, and it won't stay trademarked without jumping through the hoops required by the law. It sucks, but it's not a rip off.
Use the plain and simple Linux trademark to refer to Linux, and you're covered by Fair Use. If you want to combine the Linux trademark with something to make a new trademark, then you need to jump through some hoops. With Linus, when I'm sure he has better things to do. Guess who should pay for that.
This is no different than using GPL code. If you don't want to release your code under the GPL, then don't include GPL code in it. If you don't want to license the Linux trademark, then don't include the Linux trademark in your own trademark.
How hard is that?