protecting trademarks and branding

Forrest J. Cavalier III mibsoft at
Tue Jun 1 19:42:52 UTC 1999

>>  4. The electronic and printed documentation external to the source
>> code shall not be distributed.
> It's best to just put a separate license on the documentation, then, rather
> than make this provision part of an Open Source license, becuase it would
> probably get certified this way. You aren't trying to prevent someone else
> from writing free documentation for your product, are you?
The correction (in a separate message)
       s/probably get certified/probably not get certified/
is noted.

Good point about the free third-party documentation, my clause
needs work or needs to be dropped.


Regarding the clause about trademark, it is something that other
licenses have (BSD, Apache.)  

I think it is very important and helpful to include a note about
acceptable uses of trademarks, because it leads to voluntary
compliance instead of "after the fact" communication, (or litigation)
to eliminate violations.

My followup questions...

   1. What is gain/lost (for the user and the developer) when
   trademark and copyright terms are moved out of the license terms
   and into mandatory auxilliary notices? 

   2. When is it acceptable to include a statement of existing 
   laws/treaties in the license proper, as a term and condition
   of the license? Is it a problem (or against the OSD)
   to make existing laws a term of license compliance?

Including compliance terms would seem advantageous/necessary
when software was going to be distributed to countries where
laws and treaties did not apply, for instance.  The BSD and
Apache licenses (as well as the one I proposed) restate trademark
laws.  Other licenses restate copyright laws.  

Having the terms in the license have the effect of revoking
license rights of any trademark and copyright violators.

This seems pretty fair to me.  The only way to penalize such
violators otherwise would be a lawsuit and judgement (which would
be predicated on actually having a registered trademark, showing
actual damages, intent, etc.)  It is less clumsy to make trademark
compliance part of the license, I think.

I am familiar with the objection that the license should not
be used to enforce other laws.

The patent revocation clause in the first version of the Apple open
source license was objectionable because it included MORE than a
restatement of existing laws, if I understood correctly.  And it
could lead to pulling the rights to use source after it was acquired,
and after a third party notice/action.  That case seems different 
than this.

Bruce Perens suggested that an auxilliary notice be included in
the license, instead of the license body.  

    3. Is it acceptable to include a requirement in a license that
       auxilliary notices always accompany the source and license?

       The Apache license does this, (places the Warranty disclaimer
       after the license terms.)  

I have to think about this method.  What is the legal penalty for
non-compliance (i.e. not including the notice)?  How do you
force violators to comply?  What laws have they broken if the
notice is altered or dropped?  Is the warranty still disclaimed?
Can someone say that they agreed to the license and not the
disclaimer?  How do they incorporate such software into their own
projects? (And probably other questions...)

Giving license rights to copyright and trademark violators is
a pretty tough sell.

Forrest J. Cavalier III, Mib Software  Voice 570-992-8824 
The Reuse RKT: Efficient awareness for software reuse: Free WWW site
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