namespace protection compatible with the OSD?

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> >-----Original Message-----
> >From: Brian Behlendorf [mailto:brian at collab.net]
> >Sent: Tuesday, April 17, 2001 4:39 PM
> >To: license-discuss at opensource.org
> >Subject: namespace protection compatible with the OSD?
> >
> >Let's say I created a specification for an interface in Perl; call it
> >Foo::Bar.  Let's further say I published the specification, and a
> >collection of code that implemented it, under a BSD-style license, with
> >the sole added clause that any derivative work that changed the
> >implementation in a way incompatible with the specification for that
> >interface, needed to call its interface something else; it couldn't be
> >Foo::Bar, but it could be Foo::Baz, or whatever.

Trademarks and copyrights, as I'm sure you know, are two entirely different
types of intellectual property.

If a license agreement either requires or permits a licensee to use the
licensor's trademark on the licensee's derivative work, the licensor may
thereby lose his own rights to the trademark altogether.  So be very careful
of your trademarks!  The derivative work MUST be distributed under its own
trademark (except in the unusual situation where there is a separate
trademark license and the licensor remains responsible for the quality of
the licensee's derivative work).

NEVER allow a third party to use YOUR trademark on HIS software.  No open
source software license should be read as permitting the use of the
licensor's trademarks on derivative works unless the license explicitly --
and foolishly -- says such use is permitted.

This may create confusion in certain open source licenses which purport to
allow anyone to make derivative works and distribute them.  The license
should clearly state that derivative works MUST NOT be distributed under the
licensor's trademarks, even if that means that the licensee is REQUIRED to
change the source code to modify documentation, HELP ABOUT screens, or the
like.

> >Why do this?  Because I wanted to make sure someone didn't take my code,
> >slightly modify it in an incompatible way, and try to confuse the public
> >about what the API Foo::Bar was supposed to do, whether intentional or
> >unintentional.

The goal of the trademark law is specifically to prevent such confusion in
the consuming public.  That is why the use of the licensor's trademarks by
third parties cannot be permitted, and why trademarks can be lost if the
trademark owner allows such confusion to persist without objection.

> >I suspect this would pass the OSD tests, but I wanted some validation of
> >that.  I see it as a cross between the trademark-related covenants of the
> >Apache license and the interface-changing clauses of the SISSL.

The "interface-changing" clauses of the SISSL create an entirely different
problem.  A published specification can be USED by anyone who reads the
specification to design and implement software.  The publisher of a
specification cannot prevent that USE by those who obtain legitimate copies
of the specification.  (The owner of the specification can prevent the
COPYING of the specification under standard copyright provisions.)  A timely
example I like to cite is the case of a book that teaches you how to
calculate your income tax; you may be prevented from copying the book, but
if you buy a legitimate copy you can't be prevented from using the
techniques it teaches to calculate your taxes, or to implement software to
do so.

To the extent that the SISSL prevents the unauthorized copying of code, this
is a legitimate form of intellectual property (e.g., copyright) protection.
However, I believe it is a misreading of the SISSL to claim that it prevents
someone from creating, independently and without copying the source code, a
new work that implements the standard in a non-derivative (and even in a
non-compliant) way.

There is a possible further complication with "standards" used for software.
If the publisher of a standard allows the use of a certification mark -- a
form of trademark -- on works that are fully compliant with the standard,
then the certification mark can be limited to such fully compliant
derivative (or entirely new) works.  I also believe it would be improper for
the certification mark owner to REFUSE to certify software that meets the
published standard, even if the software creator didn't obtain permission in
advance from the certification mark owner to implement to that standard.

Confusion about these topics in the open source (and the entire) software
community, reflected in the poor enforcement of trademarks, and in the
overreaching by certain licensors to prevent things they may not like, is
not uncommon.

Does this help answer your questions, Brian?

/Larry Rosen
650-216-1597
lrosen at rosenlaw.com
www.rosenlaw.com
www.opensource.org