namespace protection compatible with the OSD?

[Brian Behlendorf]

On Tue, 17 Apr 2001 home at rosenlaw.com wrote:
> Trademarks and copyrights, as I'm sure you know, are two entirely different
> types of intellectual property.

Well, sure, but using copyright law to protect naming has served Apache
well, at least.  There is still a substantial reason to not want to try
and fight name-related battles on trademark terms, because they are much
more slippery and consume more legal bills.  It's much more efficient to
say "you can't use my code if you misuse my name" than "you can't use my
name because I own the trademark".

However, my query isn't really about trademarks, it's about APIs.  Sure,
the trademark "Apache" could be embodied in the package name (e.g.
Apache::foo) but let's say I actually do want to incent derivative
implementations in the name of promoting an industry-wide standards; that
would be yet another reason *not* to punt this issue to trademark law, for
the reasons you cited.

> 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.)

There are IP lawyers I know who will argue up and down that software
implemented to a specification is a derivative work of that spec, so that
spec's copyright terms need to be obeyed (which is why I said both the
spec and the code were under my "call it something else if you're not
compatible" license) when creating derivative works.  I don't know that I
like that aspect, but I sure would not want to try and argue against them
in a court of law, because I can't find fault with that logic.

> 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.

It has been argued, though, that an API is copyrightable; look at
Stallman's rebuff to Alladin Software over implementing a shim for some
GNU library; by implementing the same API, Stallman argued it was a
derivative work, and Alladin's use constituted a GPL violation.  Not that
Stallman's opinion is all that matters, but it's telling that both he and
the hardcore IP lawyers I refer to above agree on this.

> 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.

That actually sounds like the one positive argument in favor of using
trademark law for this - it helps prevent the spec publisher from
exercising unfair treatment on those who wish to implement an open spec.

> 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?

It's been good feedback, yes.  Thanks!

	Brian