namespace protection compatible with the OSD?

[Brian Behlendorf]

On Thu, 19 Apr 2001, Lawrence E. Rosen wrote:
> And this IP lawyer will argue up and down that copyright law protects
> expression and not the underlying ideas.  Implementing a specification
> without copying code is creating neither a copy nor a derivative work of
> that specification.

Would you agree that if I took one of Shakespeare's plays and reworked it
into a screenplay, or novel, that my work would be a derivative work?
Throw in translating to Chinese for good measure.  Throw in adding some
extra scenes and characters to really flesh out my work, or to adapt it to
a new culture.  I think the idea of implementing an API is the same thing.
And I think this is a much closer analogy than using the tax advice given
by a tax book.

Certainly, if I wrote a novel that happened to coincidentally share plot
lines with a Shakespeare play, that's not something to worry about - only
patents and trademarks are so broad as to cover unintended parallels.

I think the issue is sufficiently grey that it's worth considering it a
threat to open source development, and I'd like to find an ironclad
argument against it, or fix the OSD/DFSG.

> I appreciate your informing me that this issue has fomented lots of
> discussion in the past in the open source community.  "Stallman's rebuff to
> Alladin [sic] Software" notwithstanding, the final decision may have to come
> from a court of law.  I, for one, would almost welcome such litigation,
> because I believe the open source community needs to take a stand against
> companies that pay lip service to open source principles while preventing
> open source development with closed specifications and standards.  This is
> hypocrisy.  As the open source community has long since proven repeatedly,
> particularly with its contributions to Internet-related software, the
> enforcement of appropriate standards can be encouraged and achieved without
> recourse to licenses that prevent effective open source development.

So far we have a couple data points - Apache, sendmail, bind - to suggest
that open source drives compatibility.  We have data points to the
contrary as well - glibc, html authoring tools, linux package formats.
We have lots of data points to suggest that the world outside of the
circle we know doesn't give a hoot about compatibility, they just "want to
get the job done" even if the long-term impacts are significant, because
those long-term impacts don't affect the developers in that situation.
I'm suggesting that taking an ostrich approach to those issues isn't good
for the open source community - either we find a way to accomodate these
issues within the open source milieu, or we figure out a way to mitigate
the need for them.

> You said that 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."  That misstates the legal significance of the trademark.
> I was trying to point out that you CAN'T ALLOW someone to use your
> name -- e.g., ALL uses, even friendly ones, are misuses -- because it
> is YOUR trademark and not theirs.  If you allow a third party who
> creates a derivative work to market that derivative work under your
> trademark, without exercising control over the quality of his
> derivative works, you will lose your trademark.

OK, so that suggests that the ASF had better *not* go out and get a
trademark on "Apache", because we'll quickly lose it should we not become
Nazis about enforcing it.  This also suggests that anyone who has a
trademark on a name used by an open source package, under a license that
doesn't control how that name is used in a derivative work (a license like
the GPL, for example), has lost the ability to enforce that trademark.
That's absurd.  This is precisely why trademark is a poor instrument for
this purpose.  It also means there's no way we could advocate, say,
org.apache.soap to become an industry-wide API, outside of the ASF's
control.

> It is okay for a third party to say his derivative work is "compatible
> with" Apache, or "equivalent in functionality to" Apache, or "meets
> the specifications of" Apache, or even that it is "better than"
> Apache, but it is NOT okay for him to market his derivative work "as"
> Apache.  Apache should not allow anyone else to adopt its trademark
> for their software!  (The word "should" in that last sentence is as
> close as I'm going to come to giving unsolicited legal advice to
> Apache.)

OK, so when Debian creates an Apache deb package, and calls that package
apache-1.3.19.deb, and tells people "you can install apache by doing
apt-get install apache", are you saying the ASF should not allow
them to do that, without granting them specific approval to do so?  Note
that such an arrangement is not cool with Debian, as it would violate the
DFSG (and the OSD) by creating a second agreement limiting the right to
redistribute, as well as being specific to Debian.

I am not a lawyer, but I'm getting uncomfortably familiar with too many
things usually only lawyers have to worry about.

	Brian