namespace protection compatible with the OSD?

[Tom Hull]

Brian Behlendorf wrote:
> 
> On Thu, 19 Apr 2001, Rod Dixon, J.D., LL.M. wrote:
> > I am sorry about joining the discussion late. This sounds interesting.
> > Brian, do you mind clarifying your question without rehashing what has been
> > discussed? I do not want to bore those who have followed the thread, but
> > what do you mean by "implement" and what is the concern you are raising?
> 
> I was wondering if there was a way, compatible with the Open
> Source Definition as well as acceptable to others in the community, to
> create a copyright license for an API specification that helps ensure
> compatibility of derivative works.

After watching this argument roll around and around, it's tempting to just
say "no". A "no" answer could be derived from any of the following:

 1) If the API is not copyrightable and enforceable.
 2) If the proposed copyright-based restrictions are contrary to the OSD.
 3) If the restrictions undermine its acceptance and usability.

The lawyers can debate #1, and #3 can be left to historians, but it's hard
to see any way to reconcile #2, except perhaps on the trivial case of what
one calls the API. Trademarks are a legally sanctioned, generally accepted
mechanism for clarifying the namespace. But anything more general mechanism
that threatens to prevent unauthorized derivations would certainly restrict
freedom -- regardless of its legal status.

> If the GPL's ethos is "access to source code is paramount",

The key point is not just access to the source code: it is the right to
modify the source code, to create something new from that, and the right
to make those modifications available to others. I think the right to
modify an API is implicit in GPL.

> this one's would be "compatibility between
> implementations is paramount".  To try and recap the main argument
> against, it was suggested trademarks could be used to enforce that API,
> but I still suspect it is too blunt an instrument, since its
> enforceability relies upon unwavering strictness on the part of the
> trademark holder, and is on less tested ground legally.

I'm not aware of any API-like copyrights having been successfully defended.
As I recall, the "look and feel" lawsuits brought by Apple and Lotus were
thrown out. Adobe claimed a copyright on the list of Postscript functions,
but then immediately granted a license to re-use that list, so they've never
had to sustain their claim in court. Is there anything else?

OTOH, I believe there are lots of trademark cases, partly because trademark
law requires vigilance, and partly because the namespace is much smaller
and therefore more contentious than the infinite range of expressions that
copyright covers.

> 
>         Brian

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 *  Tom Hull * thull at kscable.com * http://www.ocston.org/~thull/
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