GPLv3 Appropriate Legal Notices and Restrictive Trademark Grants

[Ben Tilly]

On Fri, Jul 11, 2008 at 5:19 AM, Daniel Chalef <daniel.chalef at gmail.com> wrote:
> Hello all,
>
> If this isn't the right place for discussion of this topic please do point
> me in the right direction. [I recall a debate around this list being for
> discussion of licenses approval issues.]
>
> I've come across the following application of Section 7(b) of the GPLv3 in
> conjunction with a restrictive trademark grant.
>
> It is my understanding that restricting the use of the trademarks (for
> commercial use, "destroying brand value" etc), in turn creates additional
> restrictions on the use of the software and source code, which would be in
> violation of the GPLv3.
>
> Am I correct or somewhat misguided? :-)
[snip]

I am not a lawyer, but I think they may have found a loophole in the
GPL v3.  Namely that in accord with 7b they may require, "Requiring
preservation of specified reasonable legal notices or author
attributions in that material or in the Appropriate Legal Notices
displayed by works containing it."  But then in accord with 7e they
may place restrictions, "Declining to grant rights under trademark law
for use of some trade names, trademarks, or service marks."  So they
require an author attribution that is a trademark that they then
decline to let others use.  The question is who defines what author
attributions are "reasonable".

HOWEVER if they do this then they may NOT use any existing GPLed
software in their software without explicit permission from the
authors of that work.  That is because their modified license is not
the usual GPL, and term 7 explicitly says that these conditions may
only be added with the authorization of copyright holders.  Meaning
that having GPLed your code is not the same as having given
authorization to impose these restrictions.  (At least that is my
interpretation, but that could be argued about.  For example I think
that 7e is there for the benefit of Red Hat, and I doubt they like an
opinion that they need explicit permission before adding their
copyright all over their OS...)  The only thing that I see to do about
this is that they can be held to that principle very, very strictly.

So I think that they have really succeeded in finding that the GPL v3
allows you to produce a modified license that is not open source but
is still called the GPL v3.  The OSI could issue an official opinion
to this effect, but I'm not sure it is worth anyone's while.

Cheers,
Ben