[License-discuss] Thoughts on AAL and OSS vs FOSS

[Pamela Chestek]

On 3/31/20 9:13 AM, Richard Fontana wrote:
> On Tue, Mar 31, 2020 at 9:08 AM Syed Arsalan Hussain Shah
> <arsalan at buddyexpress.net> wrote:
>> The alternative license besides AAL could be the CAL1.0 that has been approved recently.
>>
>>> You must retain all licensing, authorship, or attribution notices contained in the Source Code (the “Notices”), and provide all such Notices to each Recipient, together with a statement acknowledging the use of the Work. Notices may be provided directly to a Recipient or via an easy-to-find hyperlink to an Internet location also providing Access to Source Code.
>> https://github.com/holochain/cryptographic-autonomy-license#43-provide-notices-and-attribution
>>
>>  From this I assume  if someone adds an attribution notice in the source code like 'developed by abc' the user using the software need to display such a notice as it is part of source code.
> I am pretty sure this is not correct. Your interpretation seems to be
> directly contradicted by the license language you quoted, in
> particular the second sentence.
>
I am a trademark lawyer and need to point out that "attribution" and 
"trademark" are not the same thing. An "attribution" is identification 
of an author of a work. That may or may not be the owner of the 
copyright. A trademark is a source identifier, who it is that stands 
behind the quality of the goods. It is a legal error to equate 
attribution with trademark, they are different things with different 
roles. A trademark is also not a "legal notice"; examples of legal 
notices are the copyright notice ("© Year Copyright Owner") and the 
trademark notice ("Reg. U.S. Pat. & Tm. Off.").

The GPL and CAL refer to very specific items that must be reproduced. 
For CAL it is "licensing, authorship, or attribution," not trademark. 
For GPL it is a copyright notice, a statement that there is no warranty 
for the work, that licensees may convey the work under the license, and 
how to view a copy of the license. The GPL also allows a licensor to 
"Requir[e] preservation of specified reasonable legal notices or author 
attributions in that material," but neither of these provisions allow 
for requiring use of a trademark.

It is also just a really bad idea to require the use of a trademark on 
software that can be modified. The trademark tells the world that you 
stand behind the product. If someone modifies the software so that it 
broken or malicious, you will have no way to stop the modifier from 
continuing to represent that you are the source of the problematic code. 
The sensible licenses, e.g., MS-PL, OSL, say exactly the opposite, you 
may NOT use the licensor's trademark without permission.

Pam


Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com
919-800-8033
www.chesteklegal.com