[License-review] Request for Legacy Approval of PHP License 3.01

[Richard Fontana]

On Thu, Mar 5, 2020 at 1:18 PM McCoy Smith <mccoy at lexpan.law> wrote:
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> >>From: License-review <license-review-bounces at lists.opensource.org> On Behalf Of Pamela Chestek
> >>Sent: Thursday, March 5, 2020 9:41 AM
> >>To: license-review at lists.opensource.org
> >>Subject: Re: [License-review] Request for Legacy Approval of PHP License 3.01
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> >>On 3/5/2020 12:06 PM, VanL wrote:
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> >>My first instinct is to point out that registration is not required to have an enforceable mark. PHP is pretty well-known in its space, and so I wouldn't be surprised if this provision were fully enforceable under common law trademark provisions, and, if needed, the PHP project could get a registration pretty quickly as the senior user.
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> Yes, this is indeed true.  But note the restriction is not limited to their mark, common law or otherwise.  It attempts to preclude a much broader scope of designation of origin than that, and put limits on how those designations may be articulated.  And it’s a limitation on the scope of the copyright grant, meaning they could conceivably make a claim for copyright infringement for using a naming convention to which they may not be entitled to enforce under trademark law.  I’m specifically referring to the part of the license restriction that says “nor may "PHP" appear in their name, without prior written permission from group at php.net.” I’m wondering if the companies that spun off from the Hewlett-Packard Company (“HP”) might have problems with the breadth of this restriction.

Or, suppose the Ceph project creates some sort of Kubernetes-related
project called "cephpod" and suppose for some bizarre reason it uses a
copyrightable snippet of PHP-licensed code. I think this was the sort
of scenario that the FSF was concerned about, as causing the naming
restriction to be unreasonable, when judging the license to be GPL
incompatible, though I can't immediately find support for this.

Richard