[License-review] Approval submission for the Qlovatech License

[Eric Schultz]

Quentin,

Respectfully, it feels like there's a bit of "licenses as magic" going on
here. You still have to enforce the license to get any benefit and that's
really hard. Companies violate open source licenses all the time even
though open source license are, practically, the easiest licenses in the
world to comply with. If you can't afford to register the trademark, I
don't see how you can afford to enforce the license.

I don't disagree that the problem exists, I just don't see how this
solution appropriately solves it. I think the problem would be better
solved in a OSI chartered and managed community working group with experts
on trademarks, developers, activists, etc. (I think a lot of the reasons we
get new licenses here would be better solved with working groups, TBF).

Eric

On Thu, Feb 11, 2021 at 6:44 PM Quentin Quaadgras <
email at quentinquaadgras.com> wrote:

>
> Eric,
>
> > I'm not a lawyer but I'm not sure I understand the motivation here. A
> FOSS
> > project can protect their trademark right now and many do, like Mozilla
> > does for Firefox.
>
> That's correct but there are different legal protections depending on
> whether a trademark is registered or not. In the United States, I believe
> unregistered trademarks can claim limited trademark rights where as in New
> Zealand (where I'm from) unregistered trademarks have no legal standing at
> all and cannot be enforced. For an open-source project which is available
> internationally, you really need an international trademark to be able to
> protect and/or enforce your brand. These can be filed but a single
> international trademark has been estimated to me at $26,527.34 USD through
> the Madrid System. This is prohibitively expensive for a software project
> unless it has substantial growth and revenue. Even limiting the countries
> to ANZAC + EU + UK would cost $2,989 USD which is more affordable but still
> expensive for a small project.
>
> > Whether in a license or not, don't trademarks still need to be enforced
> > to be protected?
>
> Yes, this is why the Qlovatech license provides builtin pseudo-trademark
> protection, this protection only applies to derivative works. Any copyright
> holder may reserve the right from any derivative works to use their
> declared brand/trademark and maintain the rights to promote and endorse
> products and services under their declared brand/trademark. This allows the
> license in a limited form to enforce an unregistered (or registered)
> trademark.
>
> > What is the urgent problem being appropriately solved here and why is it
> > something that is within the limits of the Open Source Definition?
>
> *The Problem*
> Consider the author of a software project is implicitly branded as
> (without a registered trademark) 'AwesomeApp'. ThirdParty makes a copy of
> this software and distributes 'AwesomeApp' on a popular app store so that
> users misleadingly believe that they are using the author's version of the
> project. Perhaps 'AwesomeApp' is recognized as a brand that is updated
> regularly, does not track it's users, etc, ThirdParty copy could be
> unmaintained and contain tracking software. Alternatively, perhaps this
> modified version of 'AwesomeApp' is hosted on a cloud service by ThirdParty
> and sold as a service to users. Users may believe the service is using the
> authors version and does not track them . This type of brand confusion
> hurts both the copyright holders and the users. Filing an international
> trademark is too expensive for the author at this time.
>
> * The Solution *
> Instead, consider the author of the software project declares 'AwesomeApp'
> as a trademark and releases this project under the terms of the Qlovatech
> license. They now reserve the right to title, promote and endorse products
> and services derived from this software. They can release & redistribute
> this software as 'AwesomeApp' for a fee on any app stores and/or
> distribution platforms at the time of their choosing. Nobody else has the
> right to title, promote or endorse any forks and derivative works as
> 'AwesomeApp'. Since anyone can rebrand the software covered by the license,
> ThirdParty can rebrand their software as 'GreatApp' , respect any other
> declared trademarks and are now free to use the software for any purpose.
> Any copyright holder may when funds permit, file for an international
> trademark in order to register and therefor acquire additional protections
> to their trademark.
>
> My intention is for the license to be Open Source, I am specifically
> writing this license to conform to the definition and if it does not, I
> consider this to be a 'bug' in the license that needs addressing.
> I believe most of the contention with the license will be about legal
> clarity & "Integrity of The Author's Source Code", because as long as
> covered software is 'rebranded' or 'brandless' and the source code is made
> available, there are no restrictions on the use of that software.
>
> Quentin
>
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-- 
Eric Schultz, Developer and FOSS Advocate
wwahammy.com
eric at wwahammy.com
@wwahammy
Pronouns: He/his/him
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