Subject: Re: Followup on Exhibit B licences
From: Rick Moen <rick@linuxmafia.com>
Date: Tue, 6 Mar 2007 20:57:15 -0800

Quoting John Cowan (cowan@ccil.org):
> Rick Moen scripsit:
> 
> > TenderSystem Public Licence 1.1, like the other "Exhibit B" licences,
> > (apparently by intention) impairs commercial reuse (thus violating
> > OSD#6) by requiring a trademarked logo + company name on "every user
> > interface screen" while simultaneously specifically denying a trademark
> > licence.  
> 
> I think this is an over-interpretation on your part.  In general,
> if X compels Y to do Z, X is estopped from also enjoining Y from
> doing Z, particularly in the same breath lik this.  In effect,
> the requirement to use the trademarks is tantamount to a limited
> license to use them.

Oh, I concur, that in the event of dispute it would likely come down
that way -- depending, of course, on particulars.  Until then, at the
bare minimum there is a chilling effect that one cannot help suspecting
is intentional -- and deliberate imposition onto third-party reusers of
the burden of verifying that they have simultaneously used the marks as
required and avoided creating the impression, through their use of those
marks, that the original developer produced or endorsed their competing
product or service.

You may recall that Lawrence Rosen had some further shrewd thoughts on
this matter:  that the trademarked-logo requirement, as stated, might
well endanger the licensors' trademarks, in any subsequent infringement
actions.

> Furthermore, there is an analogue of fair use for trademarks.
> I can speak of drinking Coke, and a novelist can say that his
> protagonist drives a Ford, without stepping on trademarks.

I'm well aware of what does and doesn't constitute trademark
infringement in commercial use.  Ditto the tort of dilution.  Ditto
disparagement/tarnishment.  (I really do need to finish the article on
trademark law, too.)

> And as for intention, "the devil himself knoweth not the mind of man"
> (Blackstone).  Legal intent must be judged by objective evidence.

I spoke _not_ of intention, in that particular.  I said merely that it
impairs commercial reuse.

It is sometimes useful to speculate on what someone's intentions are,
as it may help find where the bodies are buried, but those would be
ultimately the booby prize where judging OSD-compliance is concerned.
(As I've said before, code and licensing, licensing and code.)

-- 
Cheers,
Rick Moen                                    Frater Magnus vos spectat.
rick@linuxmafia.com