Subject: RE: namespace protection compatible with the OSD?
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Thu, 19 Apr 2001 11:11:55 -0700

On Tue, 17 Apr 2001, Brian Behlendorf wrote:
>
>> There are IP lawyers I know who will argue up and down that software
>> implemented to a specification is a derivative work of that spec, so that
>> spec's copyright terms need to be obeyed (which is why I said both the
>> spec and the code were under my "call it something else if you're not
>> compatible" license) when creating derivative works.

And this IP lawyer will argue up and down that copyright law protects
expression and not the underlying ideas.  Implementing a specification
without copying code is creating neither a copy nor a derivative work of
that specification.

I can understand the desire of some companies to prevent forking by claiming
ownership of their published specifications.  But having a desire doesn't
mean you have a right to satisfy your desire by imposing your will on
unwilling participants.  Claiming a monopoly right under copyright where
that claim is not allowed is copyright misuse, subjecting the claimant to a
lawsuit for, at the least, injunctive relief.

I appreciate your informing me that this issue has fomented lots of
discussion in the past in the open source community.  "Stallman's rebuff to
Alladin [sic] Software" notwithstanding, the final decision may have to come
from a court of law.  I, for one, would almost welcome such litigation,
because I believe the open source community needs to take a stand against
companies that pay lip service to open source principles while preventing
open source development with closed specifications and standards.  This is
hypocrisy.  As the open source community has long since proven repeatedly,
particularly with its contributions to Internet-related software, the
enforcement of appropriate standards can be encouraged and achieved without
recourse to licenses that prevent effective open source development.

As for a "call it something else" provision of a license, that relates to
trademark law and, as I said in a previous email to license-discuss, is
outside the scope of any specification.  You said that it's much more
efficient to
say "you can't use my code if you misuse my name" than "you can't use my
name because I own the trademark."  That misstates the legal significance of
the trademark.  I was trying to point out that you CAN'T ALLOW someone to
use your name -- e.g., ALL uses, even friendly ones, are misuses -- because
it is YOUR trademark and not theirs.  If you allow a third party who creates
a derivative work to market that derivative work under your trademark,
without exercising control over the quality of his derivative works, you
will lose your trademark.  It is okay for a third party to say his
derivative work is "compatible with" Apache, or "equivalent in functionality
to" Apache, or "meets the specifications of" Apache, or even that it is
"better than" Apache, but it is NOT okay for him to market his derivative
work "as" Apache.  Apache should not allow anyone else to adopt its
trademark for their software!  (The word "should" in that last sentence is
as close as I'm going to come to giving unsolicited legal advice to Apache.)

/Larry Rosen
650-216-1597
lrosen@rosenlaw.com
www.rosenlaw.com
www.opensource.org