Subject: Re: SELLING support contracts
From: hecker@netscape.com (Frank Hecker)
Date: Tue, 15 Sep 1998 12:30:21 -0400

Phil Hughes wrote:
> One approach that has been taken is the idea of an "official" version.
> I don't really like this as it restricts the freedom but I haven't seen
> a better alternative.  I guess this is what the MPL vs. NPL addresses.

For reference, the trademark issue is addressed by Amendment III of the
NPL: "This License does not grant any rights to use the trademark
``Netscape'', the ``Netscape N and horizon'' logo or the Netscape
lighthouse logo, even if such marks are included in the Original Code."
This and other NPL amendments are not present in the MPL.

To echo earlier comments, I don't see product branding through
trademarks as necessarily contrary to the spirit of libre software, and
I believe that the inclusion of trademark-related clauses could arguably
be justified even in licenses like the GPL.  After all, if others are
required to call their products by a different name and use different
logos for icons, splash screens, etc., that doesn't really change the
functional value of the program to the end user; thus at least to me
such a restriction wouldn't compromise the fundamental goal of
maximizing the functional value of software to society as a whole, which
I see as a major principle behind the GPL and the Open Source
Definition.

Also, trademarks and related aspects of brand identity are in a key
sense proxies for developer and vendor reputation, and I suspect most if
not all people involved in libre software would agree that reputation is
a useful and legitimate way to differentiate between two entities
offering similar goods and services.  Thus you can argue that measures
to prevent entities (individuals or organizations) from "piggybacking"
on another entity's reputation can be justified even when they restrict
the freedom of others to some extent.

I should also add here that not only the NPL but also the MPL make
possible "official" versions in another way.  Since both the NPL and MPL
don't taint across source file boundaries, both licenses permit the
creation of commercial products consisting of libre code combined with
proprietary code.  Netscape Communicator is and will continue to be such
a product, since it includes certain functions implemented by
proprietary code either from Netscape or licensed from third parties. 
(A good example is the code in 4.5 that allows users to easily send
Netscape bug reports after software crashes.)

Others wishing to create 100%-equivalent products to Netscape
Communicator (as opposed to generic Mozilla) are hindered in doing so
not only by Amendment III of the NPL (which prevents them from calling
their product "Netscape Communicator" without explicit permission from
Netscape) but also by the need to recreate and/or relicense the
proprietary code included in Netscape Communicator.

Finally, note that historically the trademark issue was not the only or
even the major reason for doing both an NPL and MPL.  The major
distinction between the two is the clauses in the NPL (Amendments IV and
V) intended to cover the cases of Netscape using code licensed from
third parties in NPLed code, using NPLed code in Netscape's own
proprietary products without fully disclosing modifications, and
licensing NPLed code to third parties under non-NPL licenses.  (There's
also some legalese in Amendment VI about arbitration and litigation.) 
Some of these other clauses, particularly V.2 and V.3, resulted from
historical circumstances that wouldn't apply to an FSB starting
development from scratch.

Not that I'm biased or anything :-), but I think both the NPL and MPL
merit close study by anyone interested in the commercial aspects of
libre software (even if you can't or don't want to use the MPL or an
NPL/MPL-derivative) since the NPL and MPL were created by a for-profit
software company trying to address issues that naturally arise in a
commercial context but that historically have been less relevant to a
university or academic institution (origin of the BSD license) or to
free software developers in the GNU and other traditions (origins of the
GPL, Artistic License, etc.).

Frank
-- 
Frank Hecker          Pre-sales support, Netscape government sales
hecker@netscape.com   http://people.netscape.com/hecker/