Re: Juridical problems

[Andreas Pour <pour@mieterra.com>]

> The installation program is RedHat's but the putting together of the
> ditrib is ours.  RedHat has insisted with Gael Duval (author of
> Mandrake) for the removal of the RedHat name from everywxhere where it
> appears.  In fact we will be forced to add some "legality" RPMs: for
> instance to have it display Independence at login prompt.

Well, he can't possible remove it from everywhere (e.g., a source rpm might have
"porky@redhat.com" as the build host).  The point is not to be facetitious but to get to the
point about thinking reasonably what needs to be removed and what doesn't.  To the extent
RedHat has GPL's stuff, including their logo, they are stuck w/ having it be on derivative
distributions.  The relevant provisions of the GLP 2 provide that the license "applies to any
program OR OTHER WORK" (emphasis added). The GPL then goes on to say (and I quote b/c it's
important):

    You may copy and distribute verbatim copies of the Program's
    source code as you receive it, in any medium, provided that you
    conspicuously and appropriately publish on each copy an appropriate
    copyright notice and disclaimer of warranty; keep intact all the
    notices that refer to this License and to the absence of any warranty;
    and give any other recipients of the Program a copy of this License
    along with the Program.

Thus, if RedHat has GPL's some software, like glint, they can't make you take their name off of
it..  Thus, no offense, but I do not believe, as you said above, that RedHat insiated that Mr.
Duval remove the RedHat name from "everywhere where it appears".

Now, under the GPL, slightly different rules apply if you modify the work:

     You may modify your copy or copies of the Program or any portion
    of it, thus forming a work based on the Program, and copy and
    distribute such modifications or work under the terms of Section 1
    above, provided that you also meet all of these conditions:

        a) You must cause the modified files to carry prominent notices
    stating that you changed the files and the date of any change.

        b) You must cause any work that you distribute or publish, that in
    whole or in part contains or is derived from the Program or any
    part thereof, to be licensed as a whole at no charge to all third
    parties under the terms of this License.

        c) If the modified program normally reads commands interactively
    when run, you must cause it, when started running for such
    interactive use in the most ordinary way, to print or display an
    announcement including an appropriate copyright notice and a
    notice that there is no warranty (or else, saying that you provide
    a warranty) and that users may redistribute the program under
    these conditions, and telling the user how to view a copy of this
    License.  (Exception: if the Program itself is interactive but
    does not normally print such an announcement, your work based on
    the Program is not required to print an announcement.)

So the real question is this:  what have you changed in a GPL'd work that would require you to
notify people of the changes?  All this in context of what RedHat has a legitimate copyright on
(as opposed to just a license), which are only a few programs in their distributions, like
glint, rhprintfilters, etc., and some documentation, like their installation guide (which is
GPL'd).

It seems to me the real issue here is that you not violate RedHat's trademark in its name.
Thus, IMHO you should definitely change the logon screen from RedHat to your own so you don't
mislead people into thinking it is a RedHat distro (i.e., causing a confusion as to the
_source_ of the package).  But trying to remove the work "redhat" from the CD is going way
overboard (and, in fact, would violate RedHat's rights in cases where it is the valid copyright
holder!).

> I have taken a look to Pacific High Tech this week and the
> installation is a slightly modified RedHat (boots in 50 line mode).
> And guess what you see in the boot prompt? "Copyright Pacific High
> Tech".  The reason is because it refers to the whole distrib not to
> the install program.

To me it is inherently vague what Pacific High Tech is claiming a copyright in.  Is it a
graphic they display at bootup?  Certainly a work of art may be copyrighted.  But are they
trying to claim a copyright in the programs included in the distribution, including such things
as "ls", "man", the kernel, etc.?  I hope not, that would be folly.

> There is a "Project Independence" US political organization.

Well, I would think if that's the only other person using it your on pretty safe ground.   But
besides for Common Cause's "Project Independence", a quick Internet search found the "Federal
Energy Administration's Project Independence Report" (publ. ca. 1985), there is a Project
Independence Services at 250 Elm St. in Fair Haven, HUD (the US federal housing agency) has a
"Project Independence", etc., etc.

> > Most countries use a likelihood of confusion test for trademark protection.  I would
> > suspect something as descriptive as "Project Independence" would not be entitled to strong
> > protection, but research needs to be done.  As a general rule, the more different people
> > use the same name, the easier it is to copy.  But the essential question is this:  would a
> > consumer be confused that someone else produced your product?  You can always reduce this
> > risk by including "subtitles" to make clear to a reasonable consumer that you are not
> > affiliated w/ any other company named "Project Independence".  Of course, to have a
> > trademark you will need a legal entity . . . .
> >
>
> THis is not a commercial project.

It doesn't matter whether the project is commercial (even though you will be selling CDs for
money, no?).  Consider, for example, the "Red Cross", or the "United Nations", or "Harvard
University", or "GNU".  None of these are "commercial" projects, yet all have very strong
trademarks.

> > > >b) We have no juridical entity.  A solution would be to copyright
> > > >using the names of the participants but putting my name in front of
> > > >the first thing the user will see -the installation panel- seems a bit
> >
> > Maybe I'm missing something, but what is there to copyright?  From what I gather from
> > being on the mailing list, you are simply repackaging other people's work.  That does not
>
> That is what basically distributors do: repackage others people work.
> I was on the verge to flame to death a guy who talked about the
> stability of his distribution (name withheld) because stability is due
> to the kernel people work.

And many other authors (any program running as root (whether setuid or b/c root actually wants
to do something), including virtually all GNU utilities, can absolutely destroy stability, in
fact, can erase your entire hard drive!!!).

> > entitle you to a copyright, not even a derivative copyright.  RedHat copyrights things
> > like glint, which it wrote.
> >
>
> I never told I would copyright individual software.

I understand  :-).   My point was only to get you to think about what you ARE copyrighting.  I
don't think you can copyright a "distribution", in the sense of a collection of programs.  You
could copyright your logo, perhaps, or a list of applications and files that are included in
your distribution, but the concept of a "distribution" is not expressed in a tangible medium of
expression, and hence I do not see how you can copyright it.  I'm not saying that is what your
intent was -- all I am suggesting is that you should think carefully about exactly what it is
you are claiming a copyright in.

> > > agreed, that doesn't sound like a very community-friendly approach.
> > >
> > > >violent.  Perhaps better would be to have a "Contributors" and put
> > > >Copyrights only in the sources like it is done in Linux kernel.
> > > >
> > > >Any ideas?
> > >
> > > On another note, are you allowed to simply replace somebody else's
> > > copyright with your own when you start distributing their material
> > > (even modified)? That seems fishy. :)
> >
> > Absolutely not.  The GPL (and probably any other license applicable to software in the
> > distribution) gives you a LICENSE to use, copy and redistribute, it does not give you the
> > right to claim authorship (a copyright is a claim to authorship).  Please do _not_ try to
>
> The GPL also tells about if you modify a program and distribute it you
> must make clear you did it so bugs you introduced are not attributed
> to original authors.

True.

> > claim a copyright in something that is not your original work, it is not only probably
> > unlawful in every jurisdiction in the world (even China and Russia!), it is IMHO totally
>
> Don't presume about laws in China and Russia.

I'm not presuming.  I know.  I also know the copyright laws in those two countries in
particular are not vigorously enforced.  I think it is you who is presuming about what I know
:-)

> > unfair to the actual authors (I'm not trying to be rude here, I just need to make this
> > point clearly and unequivocally).  If you made substantial changes to a GPL program, then
> > there might be the question of whether or not you are entitled to a copyright on a
> > "derivative work", but I would be amazed if just redistributing what RedHat, KDE et al.
> > distribute qualifies in any jurisdiction.
> >
>
> The fact is original KDE had a difficult install, ours is plug and
> play.  While not claiming ownership about individual software
> people of distributions claim copyright about thsir work.

I am not trying to imply you are not doing something useful -- in fact, I subscribe to this
list precisely b/c I think you are all doing a great thing.  But producing something useful
does not entitle you to a copyright in it.  And, again, people claiming copyright doesn't mean
they have it.  What you need to consider is what you have a copyright in -- is it your logo,
the graphics displayed when you log in, the documentation you distribute, the scripts you write
to simplify installation, etc.  It's not as easy as saying, I put these programs together,
I have a copyright in that combination.  If that were so, I would take my 30 favorite novels
together, distribute them and claim a copyright in the distribution (whatever that means).

> Ah!  This distribution is GPL and that means any person participating
> in it can deny to the main author (me) the right to change license
> while keeping the work he did.  RMS had a great idea when he took
> provisions for forbiding the "smart guy" syndrom: original author who
> wants to "privatize" his free software after unpaid contributors allowed
> the program reaching commercial grade.
>
> > If you want some sort of intellectual property protection for the PI distribution, your
> > best bet is to use a trademark or service mark, whose purpose is to signal to people the
> > _source_ of a product or service, which is what I gather you are really trying to do.  To
> > do this you will likely want to form a legal entity (this opens a bird's nest of issues,
> > such as control, ownership, liabilities) or to pick a representative to hold the
> > trademark.
> In times of Shakespeare, Cervantes or Moliere there were no
> intellectual property laws so authors concentrated in writing great
> litterature instead of looking for a subject who wasn't vaguely close
> to a book of someone else.  Perhaps a coincidence but since
> intellectual property has been enforced there are only dwarfs in
> litterature.

Well, I can think of quite a few writers/authors who I do not consider dwarves (Dostoevsky,
Sartre, Nietzsche, Marx, Hegel, Marcuse, Kant,  Gabriel Garcia Marquez, Saul Bellow, Picasso,
Dali, Hitchcock, etc., etc., etc.) who have been protected from thievery by intellectual
property laws   :-) .

> I don't get give a dime about intellectual property but
>
> a) RedHat don't want people think this is a RedHat distrib

This is the most direct and important concern, I agree.  I would take pains to make clear that
it isn't.

> b) I don't want any smart guy including my work in a non-GPLed
> distribution.

I'm not sure how that can happen.  The components of your distribution would not fall outside
of the GPL b/c you did not claim a copyright in it.  Again, if you have actually created a new
work of authorship (such as documentation, or a script, logo, graphical image or something)
that is tangibly expressed, by all means copyright it and release it under the GPL so nobody
can do that.

> c) because I am not in this to make money there is also a limit
> in what I can spend so no trademarks (remember I don't trade)
> unless we get a sponsor

I'm not at all sure about EU rules, but in the US you can get what's called a "common law"
trademark w/out paying any money on the trademark itself (except when you try to enforce it, of
course), all you need is to get enough people to associate your name with a particular
distributio

BTW, I do not give legal advice and I speak only for myself.

Andreas F. Pour
pour@mieterra.com