Official Firefox binaries non-free

[Alex Hudson]

(it might be better if the discussion on law continued offlist)

On Wed, 2005-04-06 at 10:57 +0100, MJ Ray wrote:
> > Trademarks identify the *source* of the goods; they're applied
> > to things to mark their origin.
> 
> Indeed. Filenames do not "identify the source of the goods" -
> they are just a convenient mutable label for program or storage
> files.

Doesn't matter; a mark is something which identifies a source. The
reverse logic above - that only source identifiers (e.g., labels) can
hold marks - isn't right. A mark can appear anywhere.

> Whatever else, the more extreme claims in discussions
> about needing to change filenames which let you execute "firefox"
> or "apt-get install mozilla-firefox" are not directly trademarky.

They quite plainly are. Do you think that if Microsoft included an icon
on their desktop labelled "AOL" that actually called up an MSN
connection, that it wouldn't be a breach of AOL's trade mark rights? 

> Really, I was hoping that you would agree that there is an
> upper limit to the trademark problems. You seem to be asserting
> that any use of the word firefox in any context requires the
> trademark holder's permission. Do I understand that correctly?

No, you don't. What I'm trying to put across is that the scope of trade
marks is different to the scope you're suggesting: you're making claims
like "functional names cannot infringe trademarks"; this plainly isn't
true. The law doesn't make those exceptions. 

> ftp-master.debian.org is in the US and so are a lot of other
> debian donations. Even ignoring money, it's a bigger pain if
> distribution is stopped there, although I'm sure there'd be a
> workaround for any technical problems. I don't see how you can
> claim it's not relevant. Very strange.

Your claim seemed to be that US law was the only concern because Debian
is mostly US-based. 

If we only consider US law, then MoFo does have certain options - like
not enforcing its trademark, or sublicensing, or whatever. What we
actually have is a much more complex situation, and the options open to
MoFo over their marks is much narrower.

If Debian is only willing to talk in terms of US law (which I'm not sure
they are doing), they should surely understand that MoFo is talking in a
wider context and potentially isn't able to offer solutions that Debian
thinks are available. 

Does that affect the freeness of the software? I'm not sure. I do think
marks are generally incompatible with free software, and I think the
case law supports that point of view pretty well. *But* - if I can get
software A from an original supplier with marks, and elsewhere without
marks, I would probably still consider the software with marks to be
free software - there is no functional difference, which is basically
what concerns me. I would view it much like installing Debian from a
binary-only CD set, if you see what I mean.

However, it's pretty clear that use of marks can prevent modification
insofar as it requires extra work in order to redistribute
modifications. I think, though (given the work Moz have already put into
markless building wrt. the logos, etc.) that this is a mistake that
requires fixing. Moz already have these in other areas (e.g.,
trilicensing), as do others (RedHat had a similar issue). It's clearly a
problem, but not (for me) a problem on the same scale as (say) Talkback.

Cheers,

Alex.