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The Courts Open Source

FOSS Community Criticizes SFLC over SFC Trademark War (lunduke.com) 64

Earlier this month Bruce Perens notified us that "the Software Freedom Law Center, a Linux-Foundation supported organization, has asked USPTO to cancel the trademark of the name of the Software Freedom Conservancy, an organization that assists and represents Free Software/Open Source developers." Now Slashdot reader curcuru -- director of the Apache Software Foundation -- writes: No matter how you look at it, this kind of lawsuit is a loss for software freedom and open source in general, since this kind of USPTO trademark petition (like a lawsuit) will tie up both organizations, leaving less time and funds to help FOSS projects. There's clearly more to the issue than the trademark issue; the many community members' blog posts make that clear.

GNOME executive director Neil McGovern
Apache Software Foundation director Shane Curcuru
Google security developer Matthew Garrett
Linux industry journalist Bryan Lunduke


The key point in this USPTO lawsuit is that the legal aspects aren't actually important. What's most important is the community reaction: since SFLC and Conservancy are both non-profits who help serve free software communities, it's the community perception of what organizations to look to for help that matters. SFLC's attempt to take away the Conservancy's very name doesn't look good for them.

Bryan Lunduke's video covers the whole case, including his investigation into the two organizations and their funding.

This discussion has been archived. No new comments can be posted.

FOSS Community Criticizes SFLC over SFC Trademark War

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  • by Anonymous Coward

    Really, the whole community? That's not what I'm seeing.

  • by boudie2 ( 1134233 ) on Saturday November 18, 2017 @01:27PM (#55577387)
    In 1970, Dirk sued Stig, Nasty and Barry. Barry sued Dirk, Nasty and Stig. Nasty sued Barry, Dirk and Stig, and Stig sued himself, accidentally. It was the beginning of a golden era for lawyers.
  • It's interesting to note that the Software Freedom Law Center helped create the Software Freedom Conservancy. SFLC staff probably came up with the name "Software Freedom Conservancy", so they'd have a tough case to make in court now.

    In trademark law, one must either defend your name, or lose rights to it to the extent that you didn't defend it. "Defend" could include granting explicit permission for someone else to use it. You can't just ignore someone using a variant of your name for years, then sue them later, after they've already established a reputation under that name.

    It seems SFLC has a VERY weak case unless they have a written agreement with SFC tying the use of the name to specific contract terms, such as what activities SFC was created to do. I don't think they have such a contract. Even if they do, their more likely remedy would be suing for breach of contract.

    • In trademark law, one must either defend your name, or lose rights to it to the extent that you didn't defend it.

      This is oft-quoted but incorrect. You do not lose your trademark by failure to defend it. You lose it if your trademark becomes generic. So, arguably Xerox could have difficulty enforcing their trademark if the defendants can prove that it has become synonymous with photocopying.

      You do not have to go after all possible infringers in court. That would make trademarks horribly expensive and impract

      • Genericide is one of four different ways to lose your trademark rights. The others are laches, abandonment, and excessive licensing. Three of them can result in complete loss of all rights, laches results in loss of rights to the degree that complainant failed to defend them in a timely fashion.

        Laches is probably the best fit here. As I said originally, with laches you lose For recent high-profile cases see Fitbug v. Fitbit, No. 13-1418, 2015 U.S. Dist. LEXIS 8775 (N.D. Cal. Jan. 26, 2015) and Eat Right

        • by raymorris ( 2726007 ) on Saturday November 18, 2017 @06:45PM (#55578443) Journal

          A few words went missing in my post. That should say:

          "As I originally stated, with laches you lose the right to enforce to the degree that you failed to police it."

              For example, if a university allows local businesses to print and sell T-shirts using the university logo, and doesn't take any action to stop them over a number of years, they'd lose the right to enforce it on T-shirts printed by the local businesses. They wouldn't lose all trademark rights.

          Here SFLC not only ALLOWED the SFC to use the name, officers of SFLC helped *choose* the name for SFC to use and did the trademark registration. This is like if you helped write the Debian Social Contract, borrowing wording from the Open Source Definition, then you turned around and sued Debian for copyright infringement on the Definition - suing them for doing something you helped them do.

          • Laches has two elements, delay and prejudice. The concept here is that if the plaintiff waits for the defendant to build public awareness of their use of the trademark and thus a valuable business in infringing the trademark and then the plaintiff sues, the plaintiff loses. The defendany has to demonstrate both delay and prejudice in order to win using a laches defense.

            Not all infringements ever meet that standard and thus must be enforced early. I would indeed imagine that most infringements do not.

            • > Not all infringements ever meet that standard and thus must be enforced early.

              The first half is delay, so that applies to all cases under discussion. The second part is, to use your words " a valuable business" - so only in cases that matter.

              In this particular instance, there are at least three clear grounds on which FSC should win, all related to the same concept - Eben Moglen, Executive Director of SFLC, is the one complaining, but he himself was on the board of SFC when it launched, when it was cre

              • So, I am still at a loss why Eben Moglen, law teacher at Columbia, would bring this proceeding. The legal part seems so shaky, and if they prevail they make pariahs of themselves. Or have already made.

                Here are all of SFC's stated defenses:

                1. Petitioner's claim fails to state a claim upon which relief can be granted. (this is standard for any such case)
                1. Petitioner's claim is barred by the doctrine of unclean hands.
                2. Petitioner's claim is barred by the doctrine of laches.
                3. Petitioner's claim is barred

                • > So, I am still at a loss why Eben Moglen, law teacher at Columbia, would bring this proceeding.

                  Yeah it seems silly. I don't know why he's doing this, but I do know that there has been bad blood between he and SFC for a couple years now. I also know that people, including really smart people, do really stupid things behind emotion. He may be thinking "I created the Conservancy, heck I came up with the name, and now you guys are doing things I hate. I made the organization, you should do things my way,

    • I can't disagree with your analysis, but what do I know? That being said, I had sort of automatically given the moral high ground to SFC until I saw this little tidbit from the SFLC blog:

      We have tried repeatedly for almost three years to get a meeting with Karen and Bradley in order to discuss this and other claims we have concerning their and the Conservancy’s activities. In all that time, they have never once agreed to meet with us to hear and discuss our concerns. They have presented transparently dilatory responses, such as being “too busy,” or even “always too busy” when we asked them to set their own time. Sometimes we have not been offered so much as the courtesy of a refusal.

      The SFC had posted this:

      We were surprised by this spurious action. In our eleven years of coexistence, SFLC has raised no concerns nor complaints about our name, nor ever asked us to change it. We filed our formal answer to SFLC’s action yesterday.

      It's a bit hard to bring up these issues if you are refused meetings. What they say may be "technically" true, but if they'd been refusing to have meetings, they had to have a pretty good idea of what those meetings would be about. What a mess. It makes them both look pretty bad at this point, to

      • by jjohn_h ( 674302 )

        The SFConservancy's reply is B. Kuhn's reply and is a classical example of non-denial denial. The SFLawCenter was trying for years to talk to them over a wide range of issues and not simply about a name.

        They coulnd't talk because Kuhn was soo busy. Well, I guess he will have to find the time to appear in court and answers a few questions. It smells of bastards as far as I'm concerned.

      • There is a good answer to this here, which I'm surprised isn't linked to from the main article:

        http://www.rants.org/2017/11/c... [rants.org]

        Notably:

        "These paragraphs are disingenuous in several ways.

        First, Conservancy has consistently been willing to meet, but merely insisted as a ground rule that the conduct of the meeting must be professional and civil. This was both responsible and a smart move on their part. The meeting isnâ(TM)t going to be productive if it involves shouting and insults, and they had reason t

        • That sounds like a lot of slanderous statements to me! Accusing people of yelling at you and acting unprofessionally... at a meeting that hasn't been held?! That is offensive both to my sense of civics, and to my understanding of what words mean.

          If you attend a meeting and somebody is yelling at you, just leave. Then you can say, "We did meet, but we had to end the meeting early for [reasons]." And it would be honest. But when the meeting didn't happen, you certainly don't get to make accusations like that.

        • I don't know either of these parties, so all I have to go on is what I'm reading now (thx for the link - I read the entire post). You can take this as the observations of a neutral outsider.

          I think I might consider the refusal to meet a tactical error on the part of the SFC, because it makes them appear unreasonable. Setting preconditions on a meeting and requiring participants to sign documents promising to "be nice" seems fairly insulting to me, even if someone considers it warranted. I would never sig

      • What a mess. It makes them both look pretty bad at this point, to be honest.

        I don't really comprehend that. To me it seems obvious that it makes the people refusing to meet look bad, and it makes the other people look like they tried to avoid this unfortunate result.

        Maybe I'm the only person on slashdot who believes in seeking Justice where there are systems in place to achieve it. But I doubt it.

        If they're always too busy to meet with people who helped found their group, and who they potentially have ongoing entanglements with, then they're also always too busy to be doing charita

      • We have tried repeatedly for almost three years to get a meeting with Karen and Bradley in order to discuss this and other claims we have concerning their and the Conservancy’s activities.

        This is a red herring. Requesting a meeting is not how you go about asserting a trademark.

        Typically a letter is sent stating your position. The opposing party can agree, disagree, request to discuss terms, or ignore you... Where you go from there varies, but you always start by giving notice in writing that there is an issue to be resolved.

    • It seems SFLC has a VERY weak case unless ...

      Since corporations can't file lawsuits pro-se, they're required to hire a lawyer to do it, this seems to be a very weak default assessment.

      More logical would be something like, "if I think they would require X and Y in order to have a strong case, and they did indeed file the case, and it isn't a case that would reasonably involve any type of cash settlement, then most likely X and Y are implied."

      I would at least want to some reason to believe X and Y are a certain value before believing that they imply an

  • Judean People's Front. We're the People's Front of Judea! Judean People's Front. Cawk.
  • I am a fan of open source, and typically publish my personal software under AGPL3+. Now, that said, I think the free and open source software (FOSS) community has been hiding from the implications of the increasingly rabid interpretations of its philosophy for some time, and now the chickens are starting to come home to roost—although I admit the parent suing the child for using the family name is an odd first visible symptom.

    One of the criticisms of the "viral" GNU Public License (GPL) when it was fi

    • by Bruce Perens ( 3872 ) <bruce@perens.com> on Saturday November 18, 2017 @03:11PM (#55577733) Homepage Journal

      Actually, the appeals court in Oracle v. Google ruled that APIs could be copyrighted. We were previously interpreting based mainly by the finding in CAI v. Altai. As a result of the new finding, I do not believe that dynamic linking works as an insulator between GPL and proprietary software. There will be more litigation and maybe this new ruling will be overturned, or maybe not. I always felt that dynamic linking of proprietary and GPL was risky and never advised my customers and their attorneys to do it.

      The point about having a build environment is that the AGPL3, which you use, is a sharing license, and if you only share unbuildable software that is in general an attempt to avoid what the license requires. There is not any rule saying you have to provide a Windows build environment, but you are supposed to provide all of the Makefiles, etc., and whatever internal tools you built that are necessary for compiling and installing the software. These are generally things that make a manufacturer-specific installable BLOB file.

      Nobody is compelled to use GPL code. If sharing and license compliance is going to be a problem for your business, you are not part of the target user community of the developers, and please don't build it into your proprietary product.

      People who have problems understanding this stuff are welcome to contact me privately at bruce at perens dot com. I don't charge and sometimes there is complexity and implication that I can clear up for you.

      • One can hardly ask for a more authoritative response. Thank you.

        The SFLC's guide to GPL compliance denies the dynamic linking isolation claim. The dynamic linking claim has always seemed like voodoo to me: "I have magic pixie dust that permits GPL violations" seems unlikely. But I have heard (non-authoritative) claims that (i) a proprietary application providing a specification for plug-ins, (ii) a GPL plug-in being written and released, and (iii) the application being configured by the user to use the GPL

        • It seems to be (I am not a lawyer) that copying for the purpose of interoperability is Fair Use, and that plugins are a system for allowing and encouraging third-party interoperation. Therefore, it does not automatically follow that there would be a violation there.

          Certainly if that lawsuit came up, those details would affect the exact things that the lawyers on each side would need to argue, but it looks like a wash to me; whoever it turns out might have needed a license was only engaging in fair use!

          Also,

        • release of the proprietary software under the GPL is the only remedy open to the proprietary software owners

          This is never the case. There is no required performance in copyright infringement cases.

          The defendant has to stop the infringement. They should no longer distribute infringing software (or perform it in case of AGPL) and if they technically are capable of updating software in the field to a non-infringing version they should do so. They can either do this by removing the GPL software from the product

      • As a result of the new finding, I do not believe that dynamic linking works as an insulator between GPL and proprietary software...I always felt that dynamic linking of proprietary and GPL was risky and never advised my customers and their attorneys to do it.

        It is almost certain that dynamic linking (or any other kind of linking!) is not an insulator between GPL and proprietary software......For example, even connecting over the network will not prevent it from being infringement, if the connector is a derivative work. The was clear that the abstraction, filtration, comparison test should be used [zerobugsan...faster.net]. Briefly, you filter out everything (in the accused code) that was not derived (at least conceptually) from the original code, and whatever remains is infringing (inte

        • There will be more litigation and maybe this new ruling will be overturned, or maybe not.

          The appellate court ruling [eff.org] is high quality, clear, and logically ties together a lot of the loose ends in software copyright. It will not be overturned, and will guide software copyright for generations to come (that is, although there are still procedural ways it could be overturned, any reasonable judge is likely to be convinced of the solidness of that decision). Future litigation will revolve around what exactly should be filtered out, and what can be abstracted, thus building on the appellate court decision.

          The whole truth please. In 2016 a jury found that Google's use of Oracle's (newly deemed) copyrighted APIs is fair use [arstechnica.com]. Final score: greed 0, common sense 1.

          Never mind that the "high quality" appellate decision you laud is actually idiocy in the supreme, the structure and sequence of function declarations not deserving any more copyright protection than a list of names and phone numbers does. Now that that stupidity has been effectively neutered by a jury it does not matter whether it stands or falls, but i

          • Well you've certainly displayed your ignorance loudly, and cheered for your team.
            The bottom line remains, if you want to use an API, make sure you have a license.

            The whole truth please. In 2016 a jury found that Google's use of Oracle's (newly deemed) copyrighted APIs is fair use [arstechnica.com].

            The whole truth is the jury's decision hardly matters at all, as the appeal process continues.

            • Given that the Supes already denied cert on the first case, I am not clear why you are so sanguine about the appeal in the second. Want to explain any more?

              • I'm not sure what you're talking about here. The second case has already gone to the appellate court, plenty of filing has been done and answered [eff.org], and that's what I was referring to. As to your other argument:

                I work with more than one attorney who is much more dubious about the appellate court ruling

                Have those lawyers actually read the ruling? I've talked to lawyers who were dubious about it, but none of those had actually read it. If you do know a lawyer who has read it and formed a coherent argument why it is false, that would be interesting to hear (or if they've formed a coherent argument even

                • One teaches at Boalt and I will try to engage him on it the next time I speak with him. The other was involved in the lower court case and thus probably won't say more.

                  • One teaches at Boalt and I will try to engage him on it the next time I speak with him.

                    Yeah, that would be interesting to hear if you get a chance.

            • I am not sure what planet you live on, where juries hardly matter.

        • I work with more than one attorney who is much more dubious about the appellate court ruling. I don't think you can make so sure a bet yet.

    • by cas2000 ( 148703 )

      Your mind is like a sponge and a blender - it soaks up everything and blends it into an incoherent mishmash of bizarro-world nonsensical sludge.

      none of what you just said makes any sense, and none of it is true.

      for example, absolutely no-one "agrees" that using ZFS with the Linux kernel "somehow relicenses ZFS under GPL2". Nobody even seriously thinks that.

      What everyone agrees is that it is completely legal for an end-user to combine software distributed under two different, incompatible licenses (such as

  • Software Freedom Conservancy has at least 46 member projects [sfconservancy.org] for whom they hold property as a corporation, provide a corporate veil against liability for the project and its develoers, provide legal advice, and act as a tax-exempt organization on behalf of the projects (a 501(c)3) so that the projects can receive donations which the donors write off of their income to reduce their overall tax load by a portion of the donation.

    This is a big deal for the projects concerned.

    So, where are those projects? Why do I not yet see the project's official comments on behalf of SFC, but only a few personal comments from projects that are not SFC members? Why haven't they grouped together and all signed a letter to the community in support of SFC?

    Please wake up, folks.

    • Are you sure they even have users? It is just crap like Boost [wretch], Darcs, Git, Incscape, Mercurial, phpMyAdmin [pause for 90s flashbacks], QEMU, Samba [crying], Selenium, Squeak, SWIG [thanks for the code I promise not to look at it], uCLibc [I actually use this one], and WINE.

      Probably they don't come out in support of their great Champion because they don't have users and don't care. /s

      The good news, without Darcs, Git, or Mercurial we'd still have SVN and CVS to choose between.

      It all reminds of the F

      • > Are you sure they even have users?
        > The good news, without Darcs, Git, or Mercurial we'd still have SVN and CVS to choose between.

        Now you've just outed yourself as a troll, which I was starting to suspect. Saying "Are you sure they even have users?" in the same sentence as git means you're deliberately trolling, or so unfamiliar with modern software development and the importance of git as a Conservancy project that I'm surprised you are even aware of a site like slashdot.

        Either way, you're not wort

        • Grampy, meds. Meds, Grampy. Don't ask about the lawn, there is an injunction.

          It isn't like I left bare sarcasm waiting to trap an unsuspecting reader, I put the /s right there on the part that was a joke, and then made serious comments.

          I find it interesting that two different people who are close to this story responded to my comment, and they both attacked the joke, pretended not to see that it was clearly labeled as a joke, and did not in any way respond to the substance of my comment.

          You take it a step f

      • Why did anyone up-moderate this??? Git certainly has users. Anyone who thinks otherwise lives in a different reality.

        Maybe you don't like Boost and C++, but they are very big among corporates. Hey, I don't like Java (and for that matter do not use Boost because I tend to write C+- when I use that language) but I acknowledge that there are billions of lines of Java written written.

        QEMU is a component of virtualization systems and you may think you're not using it but odds are you are. uClibc is in pretty muc

        • LOLOLOLOLOL Bruce, Bruce, I haven't ROFLCOPTERed like that in years, thank you man! Thank you. ---{--{@

          You're right, I hate C++. As soon as C stops being the best tool, I either jump upwards to Ruby or down to ASM. Never never never switch to C++, it is all knife and no handle.

          Also, an astute reader would notice that I said I use uCLibc, so then there must be at least an 85% chance I use QEMU.

  • The community should withdraw all support from the SFLC, support the SFC solely instead, and distance themselves from any organization continuing to sponsor the SFLC.

    I think the problem will work itself out.

    • I think

      As clear as air, in that you didn't give any reasons and so there is nothing to see in your opinion.

    • by jjohn_h ( 674302 )

      Lawyer Moglen has presented the case for dynamic linking under GPL2 and honestly concluded that it is not clear. He and SFLC accepted dynamic linking, SFC did not and started a war.

      I personally got the impression that the fanatics are on SFC side. The pragmatics can only support SFLC. Their position makes everything easier and no freedom is lost with it.

      The trademark fight is not the real issue. The two parties should sit down and talk.

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