Re: [Fwd: FW: For Approval: Generic Attribution Provision]

[David Woolley]

> No, not really.  If I tell you that you must include this logo in this way
> in the UI of your redistributed work, then I am implicitly but inarguably

I seem to remember that the "Exhibit B" style licences are self contradictory
in this respect, explicitly denying all trademark rights whilst implicitly
licensing some!

> giving you a license to trademark rights I might have in that logo and
> name, limited to usage as defined by that license.

[Nicholas Goodman]

> copacetic to Open Source.  My intuition is that giving credit to authors
> is cheap for the value it provides, even if we're talking about screen

Can someone help articulate the "value it provides" to me?  It provides compulsory advertising so I can see how that is valuable to the licensor but how is it valuable to Open Source?  What benefits does attribution (badgeware, anywhere, anytime) provide the user?  Other than the "opportunity" to buy services from the holder of the badge, does this signal some sort of certification?  Some sort of origin without tampering (NO)?  The only value at all is to the licensor who gets free advertising out of the deal.  I think it's a farce to say badgeware is anything except companies (and more rarely individuals) trying to monetize code they've distributed with additional constraints and stipulations on distribution.  All the hundreds of millions of open source to date, and attribution in source and docs is OK to them.  Let's be honest, this isn't about giving "credit" it's about advertising.  Giving credit is very much in line with open source ideas (docs, source, startup, about box, etc) and is ALREADY permitted. 

The only value I see, is that it would bring people who don't really want to write open source to the "open source" movement by allowing them to gain commercial value from forced attribution (advertising).  ie, we can add more code/applications to "open source" if we broaden that definition.

What am I missing?  What do the USER, COMMUNITY, and WORLD get out of badgeware other than more startups popping out more pseudo open source applications?  (ie, Free to use software)

Nick

[Russ Nelson]

Dalibor Topic writes:
 > I'd say that badgerware that requires displaying and propagating
 > trademarked logos, is fundamentally contrary to the idea of open
 > source, since it makes it very hard to actually fork the code
 > without running foul of trademark laws.

If the license requires you to use a trademark, you have an explicit
license to use the trademark.  If it doesn't force you to use a
trademark, then there's no issue here.  Just comply with trademark law.

--
--my blog is at    http://blog.russnelson.com   | You can do any damn thing
Crynwr sells support for free software  | PGPok | you want, as long as you
521 Pleasant Valley Rd. | [phone]       | don't expect somebody else
Potsdam, NY 13676-3213  |     Sheepdog          | to pick up the pieces.

[Lawrence Rosen]

Larry Augustin wrote:
> I don't believe you need a license to the trademark Foo to say a piece of
> software is "Foo-based", "derived from Foo", or "based on Foo".  That's
> simply an expression of fact describing the origin of the code in the
> derivative work.  I believe you could require attribution of that form
> without granting a license to the trademark.

Quite true, although one probably should be careful then not to confuse
those phrases--in the minds of consumers--with actual trademarks or
certification marks so that consumers are misled as to the source or origin
of the goods, or believe that there is some assurance of quality because the
"attribution" notice is there. When an attribution notice is designed to
serve the purposes of a trademark, it may be difficult to deny later that no
trademark license was intended.

And so we return to the central question: What are the limits under open
source rules to such factual statements of attribution that a FOSS license
can *require* in the UI of all derivative works:

   "Lovingly merged with the outstanding software
    I received from Joe Foo and that bears the FOO
    trademark" must be displayed in all derivative
    works in 48-point characters at the top of the
    main WELCOME screen.

One suggestion, I gather, is that we leave such decisions to the software
marketplace rather than state a rule for the OSD. As a potential licensee,
if I don't think Foo software is outstanding, or if I'm not willing to
declare the fact that I merged it in lovingly, or if I just don't want to
allocate screen space to Joe Foo's message, I can simply refuse to base my
derivative work upon Foo.

/Larry

> -----Original Message-----
> From: Larry M. Augustin [mailto:lma@...]
> Sent: Tuesday, December 12, 2006 11:21 PM
> To: license-discuss@...
> Subject: RE: [Fwd: FW: For Approval: Generic Attribution Provision]
>
> I don't believe you need a license to the trademark Foo to say a piece of
> software is "Foo-based", "derived from Foo", or "based on Foo".  That's
> simply an expression of fact describing the origin of the code in the
> derivative work.  I believe you could require attribution of that form
> without granting a license to the trademark.
>
> Trademark usage around Open Source is a whole other area that needs some
> attention.
>
> Larry
>
> --
> Larry M. Augustin
>
> > -----Original Message-----
> > From: Lawrence Rosen [mailto:lrosen@...]
> > Sent: Tuesday, December 12, 2006 10:24 PM
> > To: license-discuss@...
> > Subject: RE: [Fwd: FW: For Approval: Generic Attribution Provision]
> >
> > > On Mon, 11 Dec 2006, Dalibor Topic wrote:
> > > > I'd say that badgerware that requires displaying and propagating
> > > > trademarked logos, is fundamentally contrary to the idea of
> > > > open source, since it makes it very hard to actually fork the
> > > > code without running foul of trademark laws.
> >
> > Brian Behlendorf responded:
> > > No, not really.  If I tell you that you must include this logo in this
> > way
> > > in the UI of your redistributed work, then I am implicitly but
> > inarguably
> > > giving you a license to trademark rights I might have in that logo and
> > > name, limited to usage as defined by that license.
> >
> > Brian, if you give me a license to trademark rights you have in your
> logo
> > and name, and thereby allow or require me to apply that logo or name to
> my
> > derivative works over whose quality you have no control, you are likely
> to
> > lose your trademark.
> >
> > Dalibor Topic's fear (from the vantage point of the licensee who forks)
> is
> > not realistic because forking is always allowed for open source software
> > regardless of the trademarks it bears, but the licensor should fear that
> > his
> > trademark will become useless if he requires it to be displayed on those
> > forks.
> >
> > The stronger the GAP requirements to include licensor's logo and
> trademark
> > in prominent places on uncontrolled goods, the more likely the loss of
> the
> > trademark. Given that reality of trademark law, I'm curious why so many
> > companies seem to want such strong attribution in UIs of other
> companies'
> > modified software?
> >
> > /Larry
> >

[Brian Behlendorf]

On Wed, 13 Dec 2006, Matthew Flaschen wrote:

> Lawrence Rosen wrote:
>
> I'm curious why so many
>> companies seem to want such strong attribution in UIs of other companies'
>> modified software?
>
> That's a very good question, and I don't know for sure.  However, I
> think part of it is that they don't take OSD #3 seriously.  They expect
> copies to have minor or non-existent changes, and want to emphasize that
> they own and control the program; the accuracy of this obviously varies
> considerably.

There are an unfortunate number of Open Source projects where
contributions from people who are not the primary authors are nil; and
likewise, there are examples of non-OS-but-published-source projects where
outside contributions are not nil.  We all know that OS licensing is not
magic pixie dust that will guarantee outside contributions; even high
quality code and a willing core developer pool can't do much if the domain
is too specialized or the skillset gap between users and developers is too
great.  Therefore, sadly IMHO, most of the business value of Open Source
licensing is seen to be in rapid adoption, easy redistribution, and a
better way to build ISV/VAR partnerships.  So, if you're the company
funding that Open Source project, you've got to do things to address the
problem that your competitors can build support and customization
businesses on your code without the concurrent investment; and that people
who are your partners today could easily become competitors tomorrow by
shifting a line in their product roadmaps.  This is completely aside from
the point about whether we need a GPL-for-web-services, as there are many
companies these days that are services-only.

So in that context, it's not surprising that some companies feel that even
the GPL's quid pro quo is not strong enough, because a service-only
competitor won't have interesting code.  Instead, the requirement is "make
sure your customers know that I wrote the code you're making money from",
with a link, thereby giving the original author some unfair advantage over
redistributors.  Presumably most original authors also offer a second
license, for real dollars, that removes the logo, the classic dual
licensing approach.

> Probably the drafters didn't really fathom people
> extracting code for totally unrelated use.

Oh they probably do, they just probably assign zero value to it.

  Brian

[Brian Behlendorf]

On Tue, 12 Dec 2006, Larry M. Augustin wrote:
> I don't believe you need a license to the trademark Foo to say a piece of
> software is "Foo-based", "derived from Foo", or "based on Foo".  That's
> simply an expression of fact describing the origin of the code in the
> derivative work.  I believe you could require attribution of that form
> without granting a license to the trademark.

That's what led me to think the same thing about logos - the web has tons
of little box logos, e.g. "get Firefox", "IE 5.0 only" (hah), "created by
WordPress", etc., and no one's telling those holders their marks are at
risk.

  Brian

[Wilson, Andrew-2]

 
Matthew Flaschen wrote:

> Lawrence Rosen wrote:
>> I'm curious why so many
>> companies seem to want such strong attribution in UIs of other
companies'
>> modified software?

> That's a very good question, and I don't know for sure.  However, I
> think part of it is that they don't take OSD #3 seriously.  They
expect
> copies to have minor or non-existent changes, and want to emphasize
that
> they own and control the program; the accuracy of this obviously
varies
> considerably.  Probably the drafters didn't really fathom people
> extracting code for totally unrelated use.

Perhaps a more likely explanation is that the drafters expect to
build a business model around dual licensing, selling
proprietary licenses to remove the badgeware.  There is more
than a faint whiff of shareware, freeware, or trialware around
such licensing plans, as opposed to open source.

Andy Wilson
Intel Open Source Technology Center

[Matthew Flaschen]

Brian Behlendorf wrote:
> There are an unfortunate number of Open Source projects where
> contributions from people who are not the primary authors are nil

I don't really see that as unfortunate.  Open source is meant to allow
modified versions and outside contribution, not to force and perhaps not
even to strongly encourage them.


> Oh they probably do, they just probably assign zero value to it.

Perhaps

Matthew Flaschen

[John Cowan]

Brian Behlendorf scripsit:

> There are an unfortunate number of Open Source projects where
> contributions from people who are not the primary authors are nil;

This is expected and even desirable.  I get few patches for TagSoup
<http://tagsoup.info> and I incorporate very few of them as-is;
the program is a chapel ("cathedral" would overstate the case), not
a bazaar.  Nevertheless, it's important to me that it is Open Source,
if only because it lets me tell people "Sure, change that if you want"
rather than petitioning me for requests that I think will be less than
helpful for most users.

--
You escaped them by the will-death              John Cowan
and the Way of the Black Wheel.                 cowan@...
I could not.  --Great-Souled Sam                http://www.ccil.org/~cowan

[DShofi]

On Tue, 12 Dec 2006, Larry M. Augustin wrote:
> I don't believe you need a license to the trademark Foo to say a piece of
> software is "Foo-based", "derived from Foo", or "based on Foo".  That's
> simply an expression of fact describing the origin of the code in the
> derivative work.  I believe you could require attribution of that form
> without granting a license to the trademark.

That's what led me to think the same thing about logos - the web has tons
of little box logos, e.g. "get Firefox", "IE 5.0 only" (hah), "created by
WordPress", etc., and no one's telling those holders their marks are at
risk.

Just be mindful of the difference between the fair uses of textual trademarks referenced above in examples (by Larry) and the requirement of a license to use a logo.

David

David M. Shofi
Intellectual Property Counsel
ATMI, Inc.
7 Commerce Drive
Danbury CT 06810
dshofi@...
Tel: [phone]
Fax: [phone]
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[Chuck Swiger]

On Dec 13, 2006, at 9:10 AM, Lawrence Rosen wrote:
> [ ... ]  What are the limits under open source rules
> to such factual statements of attribution that a FOSS license
> can *require* in the UI of all derivative works:
>
>    "Lovingly merged with the outstanding software
>     I received from Joe Foo and that bears the FOO
>     trademark" must be displayed in all derivative
>     works in 48-point characters at the top of the
>     main WELCOME screen.

OSD #10...?

As far as I can tell, the existing definition works just fine: an OSI-
approved license is may require attribution, so long as the  
attribution does not make it impossible to reuse the licensed code  
because the attribution requirements cannot be satisfied for common  
situations.

Would the OSI board approve a license which required anyone who used  
or redistributed the software to send out spam advertising the  
product?  I think Andy is right: "open source" isn't shareware or  
adware...

--
-Chuck

[Lawrence Rosen]

> That's what led me to think the same thing about logos - the web has tons
> of little box logos, e.g. "get Firefox", "IE 5.0 only" (hah), "created by
> WordPress", etc., and no one's telling those holders their marks are at
> risk.

I recall, in the early days, telling Robin Miller that he couldn't change
colors or fonts on the officially-approved OSI logo when/if he used it as a
flag for articles on Slashdot, and that he could use the logo only as a link
from those articles to the OSI website or to other similar OSI-related
articles. He refused and (IIRC) designed his own logo, similar to but not
enough alike our logo that it didn't risk our logo's trademark status and
yet gave him the freedom he wanted.

Of course, then OSI never promoted its logo to the point where such issues
really matter. We have not yet become the BBB or UL mark for software that
I'd hoped for. :-(

I can't vouch for trademark expectations in the software industry, but I'm
pretty confident most of the "get Firefox" logos actually do link directly
to the Firefox site for free downloads of the official software. (Does
anyone here know of any situation where that logo links to an "unauthorized"
derivative work of the official Firefox distribution?) And I'm also pretty
confident that displaying the "get Firefox" logo is a voluntary step taken
by enthusiastic supporters of Firefox rather than a requirement of its
license.

/Larry

> -----Original Message-----
> From: Brian Behlendorf [mailto:brian@...]
> Sent: Wednesday, December 13, 2006 9:21 AM
> To: license-discuss@...
> Subject: RE: [Fwd: FW: For Approval: Generic Attribution Provision]
>
> On Tue, 12 Dec 2006, Larry M. Augustin wrote:
> > I don't believe you need a license to the trademark Foo to say a piece
> of
> > software is "Foo-based", "derived from Foo", or "based on Foo".  That's
> > simply an expression of fact describing the origin of the code in the
> > derivative work.  I believe you could require attribution of that form
> > without granting a license to the trademark.
>
> That's what led me to think the same thing about logos - the web has tons
> of little box logos, e.g. "get Firefox", "IE 5.0 only" (hah), "created by
> WordPress", etc., and no one's telling those holders their marks are at
> risk.
>
>   Brian

[Robin 'Roblimo' Miller]

> I recall, in the early days, telling Robin Miller that he couldn't change
> colors or fonts on the officially-approved OSI logo when/if he used it as a
> flag for articles on Slashdot...

Actually, you told Rob Malda, not me. But I got copied on most of the
correspondence. :)

- Robin

[Brian Behlendorf]

On Wed, 13 Dec 2006, Matthew Flaschen wrote:
> Brian Behlendorf wrote:
>> There are an unfortunate number of Open Source projects where
>> contributions from people who are not the primary authors are nil
>
> I don't really see that as unfortunate.  Open source is meant to allow
> modified versions and outside contribution, not to force and perhaps not
> even to strongly encourage them.

Sure.  But when people complain "what does a badgeware provision do for
ME" and accuse the licensor of creating unfair advantages and discounting
the value of incenting contributions or derivative works, we can at least
understand the rationale.  I consider that unfortunate, personally, but am
willing to swallow my idealism - that allowing badgeware to carry the
label "Open Source" might be better for the world than creating a
big schism, and consuming passion and energy on a distinction that doesn't
really affect fundamental freedoms we value about Open Source.

  Brian

[Timothy McIntyre]

Hi,

I am in-house counsel for Terracotta, an open-source Java clustering
company.  As some of you may know, Terracotta released all of its
software last Monday under the Terracotta Public License, which is the
MPL (with a few edits, which are sampled from the CDDL), plus an
attribution clause that's similar (but not identical) to the ones used
by MuleSource, Zimbra, and others.  Terracotta has a standard
dual-license model, where users can either access our source code and
modify it under the TPL, or purchase a subscription to the enterprise
edition, and thus get a commercial license that comes with technical
support, a warranty, indemnification assurances, and removes the
attribution requirement.

We spent a long time choosing how to license our source code, and in the
end, we primarily wanted to (1) give developers the freedom to mix
Terracotta code with their own code, and then redistribute their own
code under a license of their choice, and (2) ensure that
redistributions of Terracotta code included some kind of visible
attribution of Terracotta.  We also wanted to, and still do want to, use
an OSI-approved license.  I was somewhat surprised to learn that none of
the other "MPL + attribution" software projects ever submitted their
licenses for OSI-approval.  I'd be happy to submit the Terracotta Public
License for approval, if it would help further the current discussion
surrounding the Generic Attribution Provision that Socialtext has
submitted.  However, my hunch is that it would be more productive to
stay focused on the current proposal.  Terracotta's perspective is that
if the OSI decides to approve a Generic Attribution Provision, we could
revise our license accordingly.

To follow up on Brian Behlendorf's and Larry Rosen's points regarding
trademarks -- yes, I agree that it's not advisable to basically tell the
licensee, "we're not giving you a trademark license, but nonetheless,
you have to include our trademarked logo when you redistribute our
software."  Essentially, that *is* a trademark license, and the licensor
runs the risk of losing his/her trademark as a result.  The way we
addressed this in the Terracotta Public License was to instead give the
licensee a license to the copyright in the phrase, "Powered by
Terracotta."  We don't require any redistributions to include the
Terracotta logo (i.e., trademark), and instead just ask for inclusion of
text.  Perhaps that's the workaround that could be used for the Generic
Attribution Provision?

-Tim

____________________________________________________
Timothy McIntyre // Corporate Counsel
Terracotta // Open Source Clustering for Java

web: www.terracotta.org
tel: [phone]
fax: [phone]






Brian Behlendorf wrote:

> On Mon, 11 Dec 2006, Dalibor Topic wrote:
>> I'd say that badgerware that requires displaying and propagating
>> trademarked
>> logos, is fundamentally contrary to the idea of open source, since it
>> makes it
>> very hard to actually fork the code without running foul of trademark
>> laws.
>
> No, not really.  If I tell you that you must include this logo in this
> way in the UI of your redistributed work, then I am implicitly but
> inarguably giving you a license to trademark rights I might have in
> that logo and name, limited to usage as defined by that license.
>
>     Brian
>

 

[John Cowan]

Timothy McIntyre scripsit:

> We spent a long time choosing how to license our source code, and in the
> end, we primarily wanted to (1) give developers the freedom to mix
> Terracotta code with their own code, and then redistribute their own
> code under a license of their choice, and (2) ensure that
> redistributions of Terracotta code included some kind of visible
> attribution of Terracotta.  

Here's what your license says (in normal capitalization; the original SHOUTS):

# However, in addition to the other notice obligations, all copies of
# the Covered Code in executable and source code form distributed or
# otherwise made available must, as a form of attribution of the initial
# developer, include on each user interface screen (i) the copyright
# notice in the same form as the latest version of the covered code
# distributed or otherwise made available by Terracotta, Inc. at the time
# of distribution of making available of such copy and (ii) the following
# text, which must be large enough so that it can be read easily:
# "POWERED BY TERRACOTTA".  The copyright notice and text must be visible
# to all users and be located at the very bottom and in the center of
# each user interface screen.  The word "TERRACOTTA" must be a hyperlink,
# so that when any user activates the link (e.g., by clicking on it with
# a mouse), the user will be directed to http://www.terracotta.org.

Would you agree that a Larger Work which has no user interface screens
is not bound by this requirement?  That is, do you think that inserting
the words "if any" after each instance of "user interface screen" would
still substantially achieve your goals?

If so, I think some forward progress is possible.  The OSI Definitions
don't merely contemplate certain types of software reuse, but *every*
type of software reuse.

> The way we addressed this in the Terracotta Public License was to
> instead give the licensee a license to the copyright in the phrase,
> "Powered by Terracotta."

Well, there probably is no copyright (de minimis) in such a phrase, and
you are not merely licensing the user to use it, but actually *requiring*
him to do so as a condition of the TPL.  But that's dictum.  :-)

IANAL; TINLA.

--
John Cowan   cowan@...  http://www.ccil.org/~cowan
Most languages are dramatically underdescribed, and at least one is
dramatically overdescribed.  Still other languages are simultaneously
overdescribed and underdescribed.  Welsh pertains to the third category.
        --Alan King

[Matthew Flaschen]

Brian Behlendorf wrote:
> I consider that unfortunate,
> personally, but am willing to swallow my idealism - that allowing
> badgeware to carry the label "Open Source" might be better for the world
> than creating a big schism, and consuming passion and energy on a
> distinction that doesn't really affect fundamental freedoms we value
> about Open Source.
>
>     Brian

It does affect fundamental freedoms, though.  For example, interfaces
could easily become burdensome if multiple types of badgeware are
developed.  Worse, one statement has implied that multiple forms of
badgeware could not be combined at all:

Ross Mayfield wrote:

> Yet, by their nature, licenses with
> attribution will only permit the original licensor to include its logo
> since the license cannot be amended by sublicensors.


Finally, there remains the objection on OSD #10 grounds.  It is not
acceptable to limit open source code to GUI programs.

Matthew Flaschen

[Brian Behlendorf]

On Wed, 13 Dec 2006, John Cowan wrote:
> Would you agree that a Larger Work which has no user interface screens
> is not bound by this requirement?  That is, do you think that inserting
> the words "if any" after each instance of "user interface screen" would
> still substantially achieve your goals?

I think "if any" might be a way out of this.

One could ask: what would prevent someone motivated to remove the
attribution to take Terracotta's product, reconfigure its business logic
as a program without a UI (remove the web pages, replace them with WS-*
services) and then redistribute that, to which another party ads a bunch
of user interface code?  The answer would be that the provision survives
the stripping of any UI, so that the third party would be required to add
that attribution to their new screens.  That makes sense, and has more
comparable precedent with the Apache license's call for attribution.

  Brian

[Matthew Flaschen]

John Cowan wrote:
> (i) the copyright
> # notice in the same form as the latest version of the covered code
> # distributed or otherwise made available by Terracotta, Inc. at the time
> # of distribution of making available of such copy

Strictly interpreted, that would mean someone has to use the copyright
notice from the latest version of Terracotta, rather than the version of
Terracotta used in the derivative.

> and (ii) the following
> # text, which must be large enough so that it can be read easily:
> # "POWERED BY TERRACOTTA".

That phrase can't be copyrighted, and telling people to use it might
necessitate an implicit trademark license (and probably weakens the
trademark).

> #The copyright notice and text must be visible
> # to all users and be located at the very bottom and in the center of
> # each user interface screen.

This doesn't make sense for a lot of reuses, such as daemons and scripts.

  The word "TERRACOTTA" must be a hyperlink,
> # so that when any user activates the link (e.g., by clicking on it with
> # a mouse), the user will be directed to http://www.terracotta.org.

This wouldn't allow reuse in programs for systems without network access.

It's admirable that you're willing to submit the license (though I would
prefer you avoid the phrase "open source" in the interim).  However,
it's probably best to wait on the outcome of the GAP.

Matthew Flaschen

[David Woolley]

> Strictly interpreted, that would mean someone has to use the copyright
> notice from the latest version of Terracotta, rather than the version of
> Terracotta used in the derivative.

Which would be an illegal requirement to misrepresent the copyright and
presumably void.  (I'm not sure whether one is allowed to replace
the assigner of copyright by the assignee, but I'm sure you cannot
modify the date of first publication and you cannot delete the copyright
claims of other contributors.)

IANAL, TINLA