[CentOS] Re: Linux Trademarked? -- [OT] time to take this off-list (it's clearly just you and I) ...

[Mike McCarty]

Les Mikesell wrote:
> On Wed, 2005-08-24 at 01:30, Mike McCarty wrote:
> 
> 
>>How so? Linus Torvald published the Linux(R) kernel some time back. 
>>Later, he trademarked the name "Linux". Now, he is enforcing the
>>trademark. If he pushes things (and he may have to, if the trademark
>>is to survive) he may have to require that anyone republishing his
>>stuff, even under GPL, remove the string, even from source, and
>>even if it doesn't appear in the object.
> 
> 
> Which I think presents an interesting paradox.  In publishing something

> under the GPL, Linus has already given everyone who has a copy the
> right to redistribute verbatim or changed copies as long as the
> GPL requirements are met (part of which includes a statement that
> no additional restrictions can apply).  So, prior to the establishment
> of the trademark, the right to redistribute copies including the name
> has been given away.  In fact, I don't see how you could meet the
> requirement of keeping copyright notices intact for the linux kernel
> without calling it linux.   And I'd expect it to be very difficult

Precisely my point. And, in order to preserve the trademark, he may
have to do something of the sort. Remember, the law doesn't have to
make sense, it just has to be enforceable :-)

> to remove the name from the source code and keep it working.

Why is that?

> There might be a special case here since Linus still controls the
> trademark, but suppose it survives him and falls into the wrong
> hands.  Suppose, for the worst case example, SCO owned the trademark.

Now, now. Your prejudices are showing :-)

How about Yoko Ono?

> What could we expect then?  When I was developing stuff under AT&T
> SysV UNIX years ago I would never have guessed what was going to
> happen to ownership of that code/name/trademark. Does the GPL really
> provide the irrevokable protection it claims in spite of any subsequent
> attempts that might be made to limit use/redistribution?

I dunno. There is legal theory in support of the GPL, and some people
who think the theory is absolutely nuts, and can't really be enforced.

I think Benjamin Franklin was right in opposing certain "IP" rights.
IIRC, in the US of A there are three (3) legally enforceable IP rights:
Copyright
Patent
Trade Mark

There is also Trade Secret, but that is not legally enforceable. One 
*can* however sue spies.

I was surprised to see the mention of the phrase "fair use" in the
australian website. I was under the impression that the "fair use"
doctrine was a USA thing only. Apparently not.

Not too long ago, there was a seminal case involving the "fair use"
doctrine as applied to copyright. It seems that there was a university
professor who made Xerox(TM) copies of some books he had, and stored
them in a filing cabinet. He was sued. His defense was "fair use".
The plaintiffs pointed out that he stored the copies in his file, but
did not actually "use" them. The plaintiffs prevailed, and he had to
destroy the copies and pay some damages. I forget the details, but
I vividly recall just how literal these things are. "Fair use"
*does* mean *use*.

So I wonder how one can have "fair use" of a Trade Mark? Seems
impossible.

YMMV

Mike
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