[od-discuss] Trademark attribution loophole?

Sat Sep 14 13:08:24 UTC 2013

"Patent and trademark rights are not licensed under this Public License."
(Section 2 b.2.
http://staging.creativecommons.org/licenses/by-nc-sa/4.0/legalcode)

This benign provision may be read to support the ugly tactics..

Best,

Tomo

On Sat, Sep 14, 2013 at 9:32 PM, Kent Mewhort <kent at openissues.ca> wrote:
> On 13-09-13 10:24 PM, Mike Linksvayer wrote:
>
> On Fri, Sep 13, 2013 at 4:04 AM, Kent Mewhort <kent at openissues.ca> wrote:
>>
>> I just gave this latest draft a careful line-by-line read over and it
>> looks conformant to me (other than the clearly non-conformant NC clause in
>> this license type).
>>
>> Although I don't think it makes it non-conformant, I completely agree with
>> Herb that the new requirement in 4.0 to identify the author "in any
>> reasonable manner requested by the Licensor (including by pseudonym or
>> trademark if designated)" is a slippery slope and a cause for concern.
>> There's a similar clause in GPLv3 which allows licensors to attach
>> additional terms for the "preservation of specified reasonable legal notices
>> or author attributions".  In at least a of couple cases, this has been
>> abused to require obnoxiously visible brand advertising and watermarking
>> (eg. Flexpaper and SugarCRM).
>>
>> Certainly, the "reasonable" tempers the scope of what a licensor can
>> require and brand advertising demands may very well be out of scope;
>> however, in any case, it's easy enough for a licensor to use a heavy-hand in
>> crafting these attribution obligations, creating uncertainty for licensees.
>
>
> Hmm, I failed to notice the word trademark previously, though it was
> introduced in the previous (3rd) draft. If one is requiring a use of a
> trademark for attribution, should not one also be granting a limited
> trademark permission for the purpose of attribution? Or is one implicitly
> doing so?
>
> There's a recent software license that explicitly attempts to use requiring
> retaining trademarks and not granting trademark permission to turn a
> seemingly open source license into a non-commercial-only license, which I
> find kind of ugly, see 4.2 and 4.3 of
> https://github.com/system76/beansbooks/blob/master/BEANSBOOKS.LICENSE.md
> (and clearly not open).
>
> Ugh, that is ugly -- and I think you're right that the same could tactic
> could be leveraged with the trademark attribution requirement in CC 4.0d4.
> I believe a requirement to attribute with a trademark would generally imply
> a limited license with respect to that mark, but not if explicit text to the
> contrary accompanies the attribution request.  For example, if Foobar Inc.
> made a derivative work that comes under CC-BY-SA, it seems they could
> effectively redistribute it commercially and non-openly with something along
> the lines of:
>
>   "Pursuant to section 3(A)(1)(a) of our CC-BY-SA license, we require you to
> visibly mark this work or any derivative works with the Foobar Inc. logo.
> Please see this webpage for our trademark licensing options (note that the
> CC-BY_SA license does not grant you any permission to use Foobar Inc
> trade-marks; you must license these from us separately)".
>
> Perhaps this is a loophole that needs explicit plugging in this section of
> the CC license. Maybe "You must...identify the creator(s) of the Licensed
> Material and others designated to receive attribution, in any reasonable
> manner requested by the Licensor (including by pseudonym or trademark; if by
> trademark, the Licensor grants you permission to use the trademark for the
> purposes of attribution)."
>
> I hope no one minds, but I'm cross-posting this back to cc-licenses for
> further discussion there as well...
>
> Kent
>
>
>
>
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