[od-discuss] Trademark attribution loophole?

Kent Mewhort kent at openissues.ca
Sat Sep 14 13:32:51 BST 2013


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 
> <mailto: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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