[asterisk-biz] Open letter to digium, asterisk developers and consultants

Tue Jul 29 15:00:29 CDT 2008

Doh!  It was just supposed to fade away into the archives......

On Tue, Jul 29, 2008 at 1:21 PM, David Boyd <dboyd at ignitetrx.com> wrote:
> Hi John,
>
> Are there any updates to this thread. I have not seen any further
> response from Digium, in the last 45- 50 days, and therefore am
> wondering if there will be any additional response.
>
> Thanks,
> Dave
>
> -----Original Message-----
> From: John Todd <jtodd at digium.com>
> Reply-To: Commercial and Business-Oriented Asterisk Discussion
> <asterisk-biz at lists.digium.com>
> To: trixter at 0xdecafbad.com, Commercial and Business-Oriented Asterisk
> Discussion <asterisk-biz at lists.digium.com>
> Subject: Re: [asterisk-biz] Open letter to digium, asterisk developers
> and consultants
> Date: Tue, 10 Jun 2008 19:53:05 -0500
>
> Brett -
>    Sorry for the delay on this - many of us were off-site yesterday,
> and today has been catch-up while writing snippets of this throughout
> the day.
>
>    You've brought up some good points, but I think they are issues of
> perception instead of issues of intention.  While Digium does keep
> control over the Asterisk and Digium trademarks, I think it is not
> our intention (or ability) to lock them down quite in the way you
> describe.  I will admit that after closely reading our policy and
> comparing it against your described concerns, there does seem to be
> some ways in which we can re-word that document so as to become more
> clear and allay your fears.  Some of your points are quite
> reasonable, and we will see what we can do to make it more obvious as
> to our goals with this policy, or at a minimum explain each in more
> detail here or on the trademark page.
>
>   I have a meeting tomorrow with our internal counsel to go into some
> of these details specifically and hopefully a longer reply will
> result from that meeting.  However, our comments on this have to be a
> bit more deliberate and well-thought out on all of your points than I
> will be able to produce today/this evening.   I have responded to a
> few of the issues below that are most obvious, and I would ask that
> you give me a day or two in order to come up with more concrete
> answers on some of the points that I do not address in this message.
> I have not outlined a response to every issue you make in the text
> below, but please be a bit patient as we work towards resolving or
> clarifying your points.
>
>   Let me just say again that while it is our intention to prevent
> confusing and dilutive use of our trademarked terms (most notably,
> the term "Asterisk") we do not intend to prevent the legitimate use
> of our trademarks when it comes to basic descriptive uses.
>
>   See the bottom of this message for some references.  My more
> specific comments are in-line.
>
> At 2:47 AM +0200 2008/6/9, Trixter aka Bret McDanel wrote:
>>
>>I am writing this letter to Digium and all those that use or develop
>>software for Asterisk.  Asterisk is released under a dual license, the
>>one I will focus on is the GPL license.
>>
>>Digium maintains a trademark on the word Asterisk, along with other
>>words.  The trademark policy they have forbids marketing a product with
>>the asterisk word if it is not "Genuine Digium Software".  If you modify
>>software, apply a patch, add 3rd party modules, this trademark policy
>>prevents you from distributing that software saying that its based on
>>asterisk, or even using the name asterisk within the program.
>>
>>This is particularly problematic for 3rd party module developers, since
>>they are forbidden from ever revealing that the module is "asterisk
>>compatible".  The same applies to AGIs.  All of this software is not
>>"Genuine Digium Software".  Consultants are not allowed per the
>>trademark policy from stating they work on asterisk systems, even if thy
>>are genuine digium software products.
>>
>>Further, the exceptions to linking that come with asterisk include
>>critical libraries that will not allow for building if the project is
>>not asterisk.  The trademark policy forces a fork in the software due to
>>the name, however the exceptions make this a less than trivial task
>>since you would have to replicate openssl and other libraries.  In
>>general this policy makes it all but impossible to distribute modified
>>works based on asterisk.
>>
>>The Digium trademark policy is available at http://www.digium.com for
>>reference.
>
> http://www.digium.com/en/company/view-policy.php?id=Trademark-Policy
>
>>While this may seem reasonable under the protection of the brand name,
>>it does defy the spirit and intent of the GPL in that effectively Digium
>>has banned forks of the project, distribution of 3rd party modules,
>>distribution of modified code, etc.
>>
>>I understand that digium wants to protect their name, their branding,
>>and make a clear difference between what they release and what others
>>release, however it seems to fly in the face of open source, the Free
>>Software Foundation, and the GPL specifically to place these
>>restrictions on the software.  It also makes it so that people who have
>>developed components for asterisk may have a difficult time leveraging
>>that experience for personal or professional advancement.
>>
>>I am requesting that the disclaimer apply to forks of the asterisk
>>project and not just asterisk itself, as this would allow people to
>>comply with the trademark policy and still distribute a functional
>>program under the terms of the GPL license.
>>
>>I further request that a difference be made in the trademark policy
>>allowing for advertising of products that include phrases such as
>>"Asterisk Compatible" or "Based on Asterisk" should someone wish to
>>place their AGI, 3rd party module, patch, etc on a webpage and write a
>>description for it.
>
> It is my belief that this is the case already, and that if you use
> the term in a descriptive manner the word "Asterisk" can be used
> without requiring Digium's permission.  Similar to the way you can
> say "We use 3M paints" or "This car runs on Exxon gasoline" without
> getting releases from 3M or Exxon, it is possible to say "This module
> is used by Asterisk to perform functions with the foo server."
> However, if you say "Asterisk-Powered" or "Asterisk Inside", then you
> would move from descriptive use to infringing use in a product name.
> In some cases, you may even see people using specific disclaimers in
> their advertisements like "All trademarks referenced in this
> advertisement are property of their respective owners" or similar
> wording.  No permissions have been provided, but acknowledgement is
> sometimes additionally given to remove even the possibility of
> confusion.
>
> This distinction between descriptive and assigning uses perhaps needs
> to be made more clear, and our wording might be inappropriate.  I
> will address this with our counsel and see what we can do to resolve
> this in one or more of three ways:  1) Clarify our documents with
> better examples to match what you reference, 2) Clarify our policy
> wording to make it more obvious as to our intentions, or 3) clarify
> my understanding of this and correct my perhaps incorrect
> interpretation.
>
>>I encourage anyone who agrees that the spirit of the GPL be followed,
>>not just its wording to contact digium in support of this proposal.
>>
>>
>>Specifics about the trademark policy obtained from
>>http://www.digium.com/en/company/view-policy.php?id=Trademark-Policy on
>>June 08 2008, 2:35am CEST.
>>
>>General
>>Genuine Digium Software is the software in the same form as originally
>>distributed by Digium, without modification to the code of any extent.
>>The only exception is that software may still be considered Genuine
>>Digium Software if, in connection with distribution of that software for
>>a certain platform, code has been removed that relates to functions that
>>would not work on that platform in any event. Once a change has been
>>made to the software, even if that change may be permissible under the
>>GPL, the software is no longer Genuine Digium Software, because Digium
>>did not make or control the change.
>>
>>
>>Uses that are not approved by this policy
>>"Use of a Trademark in a web page title, TITLETAG, META tag, or other
>>manner with the intent or the likely effect of influencing search engine
>>rankings or results listings."
>>
>>Search engines rank based on content of a page, this in effect prevents
>>you from using the trademarked words in your webpage if the software is
>>not "genuine".
>>
>>
>>Uses that are not approved by this policy
>>"Use of a Trademark to refer to services offered by your company, or to
>>suggest that your services are authorized or endorsed by Digium."
>>
>>If you are a consultant who specializes in asterisk systems you cannot
>>mention that, even if it is genuine digium software per the first part
>>of this policy.
>>
>>
>>There is a allowed use under the "fair use" provision, which has the
>>potentail to remove these, however the policy itself does not make it
>>clear that you would be allowed to use it in this way, and it does seem
>>to indicate specifically you cannot.
>
> I would agree that we have failed to make this as obvious as we
> should, and that will be a topic of discussion and possibly
> clarification in the document.  Our intention has never been to lock
> the word "Asterisk" so that it is impossible to use - that is not our
> goal, nor is it possible legally.  If you are a consultant who works
> with Asterisk, by all means please put that on your website and in
> your CV!  We encourage that type of use; it broadens the Asterisk
> ecosystem.  Using the word "Asterisk" in a statement of factual use
> is not prohibited - you can say "My company works on developing code
> and systems which utilize Asterisk."  However, when it becomes used
> as a descriptive term such as "Asterisk Enabled" then that does seem
> like it is an infringing use.  More on this in the follow-up reply to
> this soon to come.
>
>>--
>>Trixter http://www.0xdecafbad.com     Bret McDanel
>>Belfast +44 28 9099 6461        US +1 516 687 5200
>>http://www.trxtel.com the phone company that pays you!
>
>
> Further, here are some videos of the recent talk given at
> Asterisk-tag.org last week, which relate specifically to how Digium
> manages and protects its trademarks, service marks, and copyrights:
>
> Michelle Petrone-Fleming, Digium:
>
> 1 of 2:  http://video.google.com/videoplay?docid=7721041484802602556&hl=en
> 2 of 2:  http://video.google.com/videoplay?docid=-9080097810538247406&hl=en
>
> Basic trademark legal summary:
>
> http://www.publaw.com/fairusetrade.html
>
> JT
>
>
>
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