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

[Trixter aka Bret McDanel]

First I want to say that I think this is distracting to the real issue,
however, since John Todd has responded in an official capacity regarding
this issue, I think some diversion can be had without losing sight of
everything else.


On Wed, 2008-06-11 at 08:40 -0400, Matthew Rubenstein wrote:
> 	Well, yes, that is the issue. But it's not clear how the issue is
> decided. If you use the trademark "Red Hat" or "RHEL" to say "This is
> Red Hat", that's a violation, because it's not Red Hat (even if it were
> the identical binaries). 

if its the identical binaries it is redhat, unless you are referring to
someone building identical binaries, with an identical tool chain, using
identical libraries resulting in a 100% bit match just for fun.

You are also going into what hte law states vs what digium was stating.
The origins of this thread were to discuss only what digium was saying.
I intentionally left out some other things about their trademark policy
that are not legally enforcable because they did not impair the ability
of people to support the project.

The clause about not using their trademarks in disparaging ways is not
entirely enforcable, for example if I were to do a comparison of
telephony products, and asterisk did not come out #1 it could be seen as
disparaging, and thus would be non-publishable under their terms.
Really, it would be difficult to get any court to accept that a factual
study can be barred from printing merely because it doesnt put someones
trademark in the best light.  Microsoft has a similar EULA claim,
however how many studies, security advisories, op-ed bits, etc have you
seen that MS cant really do anything about?

Trademark law was never designed to be used for censorship.  Generally
its difficult to use it that way, but it doesnt stop some from trying to
censor anything written about their product.



> 	In other words, has the market realized that a fork is not the same as
> the base version? 

Ahh but if you fork "Asterisk" you lose the ability to link in some
software.  Specifically openssl, libeditline (libedit?), and at least
one other that I forget now.  The linking exception applies only to
"Asterisk", however the trademark policy require a name change if you
add/remove anything.  As a result distribution of modified code is not
allowed when you look at all the policies in conjunction.

But then it appears that there is some confusion over the trademark law
and copyright law.  A fork being different from the base would be
covered over copyright law, a forks name - at least in this case - would
be trademark law.

So really it doesnt matter if the fork is in any way different, the
trademark issue only covers the name of said project.



> 	These cases aren't predictable unless there's a clear precedent. Since
> it's hardware, and IBM is a very clearly recognizable entity that a

its more than hardware the biggest and most expensive part of the
cloning process was the bios, which is um well you guessed it -
software.  It also fell under copyright and not trademark law.  Using
the name "IBM" when saying its compatible is the only place that
trademarks come up and that would be a totally separate issue from the
bios being cloned enabling a clone to be sold.

Generally you are allowed to use someone elses trademark as long as you
are not trying to confuse a consumer into thinking that your product is
officially part of, endorsed by, or even known to the other company.
You also cant make it appear that you own the trademark.

So legally I could say "Based on Asterisk" or "Compatible with Asterisk"
and at the bottom of the page disclaim that Digium owns the trademark to
Asterisk.  Although the policy itself states you cant do this (search
engine provision), it appears that its no longer going to be the case
after last nights email.


-- 
Trixter http://www.0xdecafbad.com     Bret McDanel
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