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

[Matthew Rubenstein]

	There are two issues directly relevant to this thread. One is the
actual rights inherent in a trademark. The other is the constraints
Digium is claiming in its license. They are related. Since trademark
rights are the law, and this -biz community isn't going to change it,
but rather will accept it, those rights are merely background. But
getting them right is important to understanding how much of Digium's
policy could be changed, where it is only Digium requiring it, not the
law.

	I think this thread (especially your posts, Bret) has made distinct
those two issues. And in so doing, highlighted those Digium policies
that are not merely required by their trademark under law, but either
are Digium's privileges created in its license, or are non-obvious
constraints of using Asterisk (the SW) that are created by that license,
or both.

	So long as the trademark law basis is understood, the proper focus of
this thread is its consequences, both real and claimed, on Asterisk's
use in the market.


On Wed, 2008-06-11 at 12:00 -0500, asterisk-biz-request at lists.digium.com
wrote:
> Date: Wed, 11 Jun 2008 15:37:07 +0200
> From: Trixter aka Bret McDanel <trixter at 0xdecafbad.com>
> Subject: Re: [asterisk-biz] Open letter to digium,      asterisk
> developers
>         and     consultants
> To: Commercial and Business-Oriented Asterisk Discussion
>         <asterisk-biz at lists.digium.com>
> Message-ID: <1213191427.4976.59.camel at trixtop.0xdecafbad.com>
> Content-Type: text/plain
> 
> 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
> Belfast +44 28 9099 6461        US +1 516 687 5200
> http://www.trxtel.com the phone company that pays you!
-- 

(C) Matthew Rubenstein