If it's not practical to redistribute free software, it's not free software in practice

[mjg59]

I've previously written about Canonical's obnoxious IP policy and how Mark Shuttleworth admits it's deliberately vague. After spending some time discussing specific examples with Canonical, I've been explicitly told that while Canonical will gladly give me a cost-free trademark license permitting me to redistribute unmodified Ubuntu binaries, they will not tell me what Any redistribution of modified versions of Ubuntu must be approved, certified or provided by Canonical if you are going to associate it with the Trademarks. Otherwise you must remove and replace the Trademarks and will need to recompile the source code to create your own binaries actually means.

Why does this matter? The free software definition requires that you be able to redistribute software to other people in either unmodified or modified form without needing to ask for permission first. This makes it clear that Ubuntu itself isn't free software - distributing the individual binary packages without permission is forbidden, even if they wouldn't contain any infringing trademarks[1]. This is obnoxious, but not inherently toxic. The source packages for Ubuntu could still be free software, making it fairly straightforward to build a free software equivalent.

Unfortunately, while true in theory, this isn't true in practice. The issue here is the apparently simple phrase you must remove and replace the Trademarks and will need to recompile the source code. "Trademarks" is defined later as being the words "Ubuntu", "Kubuntu", "Juju", "Landscape", "Edubuntu" and "Xubuntu" in either textual or logo form. The naive interpretation of this is that you have to remove trademarks where they'd be infringing - for instance, shipping the Ubuntu bootsplash as part of a modified product would almost certainly be clear trademark infringement, so you shouldn't do that. But that's not what the policy actually says. It insists that all trademarks be removed, whether they would embody an infringement or not. If a README says "To build this software under Ubuntu, install the following packages", a literal reading of Canonical's policy would require you to remove or replace the word "Ubuntu" even though failing to do so wouldn't be a trademark infringement. If an @ubuntu.com email address is present in a changelog, you'd have to change it. You wouldn't be able to ship the juju-core package without renaming it and the application within. If this is what the policy means, it's so impractical to be able to rebuild Ubuntu that it's not free software in any meaningful way.

This seems like a pretty ludicrous interpretation, but it's one that Canonical refuse to explicitly rule out. Compare this to Red Hat's requirements around Fedora - if you replace the fedora-logos, fedora-release and fedora-release-notes packages with your own content, you're good. A policy like this satisfies the concerns that Dustin raised over people misrepresenting their products, but still makes it easy for users to distribute modified code to other users. There's nothing whatsoever stopping Canonical from adopting a similarly unambiguous policy.

Mark has repeatedly asserted that attempts to raise this issue are mere FUD, but he won't answer you if you ask him direct questions about this policy and will insist that it's necessary to protect Ubuntu's brand. The reality is that if Debian had had an identical policy in 2004, Ubuntu wouldn't exist. The effort required to strip all Debian trademarks from the source packages would have been immense[2], and this would have had to be repeated for every release. While this policy is in place, nobody's going to be able to take Ubuntu and build something better. It's grotesquely hypocritical, especially when the Ubuntu website still talks about their belief that people should be able to distribute modifications without licensing fees.

All that's required for Canonical to deal with this problem is to follow Fedora's lead and isolate their trademarks in a small set of packages, then tell users that those packages must be replaced if distributing a modified version of Ubuntu. If they're serious about this being a branding issue, they'll do it. And if I'm right that the policy is deliberately obfuscated so Canonical can encourage people to buy licenses, they won't. It's easy for them to prove me wrong, and I'll be delighted if they do. Let's see what happens.

[1] The policy is quite clear on this. If you want to distribute something other than an unmodified Ubuntu image, you have two choices:

1. Gain approval or certification from Canonical
2. Remove all trademarks and recompile the source code

Note that option 2 requires you to rebuild even if there are no trademarks to remove.

[2] Especially when every source package contains a directory called "debian"…

Comments

Re: Comparing to Fedora / Comparing to Red Hat

[marahmarie]

"Is it what it's intended to state?"

If it is then it will completely screw everything up. In the context of what you wrote in the OP: "If an @ubuntu.com email address is present in a changelog, you'd have to change it."

To what, exactly? @redacted? I mean, seriously, this would screw up knowing who did what in the changelog which breaks the ability to trace changes back and contact the correct author(s) should any events arise where you would kind of have to know who did what or who to contact when things go wrong.

You might have snuck that in there as a half-baked joke or worst case scenario but seriously, that's a ridiculous thing to have to do. I don't clearly see how it would infringe trademark or copyright, either - I mean, my mind is bending trying to figure it out. Talk about repressive...

Why not just declare Canonical our next totalitarian state and get it over with. "I will just edit you out of existence"...yeah, right, right, right.

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

The problem is that they put their wording in the text that grants you the right to redistribute the bits, in terms of copyright. It's not some text that's expounding Canonical's belief about what constitutes a trademark violation, which would be a different thing. It's a condition of the right of redistribution: Canonical is saying "we will let you redistribute these bits, but ONLY if you do X, Y and Z".

Note this is exactly how the GPL and all other F/OSS licenses work: the author says "this is my work, and I get to choose what you can do with it (more or less), and I say you can redistribute it but only if you do X, Y and Z" (where X, Y and Z are usually something like 'provide the source on request' and 'pass these rights on to others'). Canonical is using the *exact same mechanism*, but the condition they state is "you must remove and replace the Trademarks". Not "you must avoid infringing Canonical's trademark rights".

As Matthew's said, you could read this as simply a drafting error, but he keeps asking Canonical to say "yes, all we mean is that you should avoid infringing on our trademarks, and you can do that just by changing (these specific occurrences)", and Canonical keeps refusing to do that. The longer that dance goes on, the harder it is to just say 'oh well obviously they just *mean* they don't want you to infringe the trademarks'.

Re: Comparing to Fedora / Comparing to Red Hat

[marahmarie]

You shouldn't have to guess as to the meaning or intent. This is a matter that relates to actual case and business law, not an interpretive reading of the Bible (as much as gubuntu might privately wish to differ on that point). The wording needs to be much more clear. No one should ever have had to/still need to sit back and simply take their best guess.

One is flirting with getting sued if they guess wrong. This isn't just shits and grins stuff.

I don't know what Canonical thinks they're doing but what they appear to be doing (besides playing God) is obvious enough that if they think other companies are going to strike deals with them rather than go with one of the many free variants and just not deal with all the bs, I think they're going to need to think again. Proof's always in the numbers.

Just give it some time.

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

Canonical is not going to make you remove the word "ubuntu" from changelogs unless they are misrepresenting the actual authors of changes, that's a completely unfounded concern.

Michael Hall (mhall119)

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

Where can I find a list of which uses of the word Ubuntu I have to remove and which ones can be left?

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

I don't even have a list of all of the times the word is used, so no. Don't misrepresent what you're doing and don't cause harm to the Ubuntu project, and you're going to be fine.

Re: Comparing to Fedora / Comparing to Red Hat

[mjg59]

Who determines whether I'm causing harm to the Ubuntu project? And how come Red Hat can provide a list of the terms I have to remove while Canonical can't?

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

> Who determines whether I'm causing harm to the Ubuntu project?

The trademark owner of course, because they are the only one with the legal ability to do anything about it.

> And how come Red Hat can provide a list of the terms I have to remove while Canonical can't?

Not knowing the technical details behind this, I can only assume it's because Red Hat has put in the work to cleanly separate their trademarks from the rest of their packaging. If you want to help Ubuntu do the same, you know how to create a spec for the work and how to propose it as a session during the Ubuntu Online Summit.

Re: Comparing to Fedora / Comparing to Red Hat

[jewelfox]

Ahh yes, I remember this is the passive-aggressive way FOSS types respond to critiques of "it's broken."

Re: Comparing to Fedora / Comparing to Red Hat

[mjg59]

> The trademark owner of course, because they are the only one with the legal ability to do anything about it.

So unless I get explicit permission from Canonical, there's the risk that they'll decide at some later date that my use is harmful and sue me for copyright infringement?

> If you want to help Ubuntu do the same, you know how to create a spec for the work and how to propose it as a session during the Ubuntu Online Summit.

If I committed to doing this work, can you commit to it being accepted?

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

> So unless I get explicit permission from Canonical, there's the risk that they'll decide at some later date that my use is harmful and sue me for copyright infringement?

Do you want Canonical to promise to never sue you, no matter what you do with the trademarks? You're not perfect, so yes there is a risk that you will do something harmful with the trademarks, which is precisely why you won't be given unrestricted use of it now.

> If I committed to doing this work, can you commit to it being accepted?

Not me personally, I don't have upload rights to the archive. But if you can find somebody who does, or better still convince the technical board that it should be done, then more power to you. You know how Ubuntu works, so why are you even asking questions that you already know the answer to?

Michael Hall (mhall119)

Re: Comparing to Fedora / Comparing to Red Hat

[mjg59]

Do you want Canonical to promise to never sue you, no matter what you do with the trademarks?

No, I want Canonical to promise to never sue me as long as I'm not infringing trademark law. There may be things that Canonical considers harmful but which are still legally permitted (eg, fixubuntu.com) - the current policy would appear to allow Canonical to sue me under copyright law anyway, and potentially to win.

You know how Ubuntu works, so why are you even asking questions that you already know the answer to?

The problem isn't technical. If there's a realistic chance of this work being accepted then I'm more than happy to go through the process of getting my archive access reinstated and doing everything necessary to get the package changes in. The problem is whether doing so would satisfy Canonical that replacing these packages would be sufficient to distribute derivative works of Ubuntu. That's not something the technical board can answer. If you're challenging me to do the technical work, I need some assurance that it'll actually be useful - hence my question.

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

> No, I want Canonical to promise to never sue me as long as I'm not infringing trademark law.

If all you want is a promise that you won't be sued without cause, I'm sure that can be arranged but it seems rather pointless. Same if you want a promise that you won't be sued for trademark infringement if you are not infringing the trademark. But if you want a promise that you won't be sued for *any* cause as long as you're not infringing trademark *specifically*, then that's absurd.

Re: Comparing to Fedora / Comparing to Red Hat

[mjg59]

> But if you want a promise that you won't be sued for *any* cause as long as you're not infringing trademark *specifically*, then that's absurd.

I want a promise that I will not be sued for copyright infringement due to any use of Canonical's trademarks in a way that does not infringe trademark law.

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

You're attempting to "try this in the press" to get them to clarify their policy. In my view what you are doing is worse than what Canonical is doing. But each to their own, I guess.

The way to clarify legal matters is one the following.

1. You do what is reasonable: Remove trademark violations and affirmatively assert that this is not an Ubuntu/Canonical endorsed product; do not link to Canonical repositories; etc. If you are sued, deal with it then.

OR

2. If you wanted to be more cautious, you can sue Canonical for a declaratory judgement on whether a specific action would be infringement. This would also compel an answer.


BUT *asking* a lawyer to clarify already established text such as their "IP Policy" is barking up the wrong tree. Clarification *almost always* weakens rights. They might do it for goodwill ... but it would be naive to count on it and almost infantile (in a business sense) to demand it. A lawsuit (like 2) is, in practice, the only way to force an answer (i.e. to clarify policy).


Perhaps you aren't used to how the law is used in business. The fact of the matter is that if you are afraid of being sued, you have the wrong idea. If you haven't been sued yet ... it is just a sign that you aren't big enough to worry about. When you are big enough ... you should always expect lawsuits.

Re: Comparing to Fedora / Comparing to Red Hat

[marahmarie]

I like #2.

Also re: "Clarification *almost always* weakens rights." then is Red Hat "weakening rights" by being more explicit and clear than Canonical? Red Hat's solution is far from perfect, but it seems more workable to a pretty outspoken group of people, so I don't see what gets weakened (or put at risk, more precisely) by Canonical adapting the same type of policy.

But while we're at it, I'd love to know.

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

There is "official text" and "clarification of official text outside of the official text". The 2nd is almost never done ... and clarification is only obtained by changing the official text. It is possible that Red Hat was simply more specific/clear when they created their original text. However, if I recall correctly, RH actually rewrote their official text when CentOS (and its predecessors) began. Believe me, Red Hat was vilified at the time and their behavior, IMO, was worse than Canonical's today. [e.g. The last RH iso I used was Red Hat 5.2 (this was in 1999 and before RHEL and Fedora existed). I paid $50 in 1999. At that time their installer was proprietary ... so you couldn't redistribute the ISO! Think of that in today's context.]

If someone actually went to the effort to create an Ubuntu clone via recompiled binaries (and also removed infringing use of trademarks ... and affirmatively asserting that this is "not Ubuntu"), just as when CentOS was created, the text would be clarified. And, frankly, contrary to what Matthew asserts, this would not be terribly difficult (not "easy" but
easier than CentOS").

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

I find it ironic that you bring up proprietary installers.. considering how fast Canonical is moving towards a business model for proprietary oem device images in their build out of snappy. Everything old is new again.

But back in 1999 when the RHL installer was proprietary was Red Hat making any claims similar to "X is made for sharing. Use it, modify it, improve it, share it. Anywhere, any time and with any number of people all over the world. No licence required."

If Canonical was self-consistent and was marketing and socializing Ubuntu the product as a proprietary product.. then this wouldn't really be as big of an issue now. There would be no confusion. But Canonical has and continues to market and socialize Ubuntu the product, as being something okay to modify and redistribute..without seeking a license to do so. The text on http://www.ubuntu.com/about/ is in direct conflict to the IP policy. And that is a huge problem. It's the lack of clarity that is the problem, not the proprietary nature of the IP policy. It's the gap between the promise and the reality that needs to be closed. The Ubunut Promise makes a big deal about the ability to modify and share...without asking for permission to do so. And yet.. the IP policy seems to say its just way easier if you get special permision to do so.


Either "the Ubuntu Promise" text needs to be updated to come into line with the reality of the newer IP policy or the IP policy needs to be redrafted to clarify.

I think most everyone outside the Canonical fenceline would prefer that the IP policy be clarified instead of the Ubuntu promise updated. But for me, I think it would be much more honest for Canonical moving forward if they just stopped trying to upsell the idea that Ubuntu is modifiable and sharable as a valueadd and marketplace differentiation. It's not as true as it use to be considering the intent of the IP policy, and it will be even less true moving forward with snappy oem images using special oem snap packages at image provisioning.

Re: Comparing to Fedora / Comparing to Red Hat

[marahmarie]

Huh. I wrote my reply to the above commenter first, then read yours. You bring up a lot of good points that I can't say I hadn't thought of, but that I hadn't thought to put into so many words, as I wasn't sure how to address the mismatch in IP policy and what's offered to the average end user, but you're right, those are in total disagreement. Which is adding to the confusion and making who can do what (and why they can do so, or why not) a lot more opaque and harder to understand than it ought to be. The whole "it's better to ask permission first" scenario seems to be Canonical's only redress for the fact, which they pretty much openly acknowledge, that they're trying to come off as free to use and share but actually want to charge money force people to strike deals with clear limitations for any substantial redistribution of their OS.

Re: Comparing to Fedora / Comparing to Red Hat

[marahmarie]

Well, that answers my question. Thank you. I'm not going to comment on how hard or easy it is for Mathew to pull it off, as I'm in no position to argue one way or the other, but I do wish him luck and success (and cooperation somewhere down the line from Canonical, or at least the clarification he wants, even if it must come from preemptively suing to get it).

Re: Comparing to Fedora / Comparing to Red Hat

[marahmarie]

And you got this information from where and you are who again? I'm sorry, but the last Michael Hall I heard of acted in movies. That's fine if that's you, I just want to know from what authority you're speaking from.

ETA: it occurs to me just now that what you said does not make any sense. If Canonical misrepresented who the authors were then is it not their job to fix that? Why would it ever be ours?

It is not a completely unfounded concern, either, unless someone in the official capacity to say so says it is. Which is Mathew's entire (and only) point.

If you read through the archives here (or are already familiar with the problem, whichever) you already know the vague wording steps not just on trademark law but also right across the face of copyright law, as well. Trademark law says, for instance, no Ubuntu-branded splash screens. Copyright law says "no part of my work which I declare you cannot use, in whole or in part, without my express permission". Copyright law, even as it applies to Fair Use (discussed fleetingly below) is even more vague than trademark law, so there's a can of worms for you.

My only thought - a loophole, a possible way around the copyright snafu that Canonical's wording represents - is if Fair Use might apply, but as Fair Use is mostly a quote-based law (you can quote a small portion of my work, certainly not a lot and definitely not the whole damn thing) chances are probably not.

And that is just another reason further clarification is needed.

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

> If Canonical misrepresented who the authors were then is it not their job to fix that?

I was referring to somebody else misrepresenting the authors, such as replacing the source code without replacing the changelog, or making significant changes without updating the change log, leaving someone else's name listed as the most recent author.

> It is not a completely unfounded concern, either, unless someone in the official capacity to say so says it is. Which is Mathew's entire (and only) point.

It's unrealistic to demand a statement to illogical concern. Even if this one is answered, it will be followed by some other, even more unreasonable concern.

> My only thought - a loophole, a possible way around the copyright snafu that Canonical's wording represents - is if Fair Use might apply

In Trademark the relevant concept is Nominal Use, which is protected by legal precedent. Changelogs and email addresses certainly represent a nominal use of a trademark.

Re: Comparing to Fedora / Comparing to Red Hat

[mjg59]

> In Trademark the relevant concept is Nominal Use, which is protected by legal precedent. Changelogs and email addresses certainly represent a nominal use of a trademark.

The Canonical IP policy does not grant permission for nominal use of Canonical's trademarks within packages derived from Ubuntu. Since Canonical are in a position to impose additional restrictions on the (non-GPLed) packages they distribute, this is perfectly legal. It'd be easy for Canonical to make it clear which uses of their trademarks are permitted in the same way that Red Hat do, so your continued failure to do so inevitably results in people concluding that this is deliberate.

Re: Comparing to Fedora / Comparing to Red Hat

[(Anonymous)]

What lawyer told you that Canonical's IP policy is causing you to lose the right to nominal use of their trademarks?

> It'd be easy for Canonical to make it clear which uses of their trademarks are permitted in the same way that Red Hat do, so your continued failure to do so inevitably results in people concluding that this is deliberate.

It's easy to say what needs to be done, but it takes more than talk to actually get it done. As I said above, if you want to do the work you know how to spec it and propose it.

Re: Comparing to Fedora / Comparing to Red Hat

[mjg59]

> What lawyer told you that Canonical's IP policy is causing you to lose the right to nominal use of their trademarks?

Oh, I'm not losing it in the general case. But if the IP policy doesn't require me to remove even nominal uses, why will nobody from Canonical say that officially?