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

[(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).