Beachhead - Shoring Up the Seawall

Trademark protection is necessary, if only because people seek to exploit what is unprotected.

Hurricanes often show the fragility of a beachhead town, particularly one whose seawall is not strong or high enough. Sometimes sandbags can save the day—if the weakness of the wall is local, if the strength of the hurricane is not high enough and if you have enough time and help to put the sandbags in place. But nothing beats having a well-designed and implemented seawall long before the storm hits, and often it is best to overbuild, as those “once in a lifetime” storms seem to be happening more and more often.

In 1994, a hurricane hit the Linux community. A man in Boston trademarked the term Linux and started to send out letters to Linux companies saying that he owned the term and would license it out to companies for only one-quarter of their revenue. The fledgling Linux community was shocked, and individual companies started to gather their sandbags (er, ah) lawyers to fight this attack. Linux International stepped in and acted as a channel for hiring the legal firm of Davis and Schroeder of Monterey, California (another beautiful coastal town). Through a long and arduous process costing tens of thousands of dollars and much pro bono (read that as gratis) legal service, LI eventually had the trademark transferred to Linus Torvalds, who has held it ever since.

Linus wants everyone to use the name Linux for any legitimate purpose, and he really wanted it to go into the public domain. However, we found that there were people who wanted to use the name for a business that (although it was legal) was not what Linus wanted his name to be associated with—a porn site.

Linux had come into its own. As long as the word Linux had no value, no one cared about it. But as soon as the word Linux was perceived to be of value, people stepped forward to make what money they could, in both legitimate ways and less legitimate ways. We understand that other trademarks of other free and open-source software projects have seen similar issues, and we share their pain.

If the trademark had been in the public domain, there would have been nothing Linus could have done about the porn site, but because he was the registered owner of the mark, he could demand that the porn site stop using the mark, which they did after only a single, pointed letter from LI's law firm.

Eventually, the law firm convinced Linus that the trademark needed to be “protected” under the US trademark laws. This meant that if people just used the trademark any way they wanted, eventually it would become public domain and all the pornography sites could be “Linuxporn”, and there was nothing he could do about it. Of course, there are other undesirable uses of the name, but this was one of the ones we encountered.

Because Linus considers himself an engineer, and did not want to deal with the day-to-day business of protecting the Linux trademark, he empowered the law firm and an old friend to create a nonprofit entity called Linux Mark Institute to do this protection. LMI then started to sublicense the name to various companies who were using Linux as a trademark.

Although this column is too short to go into all the technical detail of what it means to use Linux as a trademark, or part of a trademark, the term Linux can be used in a fashion of fair use, which requires no licensing, but still should properly attribute the ownership of Linux to Linus Torvalds. I am sure the reader has seen the normal type of attribute at the bottom of some page (perhaps even in this magazine) that says, “The registered trademark Linux(R) is used pursuant to a license from Linus Torvalds, owner of the mark in the US and other countries.”

This is normally used when you just say the word Linux in some type of printed or electronic document, such as the Linux Journal.

But the incorporation of the name Linux into another name is what really needs to be licensed, and LMI's job became to seek out and sublicense the Linux mark to people and companies wishing to use the name.

LMI assembled an astute group of people to administer this trademark, people whose honesty and integrity were without question, and they started to formulate a sublicense that would:

  • Protect the Linux mark.

  • Allow businesses that were making money by using the name to help pay for the costs of administration.

  • Allow LUGs, developers and low-revenue nonprofits to have a license at no charge.

And to make sure that things were on the right path, Linus kept the right to terminate this mechanism if it was not found to be carrying out his wishes.

There were some things that LMI absolutely needed to do to make sure it met the enforcement criteria. And, as often with free software things, the concept of licensing out the trademark for legitimate uses more or less did not mesh with the normal concept in trademark law of protecting the usage from other than the trademark holder “no matter what”. LMI still managed to get through the knot holes to create a proper sublicense.

Just as everything started to move into place, an emergency happened in Australia that forced LMI to become active “before its time”, and the world started to realize that although Linux (the kernel code) was already freely licensed, trademark law required the name to be licensed separately if not used in a fair-use way.

Immediately, there was wailing and gnashing of teeth from people who did not understand trademark law, did not make any use of the mark of Linux other than in fair use, and from people who never even heard of the word Linux before—in short, from everyone except those who were really affected. To be sure, some fine-tuning of the sublicense was needed, which was done, but not a single person who was really affected by the trademark sublicense objected to the premise, because as business people and trademark holders themselves, as members of the small commercial Linux community, they knew that the seawall needed rebuilding.

Today, people who use the term Linux as a proper trademark for their product can get a sublicense at the Linux Mark Institute (www.linuxmark.org). People and groups who make less than $50,000 US per year in revenue pay nothing. Companies starting up who have not made any revenue to date using the Linux mark pay nothing. Only companies who have made more than $50,000 US per year in revenue on products using the Linux mark pay a small percentage of that money to LMI. And, for very large companies making very large amounts of money on the Linux product, there is a cap on how much they pay.

Linux Mark Institute is a true nonprofit. None of the board of directors receives any salary. LMI employs only the bare minimum of staff. All money collected goes toward legal fees to protect the Linux name that otherwise would not be protected. Over time, if activity warrants it, we will reduce the license fees. But today, we feel the fees are fair, necessary and will not hurt anyone wishing to use the mark.

For all of those people who use the name Linux proudly, we ask only that you attribute it correctly, and that if you have any questions about whether you need a license, read the information at the Linux Mark Institute site.

Help us maintain a strong seawall.

Jon “maddog” Hall is the Executive Director of Linux International (www.li.org), a nonprofit association of end users who wish to support and promote the Linux operating system. During his career in commercial computing, which started in 1969, Mr Hall has been a programmer, systems designer, systems administrator, product manager, technical marketing manager and educator. He has worked for such companies as Western Electric Corporation, Aetna Life and Casualty, Bell Laboratories, Digital Equipment Corporation, VA Linux Systems and SGI. He is now an independent consultant in Free and Open Source Software (FOSS) Business and Technical issues.

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