I happened upon some info on the trademark of the Drupal name and must admit, I find it confusing. So, as I understand it, the name Drupal is trademarked by Dries B, fine. So where does that leave the software itself? If we refer to the Drupal distribution, are we using the trademark? It might sound basic, but there is a distinction between the two because the Drupal software distribution is subject to the GPL and we should be able to refer to it freely in principle, however the wording of the Trademark conditions suggests that even by referring to the name Drupal we somehow gain a nominative fair use license, or are required to seek a license(if a commercial operation) potentially at a cost. But don't I already have the GPL license, does this not cover the name Drupal? Whilst the objective of protecting the name is obvious it is unclear as to whether the terms of the trademark conflict with the spirit of the GPL, in my opinion.
I have read the trademark wording and found it to be ambiguous in my humble opinion, if a developer advertises his services as a drupaler, what is the position? Which license applies if a developer mentions Drupal on their website (not in a brand name, and not in the domain name, just as a service) what are we required to do in order to make sure we can refer to the services we provide without infringing the Trademark. Is having two licenses for the same thing not likely to lead to confusion. Is Drupal really completely free?
I would be grateful for your points of view, as I think, of course most of us want to continue to refer to and use the software and to provide services to clients using it, but we have to ensure also that our insurance company is happy too!
Regards,
Mack
note: please refer to the exact terms of the legal jargon if you are interested as my interpretation above may be completely askew with the actual meaning, as legal blurb tends to be open to interpretation in my opinion. Hence the question.
Comments
http://en.wikipedia.org/wiki/
http://en.wikipedia.org/wiki/GNU_General_Public_License#Linking_and_deri...
I would believe that the article is weighted toward more of a U.S. legal framework, but the general arguments focus on the question of what is considered a derivative work.
Just because the caretakers of Drupal take an unrestrictive position of the GPL does not rule out future court cases with other GPL works changing that position.
I recall how France handled court cases with Apple regarding DRM and copyrights.
Further down below, the section "The GPL in court" notes outcomes in various countries. At first glance, most of the cases seem to be decided on the form of distribution, so the summation doesn't provide much info on the what constitutes a derived work.
In practice, I've seen dual licenses by big companies (Nokia - QT): GNU and commercial license being available, so big companies are aware of the legal ambiguities.
Thanks for that, but I think
Thanks for that, but I think your response belongs in another section, I didn't mention derivative works above, I think you maybe related it to another question. But helpful nonetheless.
Sorry about that. It was for
Sorry about that. It was for the recent comment at: http://groups.drupal.org/node/77248#comment-430164
But I got the tabs and subjects mixed up when replying and reading the body. As for your question, I think it makes sense to just use another name, like Mercury/Pantheon/Pressflow if you're wanting to make a different distribution, in which case you would have your own trademark but would be bound under GPL, depending on what you do. It would be the same for a theme or module.
You brought up an interesting point though, as the trademark/license owner have two avenues in regards to legal recourse, but in general GPL terms would take precedence for the distribution of code, and trademarks would tend to fall under marketing practices, i.e., use of the trademark name drupal.
Shouldn't the drupal license
Shouldn't the drupal license that is distributed with the code be amended to include the terms of the trademark. I refer to my post here http://groups.drupal.org/node/132694. By introducing the trademark to the Drupal distribution, isn't it now a gaping omission to not have the terms of the trademark included with the distribution of the same name. In my opinion, the association has effectively amended the GPL by adding the terms of the trademark for the same name. And so don't we now have a situation where the president of a not-for-profit association has an economic interest in licensing the trademark to those who wish to use it commercially?
For the sake of transparency, I believe people downloading the Drupal Open Source software should have a copy of the trademark license included and should be informed that the name the association uses for its software is not owned by the association, effectively creating a two-tier license, one which refers to the software and another which refers to the name of the software.
Nominative use
I believe the jargon term is "nominative use." That is, using a trademark on a thing to refer to that thing is not a violation of the trademark. We can freely discuss the software known as Drupal on this board, as well as the beverage known as Coca-Cola, without infringing either trademark or even requiring a license since identifying the specific product in question clearly is precisely the point of trademarks.
The Drupal TM policy goes a step further and says that various uses that are supportive of the Drupal project get an automatic license, most of which are extensions of the nominative use concept.
Similarly, you absolutely can say that you know Drupal or work with Drupal or have built sites with Drupal or whatever without running afoul of trademark law, just as you can ask for a Coke at a restaurant without violating trademark law.
The Association has not amended the GPL, as the GPL does not cover trademark law in the first place. Additionally, the Association has no authority over the Drupal trademark in order to amend the GPL in the first place.
As a counter-point, the PHP License is a very permissive license, but its one restriction is that you cannot use the name "PHP" in a product name. That restriction is incompatible with the GPL. Shipping both the Drupal TM policy (as defined exclusively by Dries, not by the Association) and the GPL (as defined by the FSF, not the Association) would be much closer to "amending the GPL" than the current situation, which amends nothing.
The situation you are concerned about does not, actually, exist. :-) The law is not that crazy. (IANAL, TINLA and so forth.)
In my opinion, when you
In my opinion, when you distribute a product of a certain name, and that product has trademark terms attached to it, it is normal practice to make the recipients aware of those terms within the documentation that goes with the product. Remember we are referring to the same thing here i.e. Drupal and my point was that although you might seek to separate the two, i.e. the software and the trademark, in practice this is difficult to do. Although you argue that the GPL and the trademark are completely separate, this is a very black and white view, and most would accept that the law is rarely black and white.
For example, if someone downloads Drupal and creates a website called "My Drupal Website" they are "automatically" subject to some sort of license, whether nominative or not. My point was that they should receive a copy of the terms to which they are bound before they download the software, and that those terms should be stated on the drupal.org site not another website.
Its widely accepted that the community contributes to Drupal in many ways, whether directly by writing code/modules/themes or indirectly by buying Drupal books, promoting the use of the software or by simply using the software and creating a demand for it. These all contribute to the value of the trademark, which in my opinion should be owned and controlled by the association.
which in my opinion should be
+1... I agree with this.
No offenses intended, but having worked with multiple (open-source) CMSes (DNN, WP, Joomla etc.), I haven't seen another instance where the product name is a trademark of an individual. Moreover, as mcd said, the community has really done substantial work to get Drupal to what it is today, so maybe the trademark should be owned by something that represents the community (aka the Association).
--
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+1 for Drupal Association owning Trademark
+1 for this. I have been proposing this for a very long time. Drupal what it is today is because of efforts of lots and lots of people all over the world. Drupal Association also gets lots of membership and event sponsorship fees.
Would be good if Drupal Trademark is owned by Drupal Association. Also Drupal Association also needs to ensure that they make it level playing field for anyone/everyone and any request to do pro-bono work and its benefits should be announced well ahead of time. Things get manipulated too often for vested interests if there are not set rules.