Message-ID: <20001215192335.20019.qmail@web5203.mail.yahoo.com>
Date: Fri, 15 Dec 2000 11:23:35 -0800 (PST)
From: Rob Landley <telomerase@yahoo.com>
Subject: Re: Is there a Linux trademark issue with sun? 
To: "Jon 'maddog' Hall, Executive Director, Linux International" 
	<maddog@valinux.com>
Cc: maddog@valinux.com, linux-kernel@vger.kernel.org, torvalds@transmeta.com
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Sender: linux-kernel-owner@vger.kernel.org

--- "Jon 'maddog' Hall, Executive Director, Linux
International" <maddog@valinux.com> wrote:
> [Warning: Highly controversial topic ahead. 
> Messenger does not want to be shot]

Aw come on, it's traditional. :)

> This does bring up an interesting situation.
> 
> The Linux community keeps saying that "Linux is a
> re-implementation of Unix."
> 
> This gets X/Open all pissed off at us, because Linux

Understood.  Linux is NOT Unix.  (Just as Gnu's Not
Unix, either. :)  We do go to certain lengths so as
not to violate their trademark, and when we slip up we
acknowledge it, back off, and clarify.

This is what SUN needs to do.  I think LI or somebody
needs to send them a letter informing them that Linux
is, in point of fact, a trademark, and that they can't
throw it around like a generic term or it will go the
way of "asprin".

The rules for using that trademark were at least
partly defined almost a year ago.  The following post
was picked up and duplicated at dozens of locations
(check google):

http://boudicca.tux.org/hypermail/linux-kernel/2000week04/0654.html

If Sun's going to start calling Solaris Linux, then I
think we need to have somebody official send them a
letter asking them not to, or at the VERY least
acknowledging the trademark.

> Yet there is no real definition for "Linux".

A definite point.  However, one obvious definition is
something that uses the Linux kernel.  You can have a
Linux-workalike that is not, in point of fact, Linux. 
(Just as you can have a generic version of
acetominaphen that is not, in point of fact, Tylenol. 
This sort of distinction is what a trademark is FOR.)

> Some people (the FSF for instance) say that Linux is
> just the kernel, but
> there are different kernels, with different patches.

And there are many variants of "cheerios" (honey nut,
frosted, etc).  And there are many cheerio-like
toasted oatmeal loop thingy cereals on the market. 
But they have to have their own name, they can't
infringe on somebody else's trademark.

> There was even a Microkernel version of Linux called
> "MKLinux".

Good point.  But it was fundamentally a port of the
Linux kernel to a new environment.  It started from
the Linux kernel (didn't start as a seperate project),
and it ended up containing huge quantities of the
Linux kernel.  Moreover, they had Linus's fairly
explicit permission to use the name anyway, which
glosses over a lot of sins. :)  (Not to mention this
was back before we particularly cared about trademark
issues, but that's not a good legal argument, is it?)

> Others say that Linux is the whole distribution, but
> there are lots of 
> distributions, all different (Red Hat, SuSE, etc.)
> There are different
> placements of files in the file tree.

True.  But there we go back to Linus's january post,
which DID cover using the name "Linux" for larger
projects (like Red Hat Inc.)  Intent matters.  Sun's
intent is clearly to take an existing system and jump
on the Linux bandwagon, and confuse people as to what
is Linux and what isn't.

There's a lot of Linux-like systems out there, and yes
most of them predate Linux in some way.  Forget the
proprietary stuff for a moment, look at BSD.  BSD
isn't Linux.  Linux isn't BSD either.  They're
functionally equivalent in most respects, but neither
project is attempting to take credit for the work of
the other.

Sun is free to put out a version of Linux.  But to
call Solaris Linux is, in my opinion, going over the
edge here and diluting the trademark.

> I know from conversations with Linus that he
> anticipates having (perhaps)
> radically different kernels on top of "BIG IRON"
> machines, where the kernels
> (and the distributions) come from the "BIG IRON"
> makers.

Sure.  But they diverge from the same code base.

Look at it this way: can the linux-kernel mailing list
community take any credit/blame for what goes on in
those "Big Iron" kernels?  Yes, we can.  We're not
ENTIRELY responsible for them (any more than we're
responsible for the patched kernels Red Hat puts out),
but they are in large part based on/derived from the
work done here.  Especially the work of Linus
torvalds, Top Banana of this community and personal
owner of the Linux trademark.

Can we or Linus take credit or blame for Solaris?  No.
 It's not us.  We didn't do any of it, we didn't
contribute to it or prevent anything from being added
to it, we didn't even advise it's development.  It was
and is a totally seperate project that has been
attempting to converge with a more succesful project,
live in its shadow, and take credit from it.

This is 100% what trademarks are FOR.

> The licensing of the Linux trademark has basically
> allowed someone to use
> the term "Linux" in their own trademark, but has
> done nothing to prevent
> someone from comparing their accumulation of code
> with "Linux", and nothing
> to define what Linux actually is.

Comparing with Linux, no.  Saying Solaris is an
implementation of Linux, yes.

The fact we haven't done this YET is why we need to
NOW.  If you don't police a trademark, you lose it. 
We haven't had this kind of infringement before, but
we do now.  We need a definition of bounaries.

Solaris is NOT Linux, any more than Linux is Unix, or
an edition of a student newspaper is a copy of The New
York Times.  Solaris did not recieve contributions
from trademark holder Linus Torvalds (that I'm aware
of) or the Linux community via this mailing list.

> If it is true that "all Linux applications work on
> top of Solaris", what standard prevents them from
> calling Solaris just another implementation of
> Linux?  And should it?

First off, we don't actually know that they do (what
testing has been done, how about hardware support and
drivers), but that whole topic is a red herring.

Workalike isn't the same.  Tylenol vs generic drugs
with the same chemical.  A trademark says we did it
and we feel we can take credit for it, and even if
somebody else has something functionally similar our
name stands behind and distinguishes what WE did.  We
take the blame if it goes wrong, we get the bug
reports, we stand behind it.

If we said Linux was actually Solaris, Sun would be
all over us with Lawyers.  They'd have to protect
their trademark.  If Red Hat called its next release
of Linux (Gnu/linux,
gnu/xfree86/helixcode/redhat/WithExtraEthernetDriversFromDonaldBecker'sWebsite/linux)
"Red Hat Solaris", they'd get sued.

> From an ISV perspective, the more distributions of
> software that run their products binary compatible,
> the better off we are against Microsoft.  If

Binary compatable is great.  Remember, Linux uses
Posix (although we don't SAY posix much because that's
another trademark and nobody jumps through the hoops
to re-test each new conbination of kernel version X
with utility set Y).  When we finally ship an LSB,
Solaris can say it's LSB compliant to its heart's
content.  (Assuming they pass the LSB people's tests
and hence get permission to use that trademark.)

But I really do think calling Solaris Linux is
intentionally confusing, and McNeally knows it.

> Linux does not handle the very high-end machines
> (yet), then why not let those
> applications run on Solaris?

I'm all for it.  But as you just said, Linux doesn't
run there.  Solaris does.  Linux is not Solaris.

> If people want to pay for Solaris, take the
> binary-only distribution from Sun and run it on that
> large iron, why not?

It's not a technical thing, it's the head of a
for-profit corporation intentionally attacking and
diluting the Linux trademark in order to promote his
own (seperate) product/project.

Either we abandon the trademark, or we ask him to
stop.

> On the other hand, I think we need some type of
> definition to what is called "Linux".

Is it powered by something derived from the Linux
kernel?  That's the de facto standard definition.

> Perhaps this is where the Linux Standard
> Base might be appropriate.

For a GNU/Linux system, sure.  But GNU/Hurd isn't
Linux, is it?  (The FSF seems to be clear about this,
pedantically so at times.  Why can't we simply send a
"please stop doing this" letter to a guy who really
should know better?)

Also, remember that 90% of the law is perception. 
(How many shrinkwrap licenses have actually been
enforced in court so far?)  Sun's lawyers will
probably reign McNealy in if we just bring up the
issue.  We're not talking about a lawsuit here, we're
talking about politely asking somebody else to respect
a trademark.

If we DON'T do it, the trademark becomes less of a
defense against NT's nominative posix compliance
turning into "Microsoft Linux" with the NT kernel.

> Regards,
> 
> md

Rob

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