Date: 05 Jan 2001 01:55:16 -0800 From: Ken McGlothlen <mcglk@artlogix.com> To: chris@livecast.com Cc: freebsd-questions@freebsd.org Subject: Re: Please change this Message-ID: <87snmy5nnf.fsf@ralf.artlogix.com> In-Reply-To: Chris Andrews's message of "Thu, 04 Jan 2001 16:02:48 -0800" References: <NEBBKBEHALJPMIKHEBJOCEDPCGAA.chris@Livecast.com>
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Chris Andrews <chris@Livecast.com> writes: | Thanks for your response. I did look at the page prior to sending the email. | Unfortunately, search engines and the internet in general does not | categorize these things - copy is copy. And I have to presume that whoever | "owns" the site controls the copy. | | My other choice was not to send the email to you at all, and we are held to | some strict guidelines as owners of the trademark in terms of working to | contain usage to appropriate usage. | | We "do have a clue" here, but it is a challenging task to have a goal of | clarity in something as cloudy as the Internet. Hi, Chris. First off, as you may have noticed, when you sent email to the questions@freebsd.org address, you reached a mailing list of several hundred volunteers who answer technical questions involving FreeBSD. Probably not what you intended, but I guess you'll have to live with that for the time being. I don't have any official affiliation with FreeBSD or any affiliated organizations; I'm simply an enthusiastic user of said operating system. That said, I should point out that your presumption that "whoever `owns' the site controls the copy" is not true in situations where the site is acting as a "common carrier," as most mailing list archives are classified. Good mailing-list archives do not discriminiate against particular authors or messages, instead mindlessly storing every message that gets posted to a mailing list. Building exceptions into such an archival process would result in confusing gaps and cries of censorship (justifiably) from its users. In fact, you have added to the "problem" you perceive by mentioning Livecast, plus having livecast.com in your email address, because your messages, along with the message I'm writing at this very moment, will also be archived indiscriminately. Search engines will link to it, exacerbating the "problem." Some search engines like Google will also cache the information, resulting in more copies of the original post, plus your posts, plus this one here. In reviewing this email message, it seems as though the user is talking about your product. Use of trademarks in this fashion is called "fair use," and it's completely permitted by law. Otherwise, I couldn't talk about Xerox, IBM, Intel, RCA, or any other company without using some bizarre encoding. Companies that act hyperparanoid about their trademarks tend to be parodied rather viciously (Qwest becomes Qworst, AT&T becomes The DeathStar, and so on). Livecast would just become Livercast or Deadcast or some such, and everybody would know (a) who they're really talking about, and (b) why an encoded term was in effect. Bare minimum, it would just be referred to as L*vecast or Livec*st or Livec@st or Livecost or something like that, and there's little you could do about that, legally. It's a shame that companies such as Livecast have lost their senses of humor in the quest to maximize the Almighty Buck while risking the annoyance of the very community they hope to attract. It's also a shame that companies like Livecast feel that they have to select terms that have been used on the Internet for far longer than they've been incorporated. I first heard the term "livecast" at least eight years ago (in relation to the MBONE), whereas you claim you conceived of the trademark in 1996. (http://www.venturemakers.com/aboutus/founder.html) That alone makes it an uphill battle to defend that trademark. It's difficult not to cynically wonder if you'll trademark another commonly-used-but-not-trademarked-by-anyone term in subsequent years, and then start asking people not to use something like "sed" or "macro" or somesuch. I realize that the current state of the law has you in a difficult position. Part of that difficult position, however, was a choice you made when you selected the trademark. But in this case, the law permits fair use, and furthermore recognizes sites that archive email lists indiscriminately as common carriers. In fact, removing that post on the basis of your request would result in the site losing its status as a common carrier. So it would put the FreeBSD web effort in a difficult legal situation as well. The choice is yours. You can make like difficult for a volunteer organization, sure. No skin off me---remember, I'm not affiliated. But I think the negative PR would be a bad move, corporately, and it certainly wouldn't solve the problem. Besides, I suspect intellectual-property law is going to undergo a huge shift in the next ten years as more and more corporate abuse occurs; eventually, there's going to be a major reaction against the USPTO and other such organizations as end users organize to fight for things like free speech, a sane patent process, and copy control. If you raised a big stink about this, it would certainly help accelerate such a showdown. Either way, good for us (people do love cheering on volunteer organizations in the face of a humorless corporation, especially in the Open Source world), not so good for you (loss of respect in the very customer base you are hoping to attract, doesn't solve the problem, negative news coverage in the industry, and possibly accelerates the erosion of corporate rights in the long run). Best of luck to you. I trust you'll learn to relax in cases like this, and go after people who are actually trying to compete with you. If not, well, I think it's an unwise choice, but of course, your mileage may vary. ---Ken To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-questions" in the body of the message
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