
Think Drupal was FLOSS and non-profit? Think again. - jacquesm
http://seclists.org/fulldisclosure/2009/Sep/0003.html
======
cousin_it
Here's the policy with non-screwed-up formatting:
<http://drupal.com/trademark> . Here's the bit that made me go WTF:

    
    
        Examples of "fostering the Drupal software":
    
        - a course entitled "How to use Drupal in your business"
          organized by a local non-profit organization;
        - an open access monthly journal called "Drupal Coding magazine";
        - an open source Apache plugin "JIT Compiler for Drupal"...
    
        Examples which do not qualify as "fostering the Drupal software":
    
        - creating a Drupal fork "ImprovedDrupal";
        - publishing a website "drupalhallofshame.com" with
          pictures of infamous Drupal contributors.
    

Here's another fun quote:

    
    
        "Exclusively" means that any direct profits generated 
        by using the Drupal trademark, must also be exclusively
        used to foster the Drupal software.
    

And this part is just hilariously delusional:

    
    
        The use of the Drupal trademark as part of the name of 
        a function, procedure, variable name or similar source
        code component is also considered "nominative fair use"
        for which no license is required.
    
        Examples:
    
        - a procedure called drupal_add_link();
        - a constant called DRUPAL_AUTHENTICATED_RID;
        - a variable named $drupal_tag;
        - a set of source code files called drupal.module and drupal.js.

~~~
jacquesm
Here is my response to this nonsense:

<http://freedrupal5hosting.com/content/welcome>

That's 1500 drupal sites less as of the 1st of Jan. 2010.

I don't really want to inconvenience the people that have built their site
using our service but as of yesterday no more new signups and end of the year
it's curtains.

There is no way in hell that we can even begin to comply with this trademark
policy without destroying what we've built up to date, so we might as well
close shop.

For me the sticking point is not so much that these restrictions exist but the
fact that they are enacted retro-actively.

We've done our bit to promote drupal, helped solve some issues, spent time and
money on developing a hosting solution around drupal that is 100% automated
but I'm more than willing to toss in the towel at this point.

~~~
mechanical_fish
_There is no way in hell that we can even begin to comply with this trademark
policy without destroying what we've built up to date._

Let's clarify. Have you been in communication with the trademark holder? Have
you asked the trademark holder for permission to use the trademark, and been
turned down? What exactly has the trademark holder asked you to do that would
"destroy what you have built up to date"?

It seems to me that the policy gives you a long list of cases for which you
don't have to ask. And, in the remaining cases, all it says is that... you
have to ask. So, have you asked?

Moreover, from a quick glance at your site it is not obvious to me that you
are violating the policy even now. And, if you are, perhaps it can be fixed
with a very slight branding change: Invent a company name ("JacquesCorp"),
change the domain to "freedrupal5hostingbyjacquescorp.com", and suddenly you
get an automatic license under Section A.2:

 _A. You receive an automatic license when:

The Drupal trademark is used in a domain name, title of website, title of a
seminar, title of a course or title of a software package that... also
mentions your trademark (or your trade name, name of your company, name of
your organization, or name of your association)._

[DISCLAIMER: I'm an employee of a company, Acquia, founded by Drupal's
founder, Dries Buytaert. However, I do not speak for the company or the Drupal
Association, and my half-baked opinions are entirely my own.]

~~~
jacquesm
No, I did not ask, I can read.

I have simply read the requirements and have decided that we can not comply in
any way and that there are terms in there that would make me stop using drupal
anyway (or wish that I had never started using it). The word 'boycott' is
probably applicable here.

You've managed to turn a supporter first into a cautious user because of
technical issues with your offerings and now into a detractor because of your
ridiculous trademark policy. Think of it as the beam (not straw) that broke
the camels back.

When we started this section of our business this licensing policy did not
even exist, we announced our existence on 'drupal.org' and received the
impression that such use of the name drupal the way we do it is ok.

If there would be any automatic grandfathering for sites that existed prior to
this nonsensical trademark policy being dreamed up that would change the
situation a little bit, but it would not change my opinion much because of the
overall absolutely ridiculous statements made in the policy the way it is
worded right now.

Even if I could resolve the issue by changing our domain name, the name of the
service or anything like that I would point blank refuse to do so because I
think the policy as displayed is comparable to the use of submarine patents.

There are plenty of people that have created a living around the drupal eco
system, they already contribute in many ways by raising awareness, providing
hosting, writing software etc.

That should be enough payment for the use of the trademark in my opinion, no
need to get your hands in everybody's pockets.

It's a total loss strategy.

Imagine Linus Torvalds, the holder of the Linux trademark creating a policy
comparable with this one.

The world of free and open source software has just gotten poorer.

~~~
cousin_it
I'm currently doing research on the text. Here's the Linux policy:
<http://www.linuxmark.org/faq.php> . It's quite a bit more permissive: it
would have allowed your site to exist without applying for a license. On the
other hand, if you'd started _advertising_ your project under the _trademark_
"Free Linux Hosting", you'd have to apply for a Linux license.

~~~
jacquesm
I wonder how that license dealt with use of the term prior to the existence of
the license.

------
Steve0
Drupal has become a known brand over the years, seems no more than prudent to
protect it. The software is GPL, so your rights are safe. You can take the
code and fork the hell out of it. You just can't call it "Steve0's Improved
Drupal".

I don't get it, people are given code for free, to use modify and learn from.
Still they complain that not everyone can use the 'brandname' for whatever use
they see fit.

~~~
chaosmachine
It's fine to protect the Drupal trademark, but it should be done for the right
reasons, and in the right way. Linux gets it right:

<http://www.linuxmark.org/faq.php>

~~~
Dries
Linux is actually much more aggressive about protecting its trademark. Random
example:
[http://linux.slashdot.org/article.pl?sid=05/08/15/2149225...](http://linux.slashdot.org/article.pl?sid=05/08/15/2149225&tid=163)

"Australian companies providing Linux products and services may soon have to
pay up to $A5000 a year to licence the operating system name (warning:
Registration Required), if the patents agency IP Australia grants a trademark
application it is reviewing. About 90 companies with products, services or
websites containing the word "Linux" recently received letters of demand from
Perth lawyer Jeremy Malcolm. Acting for user group Linux Australia Inc, he
asks recipients to sign statements saying their use of the word is subject to
the group's licence agreement, which has fees of $A200 to $A5000 under a
successful trademark application."

------
sfk
Unfortunately, this post is written like a troll:

"All I need is this euro putz ..."

"For your convenience of course, it's governed by the laws and regulations of
Belgium."

~~~
GiraffeNecktie
As they say back home "I'm just gobsmacked". This is absolutely the most
offensive piece of misinformed trash I've ever encountered on HN. Nothing more
than a nasty personal attack on Dries. Whether or not you like Drupal is
beside the point. Dries is one of those thoughtful, modest and intelligent
contributors to the open source community. The trademark policy in question
was carefully vetted with the community and with legal experts. This vile
little attack is quite uncalled for. Excuse me while I go wash my hands. I
feel unclean.

------
iuguy
Er... It is FLOSS. The name isn't. You don't have to use it, you don't have to
call it by name. You can call it 'Dave' and it's no different.

~~~
jacquesm
Right. What if your project has been in existence for over a year and a half
and you get this slightly game changing policy dumped on you ?

~~~
Dries
Apply for a license. As said, the goal of the policy is to create a fair-level
playing ground for all people and organizations that are part of the Drupal
community. If your use of the Drupal name is fair for others, if it does not
suggest an official link with the Drupal project, and if you adhere to the
Rules of Use, there shouldn't be a problem. In fact, the trademark policy
helps protect your investment in Drupal because it avoids that others can use
the name in ways that are unfair to you or your Drupal business.

The lack of a Drupal trademark policy doesn't mean the trademark was
unprotected -- it was protected by trademark law. By creating a trademark
policy and a licensing procedure, we've provided us options we did not have
before. Things have become more permissive.

------
ZeroGravitas
I've seen this contribute to severely damaging a GPL'd web application
community in a slightly different sphere. They sent threatening letters to
anyone hosting, supporting, reselling etc. the software claiming you couldn't
use their name. They sold licences to allow you to do so.

I'm fairly certain it wasn't even legal since the whole point of trademarks is
to prevent confusion. Claiming to repair Volkswagens doesn't mean you're
claiming to be Volkswagen.

I can't tell if this is making exactly the same mistake, certainly the
examples given elsewhere in this thread by _cousin_it_ seem to be
conspicuously missing any activity that makes money, even a training course,
using the name Drupal. I see an update to that post which includes language
suggesting you can make money from Drupal, but unless you then invest all that
money back into Drupal, you can't use the name. Very short sighted.

~~~
Dries
Please read the policy more carefully because your comment incorrect. If you
make money with Drupal, you can still use the name 'Drupal'. It just means
that you might not qualify for the automatic license grant procedure, and that
you need to apply for a license so we can provide guidance as what is
considered to be fair use of the Drupal name.

~~~
ZeroGravitas
I mispoke when I said "can't use the name". I meant to say "Drupal _claim_
that you can't use the name without applying for a revocable licence and
paying a fee".

This still isn't ideal if it is being implied that the licence and fee is
necessary when (in many cases) legally it isn't required. I believe under UK
law falsely accusing people of trademark infringement can open you up to
lawsuits in return.

------
zokier
Sounds like Firefox/Iceweasel -debate all over again. It's still FLOSS, even
if you don't have free rights to the brands which the software is distributed
under.

Just to repeat: trademarks do _not_ conflict with software freedom.

------
Dries
This sounds like some good old FUD. Unfortunately, attacking me, or my family,
doesn't make for a constructive argument. Last time I checked, my personal
blog was ... my personal blog. I'm not asking you to be a reader of my blog.

Anyway, I've owned the Drupal trademark for a long time. The lack of a Drupal
trademark policy doesn't mean the trademark was unprotected -- it was
protected by trademark law. The lack of a Drupal trademark policy meant that
it was unclear what was allowed and what wasn't allowed, and frankly, that you
were bound by trademark law. By creating a trademark policy and a licensing
procedure, we've provided us options we did not have before. Things have
become more permissive.

The goal of our new policy is to provide guidance and clarity on how the
Drupal trademark is allowed to be used. The goal of the policy is to create a
fair-level playing ground for all people and organizations that are part of
the Drupal community.

The entire process of developing the policy was a community effort, with help
from a variety of legal experts. We worked on the policy over the course of
almost two years. A draft version of the policy was posted at
<http://groups.drupal.org/node/19068>, and through the community feedback that
developed there, we ironed out many of the wrinkles of my original draft.
Larry Garfield, the Drupal Association's current legal representative has
provided feedback, and both my own attorney (DLA Piper) and additional
attorneys from the Software Freedom Law Center and the Drupal Association were
part of the policy's development. To help validate our work, we reviewed other
similar policies from sister projects to make sure that we were in-line with
the current legal trends in open-source development.

~~~
jacquesm
Hi Dries,

The poster of the article here.

You probably don't remember me but a while ago there was an extortion attempt
by the holder of drupal.se, I offered to buy the domain and donate it to you.

So much for my stance on whether I think you are the 'rightful owner' of
drupal.org and/or the drupal trademark.

I agree with you on the slurs in the article posted, but that should probably
be taken in light of the heat of the moment.

That said, I think the policy that you have put in place is - for want of
better terms - less than elegant.

It presumes a say in the income streams of companies clustered around the
drupal brand, it presumes that it is ok to dump this on us one fine morning in
August, without consultation or consideration.

It's a bit like the mob movies, one day some guy walks in to your shop and
explains that you have a new partner.

He'll tell you how to allocate your funds and what your profit margin can be.
In return for not having something bad happen to your company. And all that
because you share your Italian ancestry in your name.

Sure, you started drupal. And sure, you are by far the single largest
contributor to its success. But overall the other people that have been
contributing to drupal hold a much larger share in the total than you.

First thing I knew about this whole thing was when I read about it on the link
posted here.

I read the trademark policy (blue on a bluegray background, you owe me a new
pair of eyes) in its entirety and my conclusion was very simple: You've lost
it.

I don't care which big name companies and advisors have had a hand in crafting
this, I refuse to accept these terms.

There was - as far as I know - never a single mailing to the drupal community
in its entirety about this policy, which would have been an excellent way of
telling people that something important that might affect them is happening.
That would have gone a long long way towards getting people involved.

By foregoing that opportunity you will now have to live with having that
discussion 'after the fact'. And a lot more public. And with people that are
upset.

In the link you present above less than 20 people are involved out of a
community that numbers probably in the 10's of thousands. That alone should
make you wonder if you had a broad enough exposure for the process. Shades of
the hitchhikers guide planning council there.

A one-sided automatic license may be possible according to the laws in
Belgium, I'm no expert on Belgian law. But I do know that usually it is not
sufficient to post a license agreement somewhere on a website and to expect
parties to be bound by it. Especially parties that have been active for a long
long time using the word 'drupal' in their domain name. Even if they did not
have an agreement in place before.

After all, if according to you a thread on drupal.org is sufficient notice
then by extension you should have known about our existence.

So, now we are at a stalemate. I refuse to accept your terms to licensing the
use of the word drupal under your current proposal.

And you think that I should get a license.

I don't think it should be your right to muzzle critics about drupal by saying
which domain names they can register and which they can not. And I'm not even
a critic of drupal, just of this policy.

Criticism is good for you.

As long as such a domain is used to vent criticism of the product and not in
any way used to extort then that party is in the clear.

I don't think it should be your right to - after years of being aware that
companies are creating entities affiliated with the drupal name - suddenly
start telling those people how they can or can not run their businesses.

Under those conditions I wish you best of luck with your CMS, and I hope that
in time you will come to the conclusion that this policy the way it is worded
right now is over the top. And that you will amend it, or at least strip out
the more obvious over the top bits.

I'm not sure who advised you on that part, but you could have a look at the
lockheedsucks.com case. It is enlightening.

I guarantee you that drupalsucks.com is not going to be used to either extort
you and / or your company.

best regards,

    
    
        Jacques Mattheij

------
blasdel
This is way stupider than cases like CentOS vs. Prominent North American Linux
Vendor

Here what will happen is that end-users will just have no idea that their
whitebox hosted site runs on Drupal internally. Yes, you enjoin asshats from
promoting themselves as you, but it's still a net negative.

------
WorldFallz
Get over yourself. Dries invented drupal, Dries named Drupal, Dries owns the
trademark for Drupal and always has. Dries is also free to do with his
trademark whatever he wishes.

If you chose to create a project/business named after someone else's trademark
that's on you and your extremely poor judgment.

The personal attack against him and his FAMILY is more than "poor packaging"--
it's deplorable. Being 'upset' is not an excuse for insulting someone or their
FAMILY. WTF is going on with this world that this is even remotely considered
acceptable?

------
billpg
I'm not seeing the problem here. There seems to be all sorts of allowed uses
and as far as I can tell, the only restriction is that you can't claim to be
Drupal, just have to identify yourself as a supplier of Drupal.

Please enlighten me.

~~~
cousin_it
As far as I can see, registering the domain drupalsucks.com isn't "claiming to
be Drupal", yet it's prohibited by the policy.

~~~
billpg
(I'm not a lawyer, this is not legal advice, blah blah blah.)

Absent any agreement with X, is "Xsucks.com" a trademark violation? I don't
know.

If it isn't, then no worries. If its not a trademark violation then X have no
hold over you.

If it is, then what is the complaint against X? That they they are not helping
people attack them by witholding permission to use thier trademark?

Say I owned the trademark "billpg" and someone was asking my permission to
register "billpgIsAPatheticVirgin.com". Is it morally wrong of me to tell that
person to go do something unpleasant?

~~~
mechanical_fish
_Absent any agreement with X, is "Xsucks.com" a trademark violation? I don't
know._

I'm not sure anybody knows, and I'm particularly unsure that anybody can know
in advance. That's why this particular legal agreement doesn't concede the
point up front.

The question of whether "billpgIsAPatheticVirgin.com" infringes on the
"billpg" trademark involves questions like: Are customers being confused?
These are not questions that you can answer in the abstract. If I merely
register the domain but it doesn't get indexed by Google and I never show it
to anyone, the answer is probably "no". If I put up a site at the domain that
looks exactly like the official "billpg" site and then drive traffic to it,
the answer moves towards "yes". If I deploy enough SEO tricks to drive
billpgIsAPatheticVirgin.com to the top of a Google search page for "billpg",
the answer is even more likely to be "yes".

It's got to be hashed out in court, if it comes to that.

~~~
cousin_it
We (me and jacquesm) just made this: <http://drupaltrademarkpolicysucks.com/>
. Let's see how things develop.

------
mdh
The preamble says that this policy was created in response to "the questions
received by Dries Buytaert from various persons and companies". That in itself
makes it sound like most people have been playing nice and have asked for
clarification before launching a product that might infringe on the Drupal
trademark.

Have there been any specific cases of an individual or company willfully
infringing on the trademark?

------
chaosmachine
I can't see this policy helping Drupal at all. If Dries is actually planning
to enforce this, I suspect there will be a lot of fallout in the community.

------
erlanger
I've been involved with the Drupal community for the past few years, and I
just don't see the problem here. Were this to do with a restriction on using
the software, that would be one thing, but the vast majority of Drupal users
will not be affected by this.

It _does_ sound like an attempt to keep away negative press on Drupal (note
the negative domain names that are proposed as examples in violation) which
doesn't do much for my confidence, but the project continues to make
significant strides as they work towards the 7.0 release.

I can't help but to think that this has some strange relationship with Acquia,
Dries Buytaert's year-old business centered on the software.

------
_ck_
This is nothing new. WordPress is trademarked too, Matt is just more laid back
about it, up to a point:

<http://wordpress.org/about/domains/>

[http://andywibbels.com/2006/10/wordpress-is-a-registered-
tra...](http://andywibbels.com/2006/10/wordpress-is-a-registered-trademark-by-
automattic-inc/)

