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Larry Rosen, an attorney specializing in intellectual property protection and former general counsel for the Open Source Initiative, told NewsForge, "An open source copyright license can permit you to make any changes you want to certain software, or to make no changes at all. But a trademark license may also be needed before you can apply the original author's trademarks to those changed or original works.
"I don't think that this should be a debate. We merely have to understand that copyright and trademark involve entirely different rights. A license to one of those isn't necessarily a license to the other."
Earlier this year, Mike Connor, a developer with Mozilla, submitted a bug report to Debian that stated that if Debian intend to call its browser Firefox, it would be required to include Firefox graphics as well, or should plan to find a new name for the browser.
Mozilla says its guidelines are clear: the use of the Firefox name is permitted only if accompanied by its logo, icons, and other artwork.
Debian developer and project maintainer Eric Dorland contends, however, that Mozilla's graphics set cannot be released with Etch because "they have a non-free license." He says to do so would be a violation of the Debian Free Software Guidelines (DFSG), which determine the criteria for which software can be used in Debian distributions.
While Debian developers are willing to use the Firefox name in compliance with trademark laws, they feel that any artwork contained in Etch must allow users the freedom to make changes to it, as they can with other free artwork.
Connor says, however, that while he appreciates Debian's point of view, Mozilla's logos and icons provide a visual identity as well as an assurance of quality to the user. He says that Mozilla's stance on protecting its branding elements is no different than that of any other company that wants to ensure a high-quality user experience.
"Stay of execution?"
After a long and circular discussion on Debian's email list, Dorland asked Connor if there was any room for a "stay of execution," since Etch is scheduled to go into deep freeze in a matter of weeks. Connor responded, "It makes much more sense to resolve this before you put another long-lived release into the wild, unless your aim is to delay compliance."
He went on to say that, beyond the issues of logo use, he also had "grave concerns around the nature and quality of some of the changes the patchset contains," and insisted that Mozilla be allowed to review the patches before making a final decision about the use of its trademark. "If we were forced to revoke your permission to use the trademark, freeze state would not matter, you would be required to change all affected packages as soon as possible. Its not a nice thing to do, but we would do it if necessary, and we have done so before."
Despite Dorland's continued pleas, Connor said the only way Mozilla would approve Firefox's inclusion with Etch would be to comply with four conditions: any changes to Mozilla's source code will need to be submitted for review, along with a description of a reason for the change; the release must be based on the CVS tag and/or source tarball, including approved patches; build configurations will also require approval; and the logo and trademark must be used together.
"The ball is in your court now," said Connor, "but you should absolutely not plan to ship without addressing these issues one way or another."
Mozilla says the crux of the issue is a desire to ensure a quality product and a good user experience across all distribution and vendor lines. "We have a long history of working closely with Linux distributors to determine what is and isn't an appropriate modification to Firefox. This is how brands and trademarks are being managed in the world today and we're trying to find a middle ground with Debian," says Chris Beard, Mozilla's head of marketing and product strategy.
"We have policies in place that are reasonably open but at the same time protect the meaning of our marks. They are as open as possible to support the community but as strict as necessary to protect consumers and the reputation of our products.
"I think we're at a point, since we can't reach an agreement, that Debian can ship a version of Firefox and can avail themselves of the project, but release it under their own name."
Nat Friedman, vice president of desktop engineering for Novell, says he understands Mozilla's point of view. "The Mozilla Foundation has worked hard to build Firefox into a brand [that] means security, simplicity, performance. Their desire to protect that brand is perfectly normal and perfectly reasonable and Novell works closely with the Mozilla Foundation in support of this objective."
Debian's Dorland says the whole process has been "annoyingly bureaucratic and is completely unprecedented in the Free Software community." He agrees that renaming the browser for Etch's release is inevitable "since there does not appear to be any way we can resolve our differences...Unless something changes in the very short term, it will be called Iceweasel. It seemed to be by far the most popular, avoids any confusion with the trademark, and already has a history of being the 'alternative' name for it. "
If any of this sounds faintly familiar, it may be because a similar issue arose prior to the last Debian version release, Sarge, and dates as far back as 2004. At that time, the dispute centered around the use of trademarks for Mozilla's Thunderbird. "Eventually an agreement was struck whereby we could use the name without the logo and it was up to the Mozilla Foundation to keep an eye on the Debian packages to make sure they met the level of quality they expected," said Dorland. "Now the trademark has been moved to the Mozilla Corp. and they feel that agreement isn't strong enough."
Beard says the Mozilla Corp. is just a legal framework that helps the Mozilla Foundation function and manage its resources more effectively and that it has no bearing on the issue at hand. "This was not motivated by us becoming a corporation," he says. "In fact, the Foundation holds all the intellectual property.
"There have been misunderstandings all around because this is a complex issue ... but at the end of the day, we're motivated by the same interests: doing the right thing for public benefit."