The row has blown up over licence fee demands sent out by an
Australian lawyer to Australian companies that have been making use
of the word “Linux” in their business names. The demands ask the
firms to stop using the mark, or to obtain a sub-licence from the
Linux Mark Institute (LMI).
Linus Torvalds is the original author of the Linux operating
system. He holds trade mark registrations "Linux" in many
countries, but gave LMI rights to sub-licence the mark. LMI is a
non-profit organisation that exists "to protect the public
Linux® users of the world from unauthorized and confusing
use of the Linux mark and to issue proper licenses to authorized
users of the Linux mark."
LMI has instructed lawyers to protect the mark; and according to
reports, over 90 warning letters have been sent. This has sparked
accusations that Torvalds was being hypocritical in opposing
software patents while seeking to enforce trade marks. He was also
accused of trying to cash in on the success of the name.
In a posting, defending his position, Linus Torvalds explained
that under trade mark rules the LMI is obliged to take measures to
enforce its trade mark – or risk losing it.
He added:
“not only do I not get a cent of the trade
mark money, but even LMI (who actually administers the mark) has so
far historically always lost money on it. That's not a way to
sustain a trade mark, so they're trying to at least become
self-sufficient, but so far I can tell that [sic] lawyers fees to
'give' that protection that commercial companies want have been
higher than the licence fees. Even pro bono lawyers charge for the
time of their costs and paralegals etc”.
The row may have far-reaching consequences, according to Florian
Mueller, founder of Nosoftwarepatents.com, who was prominent in the
debate over Europe's proposed patent Directive earlier this
year.
Mueller fears that the latest dispute is in danger of giving the
open source community the appearance of being against
anti-intellectual property, of whatever type.
"It's lawless and pointless to indiscriminately oppose
intellectual property rights. They're the foundation of the digital
economy,” he said. “We just have to ensure that they serve their
real purpose of protecting innovators, and that's what software
patents unfortunately don't do in 999 out of 1,000 cases.”
“Software patents are a power play that benefits
anti-competitive forces and productless extortioners, but copyright
and trade marks generally reward those who create and market real
products," he added.
The campaigner is worried that "anti-IP radicalism could
backfire" because it is, he believes, "highly detrimental to the
image of open source on the right wing", and may lead to a backlash
from conservative politicians. This, he fears, could result in
legislation that seriously hurts open source.
