For the uninitiated,
FSF = Free Software Foundation
CC = Creative Commons
That out of the way, let’s get to the point: The Free Software Foundation’s latest ridiculous hit piece on Microsoft (after the break) not only uses a license considered a “cardinal sin” (as stated by Matt Asay) amongst free open source software proponents, they actually render their own licensing null and void by blanketing IP which they don’t actually own. Let’s take a look.
The important part, circled in mspaint-esque red, can be found at the bottom of the campaign’s page. Basically, their Creative Commons license requires attribution, denies derivative works (the “cardinal sin”), and, quite ironically, puts no limits on commercial reproduction. I’ve saved a copy of the page to commercially reprint for the sake of covering my PDC bills since they apparently don’t care, but that’s beside the point. The point is that they applied a Creative Commons license to the entire page, which of course spans all of the elements used within the page. This also spans the header image, which violates Microsoft’s trademark by reproducing the new Windows logo with the primary four colors intact, thereby qualifying as a gross breach of Microsoft’s trademark. Because the FSF did not receive permission to use the Windows logo and because they did not exempt the trademark from the license, they’re now left with a license which covers items in violation… which renders the Creative Commons license spanning their entire page (and every other page mentioning that license with that header) null and void. This, of course, also means that my derivative works are perfectly allowed. Score one for defense.
To summarize, not only did the Free Software Foundation violate their own principals, they hypocritically denied the right to create derivative works from the campaign page while creating a derivative work from Microsoft’s logo which is close enough to the original as to give grounds to Microsoft for a lawsuit. In addition, it begs the question of whether the funds they happen to have are truly being used to better the open source cause or if they’re just burning money in a campaign of FUD.
Microsoft, of course, likely won’t sue because giving the Free Software Foundation their own Streisand Effect would be a nightmare scenario.
All of the above is from my primitive understanding of IP law and licenses. I am not a lawyer, but I would love to be corrected by someone who is and hasn’t chosen a side in this mess.
Photopapered derivative of site content ©2009 Bryant Zadegan, all rights reserved. Original site ©2009 Free Software Foundation. No rights were reserved by the FSF, apparently, because they violated the license they were using to cover their stuff. 
Follow Bryant on Twitter! 
thats what yoiu get when you get a hand full of fanboys of one side, who want to cause trouble and complain about nonsejce that they know nothing about.
What the… more of this again… Erg, Why don’t they just leave well enough alone, let the USER decide what he/she would like.
I’ll be sticking to 7 thank you very much.
No-derivative-works is standard GNU practice for opinion pieces. This is not hypocritical. See:
For essays of opinion and scientific papers, we recommend the simple “verbatim copying only” license that is used for this web page.
http://www.gnu.org/licenses/licenses.html
@john
That’s actually an interesting catch. Oddly, I didn’t find any such recommendation with the Creative Commons, which is typically the first choice when it comes to publishing creative works of any sort. However, permitting only verbatim copies sounds like it might actually inhibit block quotes, which kinda pisses people off.
@ Carl,
Exactly. Why should it matter what so and so likes? don’t let it get to you
Actually Microsoft has to sue or risk losing its trademark.
A number of legal decisions have determined that copyrighted and trademarked material (such as the Windows logo) can be reused for the purposes of satire and commentary. The legal question is determining what fits in those categories and what doesn’t, but the Windows 7 Sins web page clearly does fit into the category of commentary, so I doubt that any court would say that the FSF had violated Microsoft’s copyright or trademark here. Also the law allows for some leeway when copywrited and trademarked material (such as the Windows logo) are incorporated into a larger work (although it is less flexible than in the case of satire).
As for whether the Windows 7 Sins web page violates the ideals of the FSF, you have totally misunderstood the position that Richard Stallman and presumably the rest of the Free Software Foundation take toward copyrighted material. Stallman has never said that all copywrited material needs to be released under a license which allows for derivative works. He only recommends that works which have practical applications–things like manuals and reference books be released under a license which allow for derivative works. Stallman says that we should divide copywritable material into three categories:
1. Practical applications (software, manuals, reference books, scientific knowledge) should have a copyleft license.
2. Testimonial material (commentary, points of view) should have a standard copyright which doesn’t allow for derivative material, but it should be limited to 10 years.
3. Artistic material should have a standard copyright, but it should be limited to 10 years. It is important that artistic material allow for derivative works, but artists can wait 10 years before they are allowed to reuse and alter the material.
Clearly the Windows 7 Sins web page is testimonial material (category 2), so the FSF sees no reason that this material should allow for derivative works, because derivative works might distort their message and point of view. Frankly, you are misinformed and you shouldn’t rely on the poor summaries of Matt Asay, who is a known enemy of the FSF, to determine the positions taken by FSF.
@Amos Batto, do you have links to everything you just noted? (including the legal decisions)
I think the bigger problem is that the page is full of flat-out lies.
Then again, that’s what I would expect from a group like the FSF.
The FSF’s logic, if applied outside of Teh Evil Windoze, would sound like this: http://www.youtube.com/watch?v=w3qFdbUEq5s
Here is what the Copyright Act of 1976, 17 U.S.C. § 107, says about fair use:
“Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.”
As for trademark law, see the Electronic Freedom Foundation’s FAQ: http://www.eff.org/issues/bloggers/legal/liability/IP
The EFF has a lot of lawyers on staff and are involved in a lot of legal fights about what we are permitted to do in the digital domain.
As for Stallman’s views, see his essay: http://www.gnu.org/philosophy/misinterpreting-copyright.html
To heard Stallman give a speech about copyright last week in La Paz, Bolivia, entitled “Copyright vs Comunidad en la Era de las Redes Informáticas”, where he laid out his ideas about copyrights. I hope that someone recorded it and will post it, because it was very thought provoking.
Here is a transcript of Stallman’s speech about copyrights in English from 2000, but the speech has changed a bit in the last decade:
http://www.gnu.org/philosophy/copyright-versus-community.html
Here’s the problem: fair use for the trademark doesn’t apply because the criticisms are slanderous in nature. Microsoft is still under government oversight (and will be until 2011); a part of this involves making Windows is always evaluated for anticompetitive behavior. The United States government hasn’t noted any such behavior even after a strict and rigorous review of Windows 7, which means that a good chunk of the criticisms mentioned by the FSF can be deemed as slander, and Microsoft would have evidence of evaluations from the government to back their claim.
Anyway, there’s no fair use clause for slander. Because of this, the use of the logo (mostly a copied creative work; not much alteration was done to the Windows 7 logo) would no longer be protected, thus keeping my claims in the clear.
However, neither of us are lawyers, so it’s improper to try and determine whose view would be correct until a lawyer pitches his/her opinion (along with the usual “This is not to be considered legal advice” clause).
Windows 7 Rocks. Else Sucks
“fair use for the trademark doesn’t apply because the criticisms are slanderous in nature.”
Fair use provisions in the copyright and trademark laws don’t specify whether criticism has to be true or not. Fair use of a company’s trademark is a totally separate issue from slander and it doesn’t make it any more or less slanderous to use a company’s trademark when committing slander.
Microsoft is welcome to try and prove that the FSF committed slander, but it can’t do anything about the FSF using its trademarked logo. Actually, Microsoft would have a very hard time proving slander as well, because everything on the Windows 7 Sins website can be substantiated to some degree–often with documents produced in previous court cases. The only statements on the website which might not be provable are vague ones which Microsoft can’t disprove either. For instance: “…but Microsoft has its own security interests at heart, not those of its users.” You may not feel that the criticism of Microsoft is fair or justified, but that doesn’t make it slander.
Finally one last comment about your accusation that the FSF violated the creative commons license by using Microsoft’s trademark. The Creative Commons license is based upon copyright law. It does not violate the copyright on a work if it includes a trademarked logo. If it did, almost no work which makes reference to a single company would be able to be copyrighted.
In other words, this blog post is totally irrelevant as the original site was not in fact “illegal lol.” Way to improve the image of the site!
Amos, here’s the thing
The logo is so close to the current Windows 7 logo (hardly any transformation committed at all) that it’s not covered by fair use, so my argument about the logo still stands. They can use the logo in a criticism, parody, or satire, but if there’s not enough of a transformation done to the logo itself, it endangers fair use.
Rhys, this blog post is completely relevant as someone has to counter the lies spread by the FSF. C|Net did it, DownloadSquad did it, and Softpedia did it as well because it was completely justified.
Everything I wrote was based on my understanding, and Amos hasn’t changed a thing in my mind because he isn’t actually a lawyer.
First off let me say I’m not going to take sides because I think both sides are smoking too much crack cocaine for their own good.
Second, the FSF is not violating their own license. It’s not even THEIR license, Creative Commons is an entity independent of the FSF. There is no intellictual property theft taking place here, the microsoft logo recreation was consulted to a 3rd party. There are significant differences, that, one could easily determine it is unaffiliated with Microsoft. If you still don’t understand it, think back to writing college papers, and plagarism rules, this is “original work” and does not voliate CC licenses.
Now whether or not it voliates a trademark, that is an iffy subject. Technically it does, unless they put a footnote. Now Microsoft has pretty much made that flag into a symbol of popular culture really. Ask anybody on the street and 9/10 of people you ask will likely know that flag means Windows. What they are doing is really the same as calling a tissue a kleenex, calling a bandage strip a band-aid, calling geliton jello, and calling ibuprofen advil. It also goes along with Target stores, they have the bulls-eye trademarked, and, lately they seem to have been doing business with strictly that bulls-eye, dropping the target. Does that mean if I re-create a bulls eye somewhere Target has a right to sue? No.
Bryant, all that said, you should apply to write for Fox News, as you do a good job at writing biased crap. While I NEVER 100% agree with the FSF and that I wish people would stop drinking the *nix kool-aid, I also wish people would stop drinking the MSFT kool-aid and accepting every piece of software they put out as a “good” thing, it’s not and most of you people are too stupid to understand why it’s not.
Stitch, I think he knows the CC and FSF are separate. I read it as “their own” meaning their instance of the livenve (or, phrased better, the act of having licensed the page with a creative commons licence).
I didn’t know FOX News asked for corrections from people more knowledgable, stitch
Bryant is asking for a lawyer to step in and clarify, and you didn’t say you were, so what makes your view any different from his?
@Jason, my view is different because I’m not drinking the Microsoft or the *NIX kool-aid, instead i’m drinking heineken. (as in, unbiased)
eh, Jason’s pretty spot on, actually.
I’m fully aware that the Creative Commons is a completely separate entity from the Free Software Foundation, and it’s not like we always do pro-Microsoft pieces either. Granted, most of what I’ve written is biased in favor of Microsoft, but I’ve still posted some articles which were designed solely to point out (what I believed to be) flaws in Microsoft’s products.
having said that, Jason is also right in noting my request for a lawyer to comment (even if there’s a “I am a lawyer, but I’m not your lawyer, and you can’t consider what I write as legal advice” disclaimer).
More Flaws in MSFT’s products: http://channel9.msdn.com/shows/Going+Deep/Dave-Probert-Inside-Windows-7-User-Mode-Scheduler-UMS/
“While I NEVER 100% agree with the FSF and that I wish people would stop drinking the *nix kool-aid, I also wish people would stop drinking the MSFT kool-aid and accepting every piece of software they put out as a “good” thing, it’s not and most of you people are too stupid to understand why it’s not.”
Oh god, truer words have rarely been spoken on this blog. Both sides are annoying the crap out of me, which is why I rarely post either on this blog or on certain other pro-Windows sites. All I wish is to follow up on updates on the industry and sane viewpoints, not pure flamebait about Apple when preaching to the choir (!), stuff like that. This is just a continuation on that path — to skip the arguments and instead go on about the FSF not including a footnote about the Windows logo being a registered trademark of Microsoft. It’s obvious to everyone why the FSF article was picked on this site, but couldn’t the arguments have been met instead of sidestepping the issue in this childish way? I’m not even sure AeroXperience have attributed all the various logo, image, and product name trademarks properly when used on this very blog.
“I’m not even sure AeroXperience have attributed all the various logo, image, and product name trademarks properly when used on this very blog.”
We’ve got that covered. As for the arguments, there’s no reason to meet them because they’re the same talking points the FSF has used for years. They’ve always been ignored by everyone, so I decided to go for something else.
Nice job Bryant. You always catch fools with their pants down. Great job.