Re: cowsay could attract copyright and trademark enforcement action

[Leo Prikler]

Fair points and well argued.

Am Samstag, den 17.07.2021, 01:46 -0400 schrieb Philip McGrath:
> On 7/16/21 6:26 PM, Leo Prikler wrote:> As others point out, it is 
> debatable whether or not such a trademark
> > can be enforced, but what we should be discussing -- and I'd be
> > more
> > than happy to be wrong on this -- is whether or not the cowfiles
> > can be
> > distributed under GPL-compatible terms/in accordance with the FSDG.
> These files seem to me to be non-functional data, analogous to game 
> graphics, which the FSDG do not require to have free/libre licenses. 
> Just as firmware is still code, even if it is represented as an array
> of 
> numbers, I think ASCII art templates are data, even if they are
> embedded 
> in Perl fragments.
> 
> (In the Lisp tradition, I think the distinction between code and data
> is 
> a fuzzy one, but this case seems fairly clear to me.)
> 
> On the broader issues, I also am not a lawyer, but I would expect all
> of 
> these files to be protected by the rights of fair use, fair dealing,
> and 
> other limitations or exceptions to copyright. Limitations and
> exceptions 
> seem to trademark law also seem to apply.
> 
> Fair use and analogous rights are vitally important protections of 
> freedom, including software freedom. For example, in the recent case
> of 
> Google v. Oracle, fair use was the legal right which protected the 
> freedom of the Java APIs. (The decision also left open the
> possibility 
> that APIs may not be copyrightable at all.)
> 
> Apparently these files are over 20 years old and have been widely 
> distributed without objections. If Guix were to remove these files,
> we 
> would implicitly be disagreeing with the apparent community
> consensus 
> and saying that users do not have the freedom to create, use, or
> share 
> such cowfiles. That's not a position I think Guix ought to take, 
> especially not against the apparent consensus of the broader free 
> software community.
> 
> -Philip