Word twisting ... trademark issue continued

Talking by blogs... if this not already shows the culprit :(

Foreword: I would love to talk to responsible people directly by personal email and not "discuss" this mess in public. But since George France does not reply to my mails and since Russ Nelson has my email address in some kind of ban-list on his server (see [1] below) I have no other choice to comment on this publicly.

So here we go. Russ writes in his blog [2] dated 11th June 2006 titled "Ownership issue..." some quite, um, interesting things:

"Nils Faerber is throwing mudballs in his blog entry entitled Trademark issue...."

Well, it is not exactly mudballs. It is my personal blog so I write my personal feelings about it, which can of course be kind of emotionally colored. But I did not present anything than facts and my interpretation of them.

Then he writes:
"First, we need to be clear here that trademarks are not the problem. Trademarks are intended to be the solution. The problem is that both LinuxToGo (in the person of Nils) and Handhelds.org (in the person of George) think they have exclusive rights to the project named "GPE". Not the code, of course, because open source code can always be forked. This is a fight over the name."

Not exactly.
GPE always has been a project where more than one person with common interest is involved. This is called a "community" (look it up in a dictionary if you like). This is e.g. also true for any other group of people that share same interest, in a worst case a political party. What those groups have in common is that they do not have a dictator that rules the group. We all live in a democracy, i.e. decisions, and especially important ones, should be made by the very same group, together and the majority "wins".

So in our case I claim for me the foundation rights only, i.e. if there is no consensus I as founder will have certain rights. Nothing more. I do not want to "own" it, I just want to, for the project's sake, be able to make a decision if noone else is able to or no majority can be found.

Concerning the move of GPE to LTG we had exactly such a vote on the GPE mailinglist *before* we actually did it. And yes, I will not hide any information, there were two votes against the move, namely from George France who never contributed any line of code to GPE and from Rene Wagner.

Both have been heard and recorded. But the large majority of GPE members and especially active developers were in favour of the move, mostly since at that time LinuxToGo was technically much more promising (we already had SVN there and a more fine grain bugtracker) and LTG is community maintained and not single person ruled.

So after the majority voted *for* the *move* (not fork!) we first copied everything over. Copy is first step for move, right? Apart from George noone complained.

It should also be noted that at that time noone spoke to us in terms of trademarks or ownership. If it would be so clear wouldn't George have done so earlier? Why now and not a *year* before?

After we had everything copied we wanted, for the sake of not confusing people, to have the GPE CVS at hh.org at least be renamed. But George refused anything to change the last state of GPE, even not a pointer on the now abondonned GPE homepage at hh.org, not in the wiki or in CVS. Nothing.

BTW Russ: your claim [3] that Florian by intent deleted parts of the hh.org CVS tree, namely the GPE CVS tree, is NOT true! I ask you to reject this claim or give proof to it. The CVS logs tell a quite different story about that.

The result is that we constantly get emails saying, "well I found that GPE page but it looks like the project is dead, is it?" And as it turns out they looked at the stale hh.org page and the stale CVS. Exactly what was to be expected and what we tried to avoid.

So what else should we do about this? The only way is that hh.org puts a disclaimer somewhere pointing to GPE's new home.

Russ continues:
"Yes, Nils chose the name GPE, and yes, he contributed the first stubs of code to Handhelds.org. Yet he clearly handed the project over to Handhelds.org in his introductory email. He even called it a "community project". He was eager to have it based at handhelds.org. Why? Because he wanted handhelds.org to own it. Why else would he have behaved that way? He already had kernelconcepts.de. He could have hosted it there, except ... he
wanted it to be owned by the community."

Plain wrong!
First of all I cannot see any sentence or single word in my quoted original post that I would "hand it over". If you read the post it explictely sais:
"Maybe this could be hosted on sourceforge.handhelds.org?"

How more precise can one be? It sais "hosting", not "owning"! Nothing more. And at that time I was not able to host anything but a web page at this increadible company "kernel concepts" - at that time I had an office and was running it alone, the internet connection was a dial-up ISDN line and the web-server a rented web-page with just FTP access to it. So
hosting such a project would have been impossible. But if someone would have mentioned to me that the project would at once be owned by hh.org once it is started there I would have gone to SourceForge or the FSF Savannah.

"If he owned GPE, then he would simply have moved it without bothering to ask if anyone objected to moving it. Yet he did ask. That says that he thinks it's a community project. A handhelds.org project. And people objected to him moving it, but he moved it anyway."

So any community project is now a hh.org project? I guess not. And yes, I do not hide or disguise information: Yes, people objected. Two out of about 15 that did speak up at all.
And those were the already above mentioned, George and Rene. While Rene might have had real motives, George had nothing to do with this at all since he is not a GPE contributor or maintainer. A majority was in favour of the move, so we did it. If a majority would have been against it we would not have done it. But this was not the case.

"Handhelds.org was never a hosting site ala Sourceforge, Savannah (nongnu), or Berlios. All of the projects there were started by members of the handhelds.org community to be owned by the handhelds.org community, more like Savannah (gnu). There are no projects there unrelated to Linux on handheld computers."

This is plain false. At that time the only connection I had with hh.org was that I was subscribed to the ipaq mailinglist. Did that make me a hh.org team member? There were hundreds subscribed. All team members? So as you already mentioned above there is no discussion about that I did start GPE.
But I was not a hh.org team member, was I? I was only proposing this on the ipaq mailinglist as a subscribed user. So come on...

And apart from this there is NO SINGLE line of policy at hh.org describing this strange notion of hh.org members, projects ownerships and the "hh.org product". Not a single one. And there never has been. If I would have known this at the time when I asked Jamey Hicks (not George!) for permission to *host* GPE at hh.org there were no strings attached to it. Noone pointed out any limitations on ownership, policies or anything. So be careful here. You
cannot prove anything of this. For an outsider hh.org was at that time a site with people coming from DEC/compaq doing some own stuff and also sharing their resources with others, namely open source projects which were allowed to use their hosting resources.

Point me to *any* text, be it very brief, describing any difference and especially explaining the ownership claim and I will shut up at once.

"Nils seems to believe that he can convince people (he has already convinced himself) that hh.org was just a hosting site, so moving a project was not forking. Unsurprisingly, the people at hh.org disagree and think he should fork and rename."

He ;) I like this "...the people at hh.org...". Who is this? Sounds like a whole bunch of people? Strange that for the last two years only George is visible. So please do not confuse others now and create the illusion that hh.org itself consists of more than one person acting. This is George and George alone. I have certain understanding how this all came, since the merge of Compaq/HP, the closure of CRL, etc. I even offered at that time my/our help to George in order to maintain hh.org (since we appreciated its service very much). But talks got stuck and all he said was very vague and it took ages for him to reply - I do not blame him! It is just a matter of fact. But since we had to work with GPE almost every day we had to come up with a solution how to resolve all the shortcomings that hh.org showed at that time - at that time CVS contantly failed for various reasons which made work almost
impossible. This was basically the start of the idea of LinuxToGo.

After we got the server rented, for which BTW we do pay every month from our own money without big sponsors or such, we tried to set it up and it worked out pretty well. We tested with the sources we wanted to have in SVN (hh.org at that time was CVS only) and everything was fine! So we proposed the move. The rest of the story is known...

How else could we have possibly done it?
We asked the main maintainers and contributors and except one they all were OK with it. At that time George simply objected. I asked for his reasons but he did not speak to me. He especially did not mention that hh.org would "own" the GPE project nor that it would own the trademark on it.

This is now more than a year ago.

And suddenly this whole issue comes up? Strange, isn't it?

"The problem is that both parties believe that they own the name, and can put forth a reasonable argument by community norms. For better or worse, Handhelds.org was the first to use the name in trade, which in the U.S. gives it the trademark."

Aha, so hh.org did sell GPE? Or how else did hh.org make trade with it? I do not get it... The first to use was me. The first website was not on hh.org. So what does trade mean here? And who cares about US laws? In the US things are forbidden taht are allowed in Germany e.g. Which law is applicable to a virtual project which is not bound to physical existance and thus a physical appearance on some country? We have contributors from all over the world. Which law should apply then? Why you think that US law should supercede any other?
You should probably accept the fact that other countries have different laws and that there is also something happening in old fashioned Europe and not all inventions come from the States. In fact most of Linux development is done in Europe, not US.

"George is only seeking a trademark (which he plans to assign to Handhelds.org, Inc.) to enforce a claim on the project that he believes, by community norms, is legitimate. For his part, Nils is trying to sway public opinion against George by making his actions seem illegitimate, as if Nils owned the project without dispute, and as if George was trying to
steal it."

Well. to make that clear again. I do not claim ownership. Noone can own this project since it is a community project. The community decided to move (not to fork). And this is what happened. Everything else is word twisting.

What George did was wrong, indeed. He acted against the good will of the community by not allowing it to move properly. He acted against the community by registering the trademark (it was not a community decision to do so). He acted against the community by now enforcing this trademark. And he acts against the community by claiming that hh.org hosted projects would
be "owned" by hh.org. Ask Matthew Allum about who owns Matchbox? This also started on hh.org but there is no dispute about this onw, is it? What about OpenEmbedded? They used hh.org as pure service provider and there was no such dispute in their move?

So be honest, this ownership thing can be falsified easily as well as the missing hh.org policy that would justify that. I guess if I think longer I can come up with at least half a dozen or more cases where hh.org does not claim ownership where it should.

Only a few projects are currently under hh.org fire. I wonder why. Those are especially OPIE and GPE. Strangely both had some struggles with George France personally. So with other projects not having problems and the ones in trouble being ones that had personal troubles with him one could also easily think this to be some kind of revenge thing...

"In other words, neither party can resolve their claims by community norms and both are seeking other means of enforcing their claim to GPE."

Well, I am not so sure about that. The trademark process is well defined and we will formally object. Then we can see how the US-Pat office likes that. The trademarks are not registered yet, they are just applied for! They have not even been checked by the US-Pat office! So step back, we still have weeks and months to get this right.

And for the time being I suggest that George and hh.org stop harassing people with legal threats! The trademarks are not yet valided and can thus not be prosecuted. Anything else is wild speculation.

"So what are we, as a community, to do? Who owns the project named 'GPE'? It's not clear, by the rules we've always followed. We need to make new rules."

Noone owns the project. The code is GPL/LGPL and will ever be so there is no ownership here in the classical sense. The only ownership that anyone claims is that hh.org claims that it own the project and its name. Silly.
And here comes the best part it ;)

I honestly honor Russ' tryign to come up with a proposal. But this one is plain ineacceptable:

"There's a hint, in trademark law. If two parties are using the same name in conflict (e.g. Snyder's of Hanover, and Snyder's of Berlin, both of whom make pretzels in Pennsylvania), then both must take steps to ensure that they are not confused with the other. We may choose to accept or reject that hint. If we choose to accept it, then I propose settlement terms as follows:
A GPE Settlement

Whereas:
* Both parties act as if they own exclusive rights to the name "GPE".
* Both parties can put up a reasonable case for ownership.
* Both parties have offended against the other.
* Both sets of offenses can be forgiven in the light of protecting exclusive ownership.
"

There is no such thing as "exclusive ownership" on an open source project.

"Be it resolved that:
* Neither party gets exclusive ownership.
* Both parties have to qualify "GPE" with their own name: Handhelds-GPE and LinuxToGo-GPE.
* Neither party can use GPE alone. Not on a good day. Not on a bad day. Not at all.
* George has to license GPE(tm) to Nils under the preceding terms, who will acknowledge "GPE(tm) is a trademark of Handhelds.org, Inc., used by permission."
"

No way.
Why should I?
And here comes the best part:

"
* Nils agrees only to use the GPE trademark on the body of code once based at handhelds.org.
"

So this would basically force us, if we wanted to further develop a "GPE" to go back and use hh.org, does it?

" * The GPE trademark and goodwill may be assigned only with agreement to these terms.
* Nils and any LinuxToGo associates have to respect the GPE trademark.
* The GPE trademark holder can only initiate trademark infringement proceedings with the assent of Nils (Nils has to comply with this agreement or lose his license to use GPE -- but that was obvious, right?).
"
Uh, great.
Effectively what we gain by this is that we still would be forced to rename GPE at LTG to some LTG-GPE and would have to kindly ask for permission to use the GPE term alone. What does that give us?

We still are forced to acknowledge the fact that hh.org would own the name, we could do nothing with it except we point to hh.org every time?

I guess this only serves hh.org, does it?

"
* Both parties stop maligning each other.
* Both parties apologize to each other for specific acts ($LIST here).
* Both parties forgive each other.
"

That's cool!
Someone stepped on your toe and you shall apologize?
For what? For protecting our/my project? Our six years of work?

I still do not get it, so again:

George started all this, silently without seeking dialog in the first place! He simply acted on his own without consulting the so much praised community. We asked people about their opinion about everything we did. George did not. So who is doing wrong here? Who should apologise?

I will not apologise for the fact that I do, same as George thinks to do, protect our/my project.

"Obviously this settlement goes nowhere unless both Nils and George agree to it. But having it written out is better than the mudballs that Nils and LinuxToGo associates are throwing at George."

And as I said above, I repect this, but I will not agree with it.

[1] Russ Nelson's server's reply to my mails to him:
"
This message was created automatically by mail delivery software.

A message that you sent could not be delivered to one or more of its
recipients. This is a permanent error. The following address(es) failed:

nelson@crynwr.com
SMTP error from remote mail server after RCPT TO::
host ns1.crynwr.com [192.203.178.14]: 553 sorry, your envelope sender is
in my badmailfrom list (#5.7.1)
"

[2] Russ' blog about the issue:
http://blog.russnelson.com/opensource/ownership-issue.html

[3] Russ geeklog entry at hh.org
http://www.handhelds.org/geeklog/article.php?story=20070525101908558