Re: cowsay could attract copyright and trademark enforcement action

[Philip McGrath <philip@philipmcgrath.com>]

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