cowsay could attract copyright and trademark enforcement action

cowsay could attract copyright and trademark enforcement action

[Bone Baboon]

cowsay has many questionable files that could attract copyright and
trademark enforcement action.  For further details see the pull
requested linked below.

Guix packages cowsay.  /gnu/packages/games.scm says that the source code
repository used is <https://github.com/tnalpgge/rank-amateur-cowsay>.
In that repository's CONTRIBUTING.md it says "Issues and pull requests
on that repository will be ignored.".  I submitted a pull request
<https://github.com/tnalpgge/rank-amateur-cowsay/pull/4>.  I expect that
it will be ignored.

I have also found a fork of cowsay
<https://github.com/cowsay-org/cowsay> that claims to be maintained.
I have submitted a pull request to it as well.
<https://github.com/cowsay-org/cowsay/pull/16> 

It would be good to have this issue addressed upstream.  I have just
submitted these pull requests.  I will provide an update if either pull
request is merged (modified or unmodified).  If neither repository makes
any changes to address these questionable files then it may make sense
for Guix to patch the cowsay package.

Re: cowsay could attract copyright and trademark enforcement action

[Bone Baboon]

Bone Baboon writes:

> cowsay has many questionable files that could attract copyright and
> trademark enforcement action.  For further details see the pull
> requested linked below.
>
> Guix packages cowsay.  /gnu/packages/games.scm says that the source code
> repository used is <https://github.com/tnalpgge/rank-amateur-cowsay>.
> In that repository's CONTRIBUTING.md it says "Issues and pull requests
> on that repository will be ignored.".  I submitted a pull request
> <https://github.com/tnalpgge/rank-amateur-cowsay/pull/4>.  I expect that
> it will be ignored.
>
> I have also found a fork of cowsay
> <https://github.com/cowsay-org/cowsay> that claims to be maintained.
> I have submitted a pull request to it as well.
> <https://github.com/cowsay-org/cowsay/pull/16> 
>
> It would be good to have this issue addressed upstream.  I have just
> submitted these pull requests.  I will provide an update if either pull
> request is merged (modified or unmodified).  If neither repository makes
> any changes to address these questionable files then it may make sense
> for Guix to patch the cowsay package.

In this response to the pull request I submitted about the
questionable files in the cowsay repository
<https://github.com/tnalpgge/rank-amateur-cowsay/pull/4#issuecomment-878092487>
apjanke is requesting feedback.

> If there are any actual IP lawyers, relevant IP owners, or
> distributions who redistribute cowsay who would like to weigh in on
> this, I'd definitely like to hear what you have to say.

For those who want to respond to apjanke but do not have or do not
want to use a GitHub account I can link this email thread in the
discussion about the pull request.

Re: cowsay could attract copyright and trademark enforcement action

[Leo Prikler]

Am Mittwoch, den 14.07.2021, 09:57 -0400 schrieb Bone Baboon:
> [...]
> 
> In this response to the pull request I submitted about the
> questionable files in the cowsay repository
> <
> https://github.com/tnalpgge/rank-amateur-cowsay/pull/4#issuecomment-878092487
> >
> apjanke is requesting feedback.
> 
> > If there are any actual IP lawyers, relevant IP owners, or
> > distributions who redistribute cowsay who would like to weigh in on
> > this, I'd definitely like to hear what you have to say.
> 
> For those who want to respond to apjanke but do not have or do not
> want to use a GitHub account I can link this email thread in the
> discussion about the pull request.
I am not an IP lawyer, nor do I own any of said characters, but I'd
like to point out that not all jurisdictions follow the US model.  In
Germany for example, you can (in the near future/already?) not use more
than 160 characters of copyrighted material -- granted, the cowfiles
are shorter than that, but copyright law is troubling over here in
Europe nonetheless.

Furthermore:
> Given that this is a noncommercial work [...] [a]nd they're [the
> characters] not being sold
I don't think applies to free as in the case of freedom distributions
like Trisquel or Guix.  A non-commercial clause would be a violation of
the GPL, the very license cowsay is distributed under.  As the author
of cowsay, apjanke could very well ship such characters with it (unless
they themselves also happen to use GPL'd software as dependency in
which they'd be violating that GPL), but unless they can pass on the
freedom to distribute those cows *under the terms of the GPL*, no one
else can either, which would make distributing cowsay with those
characters illegal
1. under trademark law
2. under the terms of the GPL

Clearly, copyright law in 2021 is not broken at all :^)

Regards,
Leo

Re: cowsay could attract copyright and trademark enforcement action

[Leo Prikler]

Am Donnerstag, den 15.07.2021, 13:06 +0200 schrieb Leo Prikler:
> Am Mittwoch, den 14.07.2021, 09:57 -0400 schrieb Bone Baboon:
> > [...]
> > 
> > In this response to the pull request I submitted about the
> > questionable files in the cowsay repository
> > <
> > https://github.com/tnalpgge/rank-amateur-cowsay/pull/4#issuecomment-878092487
> > apjanke is requesting feedback.
> > 
> > > If there are any actual IP lawyers, relevant IP owners, or
> > > distributions who redistribute cowsay who would like to weigh in
> > > on
> > > this, I'd definitely like to hear what you have to say.
> > 
> > For those who want to respond to apjanke but do not have or do not
> > want to use a GitHub account I can link this email thread in the
> > discussion about the pull request.
> I am not an IP lawyer, nor do I own any of said characters, but I'd
> like to point out that not all jurisdictions follow the US model.  In
> Germany for example, you can (in the near future/already?) not use
> more than 160 characters of copyrighted material -- granted, the
> cowfiles are shorter than that, but copyright law is troubling over
> here in Europe nonetheless.
To expand on this, the 160 characters thing is a compromise, as
according to §51a of the UrhG the use of copyrighted material for the
purposes of caricature or parody is legal in Germany [1].  Vader koalas
would probably fall under this paragraph.

Now one could hypothesize that this applies to other parts of the EU as
well, but I wouldn't be too sure about that.  The Austrian UrhG at
least to my untrained eyes and substring search appears to be lacking
such a right to parody our great mouse overlord.

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.

Regards,
Leo

[1] https://www.gesetze-im-internet.de/urhg/__51a.html

Re: cowsay could attract copyright and trademark enforcement action

[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

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

Re: cowsay could attract copyright and trademark enforcement action

[Leo Prikler]

Am Donnerstag, den 15.07.2021, 13:06 +0200 schrieb Leo Prikler:
> Am Mittwoch, den 14.07.2021, 09:57 -0400 schrieb Bone Baboon:
> > [...]
> > 
> > In this response to the pull request I submitted about the
> > questionable files in the cowsay repository
> > <
> > https://github.com/tnalpgge/rank-amateur-cowsay/pull/4#issuecomment-878092487
> > apjanke is requesting feedback.
> > 
> > > If there are any actual IP lawyers, relevant IP owners, or
> > > distributions who redistribute cowsay who would like to weigh in
> > > on
> > > this, I'd definitely like to hear what you have to say.
> > 
> > For those who want to respond to apjanke but do not have or do not
> > want to use a GitHub account I can link this email thread in the
> > discussion about the pull request.
> I am not an IP lawyer, nor do I own any of said characters, but I'd
> like to point out that not all jurisdictions follow the US model.  In
> Germany for example, you can (in the near future/already?) not use
> more than 160 characters of copyrighted material -- granted, the
> cowfiles are shorter than that, but copyright law is troubling over
> here in Europe nonetheless.
To expand on this, the 160 characters thing is a compromise, as
according to §51a of the UrhG the use of copyrighted material for the
purposes of caricature or parody is legal in Germany [1].  Vader koalas
would probably fall under this paragraph.

Now one could hypothesize that this applies to other parts of the EU as
well, but I wouldn't be too sure about that.  The Austrian UrhG at
least to my untrained eyes and substring search appears to be lacking
such a right to parody our great mouse overlord.

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.

Regards,
Leo

[1] https://www.gesetze-im-internet.de/urhg/__51a.html

Re: cowsay could attract copyright and trademark enforcement action

[Cees de Groot]

[-- Attachment #1: Type: text/plain, Size: 2524 bytes --]

Can I be a little bit annoying here? I dabbled a lot in IP law, and the only thing I really learned is that what lay people like us think is probably not what lawyers have to say. I think it’s perfectly fine to just do nothing therefore. If an actual lawyer gets set on this package, it is early enough to take measures like removing the package.

Sent from ProtonMail for iOS

On Fri, Jul 16, 2021 at 18:26, Leo Prikler <leo.prikler@student.tugraz.at> wrote:

> Am Donnerstag, den 15.07.2021, 13:06 +0200 schrieb Leo Prikler:
>> Am Mittwoch, den 14.07.2021, 09:57 -0400 schrieb Bone Baboon:
>> > [...]
>> >
>> > In this response to the pull request I submitted about the
>> > questionable files in the cowsay repository
>> > <
>> > https://github.com/tnalpgge/rank-amateur-cowsay/pull/4#issuecomment-878092487
>> > apjanke is requesting feedback.
>> >
>> > > If there are any actual IP lawyers, relevant IP owners, or
>> > > distributions who redistribute cowsay who would like to weigh in
>> > > on
>> > > this, I'd definitely like to hear what you have to say.
>> >
>> > For those who want to respond to apjanke but do not have or do not
>> > want to use a GitHub account I can link this email thread in the
>> > discussion about the pull request.
>> I am not an IP lawyer, nor do I own any of said characters, but I'd
>> like to point out that not all jurisdictions follow the US model. In
>> Germany for example, you can (in the near future/already?) not use
>> more than 160 characters of copyrighted material -- granted, the
>> cowfiles are shorter than that, but copyright law is troubling over
>> here in Europe nonetheless.
> To expand on this, the 160 characters thing is a compromise, as
> according to §51a of the UrhG the use of copyrighted material for the
> purposes of caricature or parody is legal in Germany [1]. Vader koalas
> would probably fall under this paragraph.
>
> Now one could hypothesize that this applies to other parts of the EU as
> well, but I wouldn't be too sure about that. The Austrian UrhG at
> least to my untrained eyes and substring search appears to be lacking
> such a right to parody our great mouse overlord.
>
> 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.
>
> Regards,
> Leo
>
> [1] https://www.gesetze-im-internet.de/urhg/__51a.html

[-- Attachment #2: Type: text/html, Size: 3066 bytes --]

Re: cowsay could attract copyright and trademark enforcement action

[Leo Famulari]

On Sun, Jul 11, 2021 at 10:56:33PM -0400, Bone Baboon wrote:
> cowsay has many questionable files that could attract copyright and
> trademark enforcement action.

I doubt it. Many of these files have been in the cowsay source code
since 1999 (apparently), and at least since 2004, according to
archive.org:

https://web.archive.org/web/20040404080800/http://www.nog.net/~tony/warez/cowsay.shtml

Re: cowsay could attract copyright and trademark enforcement action

[Bone Baboon]

Leo Famulari writes:

> On Sun, Jul 11, 2021 at 10:56:33PM -0400, Bone Baboon wrote:
>> cowsay has many questionable files that could attract copyright and
>> trademark enforcement action.
>
> I doubt it. Many of these files have been in the cowsay source code
> since 1999 (apparently), and at least since 2004, according to
> archive.org:
>
> https://web.archive.org/web/20040404080800/http://www.nog.net/~tony/warez/cowsay.shtml

Thanks for sharing that.

I would like to point out that the situation is not static as the
ownership of trademark and copyright can change over time and the new
owners may choose to behave differently.

A directly relevant example is the Star Wars cowsay
files. <https://en.wikipedia.org/wiki/Star_Wars> says that Lucasfilm
Ltd. the owners of the Star Wars franchise was acquired by Disney.

Re: cowsay could attract copyright and trademark enforcement action

[fuzzyTew]

[-- Attachment #1: Type: text/plain, Size: 108 bytes --]

Pretty sure copyright owners lose the right to enforce if they let the
infringement go for too long, ianal.

[-- Attachment #2: Type: text/html, Size: 130 bytes --]

Re: cowsay could attract copyright and trademark enforcement action

[Bone Baboon]

Bone Baboon writes:

> cowsay has many questionable files that could attract copyright and
> trademark enforcement action.  For further details see the pull
> requested linked below.
>
> Guix packages cowsay.  /gnu/packages/games.scm says that the source code
> repository used is <https://github.com/tnalpgge/rank-amateur-cowsay>.
> In that repository's CONTRIBUTING.md it says "Issues and pull requests
> on that repository will be ignored.".  I submitted a pull request
> <https://github.com/tnalpgge/rank-amateur-cowsay/pull/4>.  I expect that
> it will be ignored.
>
> I have also found a fork of cowsay
> <https://github.com/cowsay-org/cowsay> that claims to be maintained.
> I have submitted a pull request to it as well.
> <https://github.com/cowsay-org/cowsay/pull/16> 
>
> It would be good to have this issue addressed upstream.  I have just
> submitted these pull requests.  I will provide an update if either pull
> request is merged (modified or unmodified).  If neither repository makes
> any changes to address these questionable files then it may make sense
> for Guix to patch the cowsay package.

The pull request I opened that removed the questionable files on the
cowsay repository Guix uses was closed without being merged.
<https://github.com/tnalpgge/rank-amateur-cowsay/pull/4>

This pull request on a cowsay fork is still open.
<https://github.com/cowsay-org/cowsay/pull/16>