Examining Trademark Overreach

Mon, 14 Aug 2023

In a prior post, I discussed Mozilla's trademark policy and its implications for free software. Today, I'm revisiting this subject from a different perspective. My focus is on a particular segment of Mozilla's Distribution Policy, which says: "When distributing, you must distribute the most recent version of Firefox and other Mozilla software." Mozilla's trademark policy refers to this as an "additional guideline", and the mandate carries significant implications for software freedom.

The Free Software Definition outlines four fundamental freedoms that users should possess:

Freedom 0: The freedom to run the program for any purpose.
Freedom 1: The freedom to study how the program works, and change it so it does your computing as you wish.
Freedom 2: The freedom to redistribute copies so you can help others.
Freedom 3: The freedom to distribute copies of your modified versions to others.

Mozilla's policy, however, conditions the distribution of exact copies on their being the latest version. That means the permission ceases when a newer version is released, regardless of whether someone knows its existence. This abrupt termination of the license, solely because a more recent version exists, seems to contradict Freedom #2: the freedom to redistribute exact copies.

Indeed, the Free Software Definition asserts that "if the software developer can revoke the license, or retroactively impose restrictions on its terms, without your doing anything wrong to give cause, the software is not free."

Mozilla demanding people to stop distributing older versions for no reason other than Mozilla has released a newer version seems to conflict with the freedoms the FSF insists are essential for a program to be considered free.

I don't mean to suggest that a trademark must be free, but let's consider it in the context of Freedom #2, where you're creating an exact copy, akin to the command cp foo bar, where bar might be on an external drive owned by a friend.

Making an exact copy with Freedom #2 becomes impossible if the trademark's rules require altering the program before sharing it. In this case, do you still have Freedom #2 if only modified versions can be shared? The same question arises if the rules only let you make copies at no charge or for a limited time until a newer version comes out, all of which are part of Mozilla's policy.

There are numerous reasons why people want to distribute older versions. Perhaps they have older hardware or operating systems that can't support the latest version. They may use add-ons incompatible with a newer version. Or they might prefer the user interface or features of older versions. Regardless of the reasons for wanting to distribute an older version, Mozilla's policy prohibits this.

You could contact Mozilla to explain your situation and request permission to continue distributing the old version, hoping they agree. However, this contradicts another aspect of the Free Software Definition, which states that "being free to do these things means (among other things) that you do not have to ask ... for permission to do so."

Consider the example of cars, which often bear the trademarked logos of their manufacturers, like the hood ornament on a Mercedes-Benz. Imagine if a car manufacturer tried to use trademark to say you're no longer "allowed" to sell your car - only give it away at no cost - and that you can't even do that if a newer model exists.

The idea seems absurd - you should be able to do what you want with a car you own, as long as you're not causing confusion over the source and making clear if you've made changes and that it's not exactly what came from the car manufacturer. Still, it is what Mozilla is trying to do.

Trademarks help people identify specific goods or services originating from a particular source, and they don't inherently conflict with software freedom. The issue arises when conditions exceeding what trademark law might cover are added, such as dictating how long someone can make copies and at what price.

This seems like it could be an example of trademark overreach, with Mozilla stretching trademark's intended purpose of identifying a source into areas where it doesn't belong. Mozilla had previously deemed that version good enough to bear their trademark and, as long as someone isn't misrepresenting the source and confusing others, someone's ability to distribute exact copies of old versions with a truthful statement like "this is Firefox, as published by Mozilla" should not amount to trademark infringement.

Is this legally enforceable? Can Mozilla add any conditions and do anything they want with impunity? Or does Mozilla's policy lack grounds for that restriction to be enforceable? That would require consulting with a trademark lawyer and maybe we'd not really know even then. Perhaps only a court case would tell us for sure.

The USPTO has said: "Mark owners may, however, sometimes be too zealous and end up overreaching. Sometimes they may have an over-inflated view of the strength of the mark and thus the scope of their rights..." and that they may "mistakenly believe that to preserve the strength of their mark they must object to every third-party use ... no matter whether such uses may be fair uses or otherwise non-infringing."

The USPTO has also described a "trademark bully" as a trademark owner that uses its trademark rights to harass and intimidate another business beyond what the law might be reasonably interpreted to allow.

Regardless of whether it's legally enforceable, Mozilla's policy could have a chilling effect by scaring people into giving up their freedom, especially if they don't know their rights or don't want to get into a legal argument, even if they might win. Simply put, it's not right for Mozilla to try to stop people from making copies.