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On November 3rd, the Software Freedom Conservancy (SFC) wrote a blog post to let people know that the Software Freedom Law Center (SFLC) had begun legal action against them (the SFC) over the trademark for their name.
[There’s a lot of words here… but this is pretty important stuff for those of us in the Free Software community. I’ll try to keep this as brief as possible while still conveying most of the important parts, as I see it. I’ve also published a video outlining most of this (links up top).]
Who is the SFLC?
- Started in 2005.
- Funded with $4 Million from Open Source Development Labs.
- OSDL: Used to employ Linus Torvalds.
- OSDL merged with Free Standards Group (led by Jim Zemlin)
- … and formed The Linux Foundation.
- Founded by Eben Moglen.
- “The Software Freedom Law Center provides pro-bono legal services to developers of Free, Libre, and Open Source Software.”
Who is the SFC?
- Started in 2006.
- Created out of the SFLC…
- With initial directors including Eben Moglen (founder of the SFLC) and Karen Sandler (current Executive Director).
- “Software Freedom Conservancy helps promote, improve, develop, and defend Free, Libre, and Open Source Software (FLOSS) projects. Conservancy provides a non-profit home and infrastructure for FLOSS projects.”
Telling this story is, perhaps, best done by quoting the words of the people involved. The SFC statement (from November 3rd) reads, in part:
“About a month ago, the Software Freedom Law Center (SFLC), the not-for-profit law firm which launched Conservancy in 2006 and served as Conservancy’s law firm until July 2011, took the bizarre and frivolous step of filing a legal action in the United States Patent and Trademark Office seeking cancellation of Conservancy’s trademark for our name, “Software Freedom Conservancy”. We were surprised by this spurious action. In our eleven years of coexistence, SFLC has raised no concerns nor complaints about our name, nor ever asked us to change it. We filed our formal answer to SFLC’s action yesterday.
SFLC’s action to cancel our trademark initiated a process nearly identical to litigation. As such, our legal counsel has asked us to limit what we say about the matter. However, we pride ourselves on our commitment to transparency.
SFLC made no efforts — over the last eleven years since Conservancy was formed, nor in the last five years since we registered our name as a trademark — to express any concerns about our name, or a desire for us to change our name. We first learned of SFLC’s complaints from this surprise attack of legal action.
We are prepared to defend our brand, not just for ourselves but for our many member projects who have their home at Conservancy, our Outreachy diversity initiative, and our collective efforts to promote FLOSS.”
Indeed, on November 2nd (the day before this post), the SFC responded with their formal answer to the SFLC (which you can read online).
On November 6th, the SFLC responded with a blog post of their own. I am quoting a few key sections, but feel free to read the entire post for the full background.
“On Friday, while we were putting on our annual conference at Columbia Law School, a puff of near-apocalyptic rhetoric about us was published by SFLC’s former employees, Karen Sandler and Bradley Kuhn, who now manage the Conservancy, which was originally established and wholly funded by SFLC, and still bears our name. We were busy with our conference when this happened, which seems to have been the point. We are glad to have the chance now, after a little much-needed rest, to help everyone avoid unnecessary hyperventilation.
At the end of September, SFLC notified the US Patent and Trademark Office that we have an actual confusion problem caused by the trademark “Software Freedom Conservancy,” which is confusingly similar to our own pre-existing trademark. US trademark law is all about preventing confusion among sources and suppliers of goods and services in the market.
By no means does this situation justify the tone of defensive overreaction we heard from the Conservancy management on Friday, which was like reading a declaration of war issued in response to a parking ticket.
We have tried repeatedly for almost three years to get a meeting with Karen and Bradley in order to discuss this and other claims we have concerning their and the Conservancy’s activities. In all that time, they have never once agreed to meet with us to hear and discuss our concerns. They have presented transparently dilatory responses, such as being “too busy,” or even “always too busy” when we asked them to set their own time. Sometimes we have not been offered so much as the courtesy of a refusal.
Any project working with the Conservancy that feels in any way at risk should contact us. We will immediately work with them to put in place measures fully ensuring that they face no costs and no risks in this situation.
We are now, as we have been throughout, fully prepared to meet immediately for a discussion of all outstanding issues without preconditions. Otherwise, it seems evident that more shoes will drop.”
I reached out to both the SFLC and the SFC for comment — and with questions of my own.
The SFLC responded, after a bit of prodding on social media, with the following. I am quoting their entire response.
“Thanks for your message. We published a statement about this matter today on our blog”
I followed up that response with additional questions, an interview request, and a formal request for their non-profit report (which they state, on their website, that we can request a copy of). No response, of any kind, was received from the SFLC.
I also reached out to the Software Freedom Conservancy. Bradley Kuhn provided the following responses:
“We at Conservancy reiterate that SFLC never raised any complaint to us about our name, trademark, or branding prior to filing their USPTO petition. We encourage SFLC to produce any documentation that shows attempts to raise this issue with us.
Our biggest concern is the waste of resources that are dedicated to the public good, in the form of donations to both charities. The longer SFLC insists on this bizarre course of action, the more resources are wasted.
SFLC should withdraw the cancellation petition. Conservancy will take an “all’s well that ends well” attitude if they do so.”
Reaction from the community
To give a little more background, Neil McGovern (ex-Debian Project Leader and Executive Director for the GNOME Foundation) write a post outlining his views. Some of the interesting tidbits quoted below.
“It’s clear to me that for some time, there’s been quite a bit of animosity between SFLC and Conservancy
This culminated in SFLC publishing a statement, and Conservancy also publishing their statement, backed up by the FSF. These obviously came to different conclusions, and it seems bizarre to me that SFLC who were acting as Debian’s legal counsel published a position that was contrary to the position taken by Debian. Additionally, Conservancy and FSF who were not acting as counsel mirrored the position of the project.
Then, I hear of an even more confusing move – that SFLC has filed legal action against Conservancy, despite being the organisation they helped set up. This happened on the 22nd September, the day after SFLC announced corporate and support services for Free Software projects.
they also state: “Any project working with the Conservancy that feels in any way at risk should contact us. We will immediately work with them to put in place measures fully ensuring that they face no costs and no risks in this situation.” which I read as a direct pitch to try and pull projects away from Conservancy and over to SFLC.
the optics are pretty terrible. We have a case of one FOSS organisation taking another one to court, after many years of them being aware of the issue, and when wishing to promote a competing service. At best, this is a distraction from the supposed goals of Free Software organisations, and at worst is a direct attempt to interrupt the workings of an established and successful umbrella organisation which lots of projects rely on.
I truly hope that this case is simply dropped, and if I was advising SFLC, that’s exactly what I would suggest, along with an apology for the distress.
Before I took on the [Debian Project Leader] role, I was under the naive impression that although there were differences in approach, at least we were coming to try and work together to promote software freedoms for the end user. Unfortunately, since then, I’ve now become a lot more jaded about exactly who, and which organisations hold our best interests at heart.”
Then, on November 13th, another blog entry (“Eben Moglen is no longer a friend of the free software community“) was published by Matthew Garrett (a prominent developer and security expert in the Linux world, & ex-member of the Free Software Foundation board of directors), where he doesn’t exactly mince words.
“his [Eben Moglen’s] recent behaviour demonstrates that he is no longer willing to work with other members of the community, and we should reciprocate that.
In early 2016, the FSF board became aware that Eben was briefing clients on an interpretation of the GPL that was incompatible with that held by the FSF. He later released this position publicly with little coordination with the FSF, which was used by Canonical to justify their shipping ZFS in a GPL-violating way. He had provided similar advice to Debian, who were confused about the apparent conflict between the FSF’s position and Eben’s.
the FSF were forced into the position of publicly stating that they disagreed with legal positions held by their general counsel. Attempts to mediate this failed, and Eben refused to commit to working with the FSF on avoiding this sort of situation in future.
Around the same time, Eben made legal threats towards another project with ties to FSF. These threats were based on a license interpretation that ran contrary to how free software licenses had been interpreted by the community for decades, and was made without any prior discussion with the FSF. This, in conjunction with his behaviour over the ZFS issue, led to him stepping down as the FSF’s general counsel.
Throughout this period, Eben disparaged FSF staff and other free software community members in various semi-public settings. In doing so he harmed the credibility of many people who have devoted significant portions of their lives to aiding the free software community. At Libreplanet earlier this year he made direct threats against an attendee – this was reported as a violation of the conference’s anti-harassment policy.
Eben has acted against the best interests of an organisation he publicly represented. He has threatened organisations and individuals who work to further free software. His actions are no longer to the benefit of the free software community and the free software community should cease associating with him.”
Like I said. No minced words.
And, just in case anyone thinks this is a new stance from Matthew Garrett… consider the following tweet that he posted over half a year ago:
“Eben Moglen has threatened and bullied multiple community members during his time in free software. Consider that before working with him.”
I have no personal relationship with Eben Moglen or the Software Freedom Law Center (SFLC). Never worked with them, never spent any significant time with them. Based on this I have no reason to think anything negative about them.
The moves by the SFLC seem, at best, strange. And, at worst… well… let’s just say that I can’t think of any positive outcome here for either the Free Software community or any other Free Software-focused organizations (such as the Conservancy or the FSF).