Re: GNU - Principles and Guidelines

[Jean Louis]

* DJ Delorie <dj@delorie.com> [2020-01-04 04:56]:
> Mike Gerwitz <mtg@gnu.org> writes:
> > The FSF does provide essential resources for the GNU Project, but it has
> > no say in how the project is governed.  Those decisions must be made by
> > rms.
> 
> It's important to remember that one of the "essential resources" is the
> GNU trademark itself, which means that the FSF has the final say over
> who/what can use it and who/what cannot.  While this "say" is typically
> ceded to RMS, that is at the FSF's sufferance, legally.

Legality does not include only the ownership of the trademark, but
also all previous implicit and explicit agreements between
parties.

The hypothetical case you wish to present would be dividing GNU
project and FSF, which also does not make sense.

Then I could give you other hypothetical example.

Please note that RMS is founder of the FSF, and hypothetically, with
help of few members, could also re-submit the Articles of Association
of the FSF and could make quite a new FSF structure.

Further, FSF is Foundation founded by RMS, there are certain moral and
legal obligations towards its founder.

That RMS is not President of the Foundation was a decision that had to
bring more good than bad for the Foundation itself, and due to
misunderstandings in public. Even if not engaged in daily decision
making, in my personal opinion and based on the Massachusets laws
where FSF was incorporated, RMS could insist on the influence or
policies of the FSF in such a way, that those hypothetical divisions
of the GNU project and FSF could be limited, or that other directions
of the FSF could be controlled as he wish.

> So - worst case - the FSF could revoke RMS's permission to use the GNU
> trademark and effectively remove him from the GNU project.

According to US laws on trademarks, that would be very hard. As number
one, the trademark was meant for GNU project, as I said there are
implicit and explicit agreements on that matter. Practically, that
hypothetical case would never happen, as it would be very much
contradictory to those legalities that you missed to take in
observation.

As GNU trademark is not enforced, and as so many people used GNU
improperly, and as FSF and GNU project are NOT for any kind of
"intellectual property protection", such protection that you mentioned
would not be possible legally. An entity could have a trademark, but
if not enforced over years, further enforcement would not be legally
possible.

To enforce trademark, trademark owner shall supervise, police, defend
the trademark over time. That is contrary to what essentially the FSF
and GNU are, so because trademark was not defended over time, it would
be very very questionable if your hypothetical case would ever have
any success.

The mission of GNU project is to break down the "intellectual
property" and not to enforce it. 

> I don't ever expect this to happen (and hope it doesn't) but I'm not
> going to agree that the FSF has "no say in how the project is
> governed" when they legally/effectively have the power to choose the
> leader.

FSF is a corporation, it acts by laws of Massachusets, and by its
By-Laws and various, whatever decisions and resolutions have been
entered into, implicit and explicit agreements, which all have taken
place in past. To have ownership of trademark is not the power to
choose the leader, as corporation cannot work contrary to its own
legal agreements.

I wish you would get advise by attorney.

I find it actually bad manners that you are hypothetically giving
readers of this mailing list an opportunity to divide FSF and GNU. You
said, you don't want that to happen, but then again, you are the one
presenting the opportunity to others.

> Perhaps remedying this is something that could be added to the
> governance discussion - how the GNU leader is chosen, what powers the
> FSF is required to cede, and how to enforce those.

GNU leader is not chosen, GNU leader decided himself to create GNU
project.

It was already said and resolved by the FSF itself that FSF has no
influence in the GNU project and upon GNU leadership.

Jean