[chat] Re: NZ Company resuses to duplicate Knoppix CDs

["Marcel Kunath" <kunathma@xxxxxxx>]

Jon Biddell writes: 

> -=> So there is a non-compete clause. The clause probably
> -=> is there because they
> -=> may be sole producer for Microsoft software CDs in New
> -=> Zealand. The question
> -=> I ask myself is: If I am a major software manufacturer
> -=> and I give sole
> -=> rights of production to a company then maybe I want
> -=> this company in exchange
> -=> to give up the right to produce competing products.
> -=> Moral? I don't know.
> -=> Fact is that is probably the situation and it makes
> -=> sense from the business
> -=> point of view. 
>
> Leaving out the non-compete clause, WHAT COMPETITION ?  All they are
> doing is producing copies of a CD-ROM for a client - the contents of
> that CD-ROM are irrelevant to their business - in fact, provided
> they are assured that said CD-ROM contains nothing illegal, it is
> questionable whether they even have the right to know what's on
> there.

The content is irrelevant to the business? And we see how this works in the 
case of file sharing. Napster's defense was that the content of the files 
shared was irrelevant to them and it was the users' responsiblity to only 
share legal content. What happened? Napster got sued and died. Kazaa was 
sued and had to change locations. A business has to protect itself and even 
though you are correct that the business should be protected from this 
threat it is not happening. Judges around the world think the creators of 
file sharing software are at fault for rights violations. Hence a company 
duplicating images must be on their toes to what they duplicate. 

Plain ignorance of the issues is no protection. 

> Posting this wasn't meant to be M$ bashing, just pointing out a
> ridiculous business practice. 
>
> -=> I would enjoy a discussion how the following product is
> -=> in any way legal:
> -=>
> -=> http://www.lsl.com.au/reference/dual-linux-may03-note.php
> -=>
> -=> 1. It's a duplication of GPL code including trademarks. 
>
> Which , on teh face of it, appears to be legal (caveat: more
> research is required)

The GPL legalises the duplication of trademarks without permission? Where 
does it state this in the GPL? 

> -=> 2. It creates a new product based on two commercial
> -=> products (probably
> -=> without permission of the original owners) 
>
> Assumption: you don't know that the original copyright owners didn't
> give their permission.

I assume LSL doesn't have permission. You assume the opposite maybe. We may 
both be wrong. 

> And even if they didn't, I can't see that this isn't covered by the
> GPL.

You are telling me that the GPL overrides any trademark law which says 'an 
entity must have permission when using another company's trademark'? 

> -=> 3. It puts the two original products in direct
> -=> competition (This makes the
> -=> Microsoft non-complete clause seem reasonable to avoid
> -=> such acts.) which the
> -=> original owners may not have intended or given permission to. 
>
> Not necessarily correct - if places two 'competing' products on the
> same media, but does nothing as far as I can see to promote one over
> the other.

You are kidding. I wonder how Microsoft would feel if you took their IE 
browser and Mozilla browser and put them together on a CD with an installer 
and marketed this as Dual Browser. Or how about putting Photoshop and Gimp 
on one CD to install off. Same situation. 

I add 

4. The product is sold as Dual Linux and it is stated that this product is 
trademarked. Dual Linux is a trademarked product containing two other 
trademarked products (Red Hat Linux and Mandrake Linux). 

You think Red Hat or Mandrake gave LSL permission to trademark a product 
which has components that are already trademarked? 

> I have the same setup at home on my server - Mandrake and Redhat
> distros on the server for installation - I use SuSE for the server,
> Redhat for a 'crash and burn' box, and Mandrake for my 'production'
> workstation, and at work.

You use the product. You don't duplicate it and sell it for profit. Big 
difference. The rules people are bound to when using a product are different 
to the rules a business operates under when selling products for profit. 

> > To sum this up I can only agree with a duplication company asking
> questions
> > when they duplicate images. It is their business to ask the
> customer: Do you
> > own the rights to duplicate this image? Last I know all the Linux
> companies
> > selling duped CDs on the web never asked for the right to duplicate
> products
> > (trademarks contained within them).
>
> I disagree - their 'duty of care' would be limited to getting the
> client to sign an agreement releasing the company from any and all
> liability for any lawsuits, trademark infringements, etc. Of course,
> if the CDs are to be labelled, there would need to be discussion
> about trademarks, etc. 
>
> After all, when you look at what is being done, all they are doing
> is duplicating an "electronic image" - the company shouldn't care
> about, nor should it be held responsible for the contents of said
> image. 
>
> Different story if thew company itself was duplicati ng and selling
> illegal copies of things, as they would have to know the contents
> and would know that they were illegal.

As stated above, lawsuits have shown judges do not think so. (e.g. Napster, 
Kazaa) 

> A case, from the company's POV, of "ignorance is bliss". 
>
> > Which has a greater legal power? GPL or trademark law? More
> lawsuits to
> > come....
>
> Yes, most definately there needs to be a 'test case' - I'm not a
> practicing Lawyer (I was 15 years ago, but that's another story),
> and am not up on current legislation, but it would seem that all the
> company in question did was reject a valid customer request and give
> themselves a bad name in the process. 

I agree a test case is needed. I think it would bring the GPL in line with 
existing law which is desperately needed. 

Marcel