Linux founder defends trademark action

Linux founder Linus Torvalds has defended his protection of the Linux trademark and claims that sublicensing the trademark is a loss-making operation.

Last month, a lawyer acting on behalf of Linus Torvalds wrote to 90 companies in Australia asking them to relinquish any legal claim to the name Linux and to purchase a licence from the Linux Mark Institute (LMI), a not-for-profit organisation which is the licensee for the Linux trademark. Companies will need to pay between $200 and $5,000 to sublicense the Linux trademark, which has led some in the open source community to accuse Torvalds of cashing in on the success of Linux.

Torvalds denied on Saturday that he or anyone else is making money from sublicensing the Linux trademark, as the legal costs are higher than the licence fees.

In a posting to the Linux Kernel Mailing List, Torvalds said: "Not only do I not get a cent of the trademark money but even LMI [which actually administers the mark] has so far historically always lost money on it."

He explained that the "cease-and-desist or sublicense the mark" letters are a requirement of maintaining a trademark. He highlighted a posting made to the mailing list in 2000, which explained why such letters are necessary.

"Trademark law requires that the trademark owner police the use of the trademark. This is nasty, because it means, for example, that a trademark owner has to be shown as caring about even small infringements, because otherwise the really bad guys can use as their defence that 'hey, we may have misused it but look at those other cases that they didn't go after, they obviously don't care'."

Torvalds' has also recently been accused of hypocrisy, with some in the open source community claiming his criticism of software patents is contradictory to his enforcement of trademarks. Torvalds did not comment on this issue in his mailing list posting but the founder of a prominent anti-software-patent site has leapt to his defence.

Florian Mueller, who campaigned against the EU software patents directive and was recently hailed as one of the most important people in intellectual property, said on Monday trademarks and copyright are different to software patents.

"Software patents are a power play that benefits anti-competitive forces and productless extortioners but copyright and trademarks generally reward those who create and market real products," said Mueller in a statement. "It's lawless and pointless to indiscriminately oppose intellectual-property rights."

Mueller warned that "anti-IP radicalism" could be detrimental to the image of open source. He claimed that some right wing politicians agree with Bill Gates' view that restricting intellectual-property rights is tantamount to communism, so it is important that the open source community disassociates itself from the viewpoint that it is against intellectual-property rights.

Ingrid Marson writes for ZDNet UK