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Alexander Chamandy <bsdfreak@gmail.com> wrote:
> > The NetBSD Flag image was drawn as an entry in the NetBSD logo contest.
> > Ownership of the image was transferred to The NetBSD Foundation, and the
> > image and any parts thereof are Copyright (=A9) 2004 by The NetBSD
> > Foundation. All rights reserved. Non-commercial and personal use of the
> > image is permitted, provided that it remains unmodified. Mass
> > production, commercial use, or use of a modified copy of the image
> > requires explicit written permission. Permission may be obtained by
> > writing to The NetBSD Foundation at |<board@NetBSD.org
> > <mailto:board@NetBSD.org>>|."
>=20
> *Non-commercial and personal use of the
> image is permitted, provided that it remains unmodified.* =20
>=20
> How was BSDFreak's usage commercial?  We were donating *ALL* funds
> back to TNF, not to mention, BSDFreak is not a for-profit site.  All
> funds generated by BSDFreak by advertising or BSDFreak's own
> merchandise sales are used for operational costs, promotions and
> donated back to the community accordingly.

IANAL, but it seems to me that using funds generated through the use of
a copyrighted image to promote one website and to continue operating the
site through which said image is sold does not constitute personal use
and could very well be interpreted as commercial use.

Be that as it may, I'd like to comment on what the situation looks like
to me:

(1) BSDFreak set up and operates an online store at Cafepress.
    Cafepress has specific terms of service, among them

``When you registered to use the CafePress.com Service, you agreed to
all of the terms and conditions of the Terms of Service.  The Terms of
Service sets forth various rules that govern your use of the
CafePress.com Service.  The two most important are: You will ONLY use
content that you own or have the right to use.  You will not otherwise
infringe the intellectual property rights of a third party.''

(2) As pointed out above, The NetBSD Foundation is the sole copyright
    holder of the image in question.

(3) The NetBSD Foundation sets up their own Cafepress store.

(4) The NetBSD Foundation learns about BSDFreak's use of the logo and
    contacts BSDFreak.  The email suggest that if BSDFreak wants to
    continue to use the image in question, BSDFreak should contact The
    NetBSD Foundation.

(5) BSDFreak first responds that they will contact The NetBSD Foundation
    regarding collaboration.

(6) BSDFreak then responds that they will not want to collaborate and
    removes items with the image in question.

I believe that these are the facts that we can agree on.

Unfortunately, as is often the case in non-person-to-person
communication (well, and in person-to-person communications as well ;-),
there appear to be a number of misunderstandings.

One of the main misunderstandings appears to be the email sent to
BSDFreak on behalf of The NetBSD Foundation.  This email did stress the
fact the The NetBSD Foundation would like to enter a cooperation with
Cafepress.  Nowhere in the email are details of such a cooperation
mentioned.

BSDFreak's assumption that -- as you say in another email -- ``the
outcome would be [...] a) price fixing or b) elimination of NetBSD
merchandise'' is unfortunate and overhasty.  To me it seems like
somebody jumped the gun and took a very defensive stance when there
really could have been a collaboration.

Maybe the email sent by The NetBSD Foundation should have included lots
of friendly smileys (such as this one, right here: :-)) to increase the
likeliness of a positive reception, but the wording does not -- to me --
seem particularly unfriendly, rude or threatening in any way.

The NetBSD Foundation does appreciate advocacy efforts by all people,
and is glad to see users spread the name of NetBSD.  However, the rules
of copyright force The NetBSD Foundation to follow up on every use of
their copyrighted ``materials'', be they images or code.

Your argument that because -- supposedly -- The NetBSD Foundation
``cannot litigate'' their trademarks and copyrights, it's acceptable to
violate them does not seem very convincing.  By this arguing, The NetBSD
Foundation should not insist on other software companies abiding by the
BSD license, since they (TNF) -- supposedly -- can not litigate any
violations.

Anyway, I see that Hubert already replied, too, trying to pick up talks
about a collaboration, and I hope that you (and anybody else reading)
will understand the point of The NetBSD Foundation.

-Jan (on behalf of me, myself and I, representing me, myself and I, and
not providing any opinions other than my own)

P.S.: Here's a smiley, just to make this lengthy email look happier: :-)

--=20
"The last time anybody made a list of the top hundred character
attributes of New Yorkers, common sense snuck in at number 79."

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