34

Suppose somebody downloaded a Linux distro, like Ubuntu. Suppose further modify one piece of it, say the Window Manager.

Would it be perfectly legal for them to sell copies of this slightly modified version of Ubuntu (let's call it Mubuntu = Modified Ubuntu)?

What if they made the new window manager portion closed source? Would it still be legal to sell?

George
  • 1,799
  • 2
  • 25
  • 30
  • 17
    I think it would even be legal to sell unmodified versions of Linux, you'd just need to include all the source and it wouldn't be particularly profitable (why buy something that's free elsewhere?). – Centimane Sep 07 '16 at 20:00
  • 4
    This is a case @KhirgiyMikhail described. One of good samples - RedHat. They sell their RHEL. To be precise, they sell support to enterprise level customers – Serge Sep 07 '16 at 20:17
  • @Dave Of course, they do alot for OpenSource development, but not all the code they sell is authored by them – Serge Sep 07 '16 at 20:20
  • @Serge in RHEL's case they aren't really selling the OS, but support for it. I don't think there is a legal claim for 'pirating' RHEL. Sure, RHEL only distributes it themselves to people who buy support, but I'm not sure RHEL is considered proprietary is it? – Centimane Sep 07 '16 at 20:24
  • @Serge I guess CentOS takes out licensed data before redistributing it (which I think is really just logos and the name) so that might mean RHEL itself is proprietary. – Centimane Sep 07 '16 at 20:25
  • @Dave I doubt it is proprietary. I recently had to do a lot of kernel hacking and debugging specifically with RHEL6.x and I got the sources from publicly available redhat ftp site. RHEL7 was available there too. No cd images, though – Serge Sep 07 '16 at 20:29
  • 1
    @Serge The RHEL repos would be publicly available so that people can use the online repos for installing/updating software (it would suck if `yum install $package` had you login to the RHEL customer portal). It's open availability would be for the sake of their users, at the expense of protecting their product. (so it doesn't disprove that it's proprietary) – Centimane Sep 07 '16 at 20:35
  • 21
    Back before broadband internet was widely available there were companies in the business of selling CDs with a copy of a linux distro on them for the benefit of people not willing to spend a day downloading it via dialup internet. – Dan Is Fiddling By Firelight Sep 07 '16 at 20:43
  • @Dan I bought RedHat 5.1 on cd in 95' +- a year due to exactly this reason. – Serge Sep 07 '16 at 21:12
  • @Dave I mean the source packages, not binary – Serge Sep 07 '16 at 21:12
  • 1
    @Dave RHEL repositories aren't publicly available, but RHEL is free software with no proprietary bits. – Stephen Kitt Sep 07 '16 at 21:28
  • Zorin does it, so I hope it's legal. – Menasheh Sep 07 '16 at 22:15
  • 10
    Would this question not be better suited to https://opensource.stackexchange.com/ or https://law.stackexchange.com? – kojiro Sep 08 '16 at 01:11
  • @kojiro It fits [Open Source.SE](https://opensource.stackexchange.com/) better than [Law.SE](https://law.stackexchange.com/), but it fits better here than at Law, and Open Source is still a beta site. George, if you want to move it, you can click Flag to request a moderator do so, but you don't have to. – WBT Sep 08 '16 at 13:27
  • once I have been flagging a Q that was completely related to softwarerecs SE site for migration . I have been requested by @Gilles not to do SO per UL terms: if the question is related to Unix/Linux then that question is completely fine on UL. – Serge Sep 08 '16 at 14:26
  • Better legal minds than mine have pondered [similar legal questions](https://en.wikipedia.org/wiki/SCO_Group,_Inc._v._International_Business_Machines_Corp.)... – user3490 Sep 08 '16 at 16:29
  • Umm.... I don't think you can *sell* freeware or freeware derivatives. – EKons Sep 09 '16 at 11:59
  • You should either focus on what name you want to use, or the "can i modify and sell it" part. Not both. – Thorbjørn Ravn Andersen Sep 09 '16 at 15:45
  • @ΈρικΚωνσταντόπουλος Of course you can, [the FSF even recommend software companies to do it if they can.](https://www.gnu.org/philosophy/selling.html) – jlliagre Sep 10 '16 at 12:49
  • I'm voting to close this question as off-topic because it has really nothing to do with Unix/Linux directly, and is a licensing & legal question more than anything, and the audience of users here is not the correct group to be asking. – slm Sep 10 '16 at 13:30

4 Answers4

55

Would it be perfectly legal for them to sell copies of this slightly modified version of Ubuntu (let's call it Mubuntu = Modified Ubuntu)?

No. While the software licenses may allow you to do this, the trademark license does not:

Any redistribution of modified versions of Ubuntu must be approved, certified or provided by Canonical if you are going to associate it with the Trademarks. Otherwise you must remove and replace the Trademarks and will need to recompile the source code to create your own binaries. This does not affect your rights under any open source licence applicable to any of the components of Ubuntu. If you need us to approve, certify or provide modified versions for redistribution you will require a licence agreement from Canonical, for which you may be required to pay. For further information, please contact us (as set out below).

and

You will require Canonical’s permission to use: (i) any mark ending with the letters UBUNTU or BUNTU which is sufficiently similar to the Trademarks or any other confusingly similar mark, and (ii) any Trademark in a domain name or URL or for merchandising purposes.

You would be allowed to sell an unmodified version of Ubuntu, you would be allowed to sell a heavily modified version of Ubuntu that no longer mentions the Ubuntu name, but for this slightly modified version of Ubuntu, you need an agreement with Canonical.

hvd
  • 1,895
  • 1
  • 14
  • 16
  • 2
    Until the learn that it is preferable to the word `guilty`, followed by a big fine :-) Yup, you are correct – Mawg says reinstate Monica Sep 08 '16 at 12:07
  • 4
    I would also mention that other distros do not necessarily have these trademark issues. – Gilles Sep 08 '16 at 15:23
  • @Gilles Sure, and other distros might have other issues that Ubuntu doesn't have, for instance if they include proprietary software by default. Changing the question may change the answer, in either direction. :) – hvd Sep 08 '16 at 16:55
  • Ubuntu was just an example... – Cypher Sep 08 '16 at 17:21
  • 6
    This part of Canonical's claim is false: "and will need to recompile the source code to create your own binaries." If they're actually trying to impose that condition on binaries of GPL'd software, they're infringing. They cannot limit your ability to copy and distribute binaries as long as you follow the terms of the GPL. – R.. GitHub STOP HELPING ICE Sep 08 '16 at 20:29
  • 3
    The answer is overall correct that you cannot advertise the resulting product as Ubuntu (or using modified versions of the trademark), but if Ubuntu is claiming they can bypass the GPL by putting the name Ubuntu somewhere in their binaries, they're badly mistaken and infringing. – R.. GitHub STOP HELPING ICE Sep 08 '16 at 20:33
  • 1
    @R..: They're right, you're wrong, at least for any GPL v3 software in the distribution. [The license](https://www.gnu.org/licenses/gpl-3.0.en.html) says that "Notwithstanding any other provision of this License, for material you add to a covered work, you may (if authorized by the copyright holders of that material) supplement the terms of this License with terms: ... e) Declining to grant rights under trademark law for use of some trade names, trademarks, or service marks" – Ben Voigt Sep 08 '16 at 21:47
  • 1
    @BenVoigt: There's plenty of GPLv2-only (not "v2 or later") code in an ordinary distribution to which that text does not apply. Also, I don't see where declining to grant trademark license exempts you from the terms of the GPLv3 that require you allow conveying the work to others. Trademark license or lack thereof just controls how you can promote the product, not whether or not you can copy/convey it. – R.. GitHub STOP HELPING ICE Sep 08 '16 at 21:52
  • How would you be able to legally sell an unmodified version? It says that at the end. I am curious. – ZaxLofful Sep 08 '16 at 23:02
  • @Lofful It's not because it is somehow inherently legal, but simply because Canonical says it is allowed: "You can redistribute Ubuntu in its unmodified form, complete with the installer images and packages provided by Canonical (this includes the publication or launch of virtual machine images)." – hvd Sep 09 '16 at 05:18
  • 3
    @R..: "Also, I don't see where declining to grant trademark license exempts you from the terms of the GPLv3 that require you allow conveying the work to others." - The trademark rule is under a list of things you can do ["\[n\]otwithstanding any other provision of this License"](https://www.gnu.org/licenses/gpl-3.0.en.html#section7), and since Ubuntu contains its own name and logo, it's pretty clear that you can prohibit using that name and logo in a modified copy of the OS. – Kevin Sep 09 '16 at 07:02
  • 2
    @Kevin: So it seems what they're doing may be permissible with GPLv3, but most certainly not with GPLv2 which forbids any additional restrictions. So are there GPLv2 components to which they added Ubuntu trademark branding? Likely the kernel (but kernel folks generally don't care about GPL enforcement), maybe other things too. – R.. GitHub STOP HELPING ICE Sep 09 '16 at 14:20
  • 2
    @R.. "some licenses say that they don't give you permission to use certain trademarks. That's not really an additional restriction: if that clause wasn't there, you still wouldn't have permission to use the trademark. We always said those licenses were compatible with GPLv2, too." -- https://www.gnu.org/licenses/quick-guide-gplv3.html – hvd Sep 09 '16 at 14:39
  • 2
    @hvd: The FSF has a habit of retroactively changing what they think the GPLv2 means as it suits them. As the author of GPLv2-licensed software, though, I would certainly consider it infringement for someone to tack on their own trademarks in order to make a derived work that's not freely distributable without extricating it from the trademark-encumbered additions (and rebuilding from source, which may be difficult), and I would ask the party doing so to either remove the encumbered parts or allow free distribution per the GPLv2. – R.. GitHub STOP HELPING ICE Sep 09 '16 at 14:43
  • The packages itself, if you do not recompile or at least repackage them, will probably have metadata that mentions "ubuntu". And plop, there's your trademark issue. – rackandboneman Sep 09 '16 at 23:19
  • Note that in addition to the name (as @hvd explains in his answer), you'll have to replace all graphics (like application icons) which Canonical holds a trademark to. This certainly can be done, e.g. check out Firefox clones like Iceweasel or Pale Moon, but the task is far from trivial. If you want in addition to make your portion closed-source, you'll have to completely redesign it rather than modify a (presumably) GPL app which has to remain open-source as per GPL license. – Dmitry Grigoryev Sep 09 '16 at 07:27
22

Yes, provided that you satisfy license conditions of all packaged software (ship the source code, etc.) and don't violate any trademarks, copyright laws, etc. Also, you must make sure that your action would make no harm to any third party person like murder, etc.

The closed source software included should not violate licenses of any libraries it uses (some licenses allow binary dependency of closed source software, some not).

Serge
  • 8,371
  • 2
  • 23
  • 28
  • 5
    **Please** read [hvd's answer](http://unix.stackexchange.com/a/308580/49371)'s note about Trademarks. The name thing wasn't the core of the question, but it's still part of it. – mgarciaisaia Sep 08 '16 at 14:15
  • 2
    I did already. When you are going to sell something you always have to check legality of trades you are going to conduct with international and local legislation. The trademark topics are a part of necessary checks. – Serge Sep 08 '16 at 14:20
  • For me its obvious thing that should not be even asked, like, is murder legal? – Serge Sep 08 '16 at 18:46
  • If you believe the OP shouldn't have asked one of his questions in the first place, you should clearly state it in your reply. As your reply is written, you seem to agree with the obvious trademark violation. – jlliagre Sep 10 '16 at 13:29
18

As Serge mentioned, yes. However, you cannot modify parts that are GPL (the window manager is GPL) and then close source it. You cannot even use GPL libraries in closed source code. So the answer should actually be, NO as if you close source a major part of the system or desktop, by the time you are in the free and clear of GPL, it will have nothing to do with Ubuntu anymore. Additionally, I believe you need explicit permission from Canonical to use a word like Mubuntu. The question is really complicated. You need to do a lot of research and probably hire a lawyer if you were to do such a thing.

UPDATE

I thought I would update the question because the comments are getting very long on the topic of whether or not you can use GPL libraries in closed source code. LGPL permits this*, GPL does not**. From the authority on the subject gnu.org/licenses/why-not-lgpl.html :

... using the Lesser GPL permits use of the library in proprietary programs; using the ordinary GPL for a library makes it available only for free programs.

However, since most libraries are LGPL these days, the OP may not have as hard of a time as I originally thought.

* There are still certain conditions that need to be followed in order to use LGPL libraries.

** There are certain cases where you can use a GPL library in closed source code, such as if the software is not publicly distributed and if using the library is not considered a modification or derivative work (e.g., prelinking).

Paul Nordin
  • 1,202
  • 1
  • 10
  • 12
  • 2
    per OP they made a new window manager, I assume brand new. – Serge Sep 07 '16 at 19:41
  • @Serge Oh, I see. I read it as modified window manager for some reason. However, it would be pretty difficult to write a closed source window manager without having to rewrite a lot of other stuff. For example, wouldn't a closed source window manager contaminate Unity's GPL license? – Paul Nordin Sep 07 '16 at 19:48
  • Even portion of a WM may be close-sourced if that code is an .so, a kind of plugin, for example (if the WM's license permits of course) – Serge Sep 07 '16 at 19:49
  • It's worth noting though that if the OP is happy for their modified window manager to be open source, they are allowed to sell the modified version: https://www.gnu.org/licenses/gpl-faq.en.html#DoesTheGPLAllowMoney – James_pic Sep 07 '16 at 20:39
  • `it would be pretty difficult to write a closed source window manager without having to rewrite a lot of other stuff` - open source people do it regularly singlehandedly (one person) - Gnome, KDE, both were basically from scratch and not directly descended from twm, WindowMaker etc. Heck people even write window managers for systems with no underlying support for window managers like Ventus which runs on web browsers. In fact, this is exactly the path taken by Apple. OSX is an open source OS (BSD license) running a closed source window manager – slebetman Sep 07 '16 at 23:59
  • 1
    @slebetman Yea, and it took years and years and years for those products to become what they are today. OSX is NOT a comparable example. The BSD license is vastly different than GPL. BSD basically says do whatever, we don't care, just don't blame us. GPL tries to preserve certain "freedoms" and is far more restrictive. – Paul Nordin Sep 08 '16 at 00:43
  • @PaulNordin: But it is comparable to the Linux situation which allows closed source programs to execute and be managed by the kernel and also to X-Windows which allows closed source programs to use it (see CDE). Also, to claim that an x year old software takes x years to develop to what it is today is true for anything. That does not disprove the fact that people can write a window manager under X from scratch in a few months. – slebetman Sep 08 '16 at 03:09
  • 2
    I'm pretty sure you can use GPL libraries from closed code, providing they are not statically linked, you are not distributing them, or you are distributing them within their terms. Just about everything in a whitegoods store has GPL'd code in it somewhere. It is not acceptable to pass through distribution either (e.g. ship ubuntu binaries and relying on Canonical to support is a no-no). – mckenzm Sep 08 '16 at 03:48
  • @slebetman X has an MIT license so yes, that is true. I am not saying that you can't write a window manager quickly, rather, that there is a good chance that GPL will creep up on them and they may end up rewriting a lot more than they bargained for. What are the repercussions, if any, of shipping a closed source WM with a GPL/LGPL Desktop like Gnome or Unity? The LGPL part of the license permits use of their libraries in closed source applications, but what about the other way around when the GPL DE relies on the WM to work? I have no idea. – Paul Nordin Sep 08 '16 at 03:48
  • 4
    @mckenzm I think that only applies to LGPL libraries with exception to the case where you are not distributing (either can be used). – Paul Nordin Sep 08 '16 at 03:59
  • @PaulNordin: The reverse is the same issue as running GPL software like GIMP on Windows - it's already covered by GPL. – slebetman Sep 08 '16 at 07:29
  • 1
    There are two questions. For the question in the topic(about selling modified linux) the answer is **yes**, and this answer is wrong about that, so -1. There were/are companies selling cds/dvds of *unmodified* linux distros, and modified one is as good. RHEL is another example. You can make perfectly fine business selling GPL software, it's just that it works differently than with properiarity. The answer is no when it comes to mubuntu, but that's other thing. – MatthewRock Sep 08 '16 at 13:31
  • @MathewRock My answer started with a Yes (Serge had the yes answer covered and I acknowledged that), but I followed with an if ... No to answer the final question ... this was meant to express the complexity of the question as it is not a black and white answer (neither yes nor no can be concluded from the info we have from the OP). Your examples all talk about companies that did NOT close source anything. Selling is irrelevant in GPL. How you distribute is what matters. – Paul Nordin Sep 08 '16 at 20:03
  • See: [Licence for open-source code which is part of proprietary code?](http://opensource.stackexchange.com/a/2901/407) (The same code could be used by you under your proprietary license or by others under the GPL), so my understanding is that you can use GPL libraries in closed source code. – kenorb Sep 10 '16 at 11:55
  • @kenorb "... using the Lesser GPL permits use of the library in proprietary programs; *using the ordinary GPL for a library makes it available only for free programs*." - https://www.gnu.org/licenses/why-not-lgpl.html – Paul Nordin Sep 10 '16 at 20:49
0

Suppose somebody downloaded a Linux distro, like Ubuntu. Suppose further modify one piece of it, say the Window Manager.

No, you can't because there are some projects protected by Canonical , but if you need to contribute you need to sign Canonical’s contributor agreement :

The following projects are covered by Canonical’s contributor agreement. If you want to contribute to any of the projects below, please contact the project contacts listed in the third column.

In order to contribute, you need to sign Canonical’s contributor agreement.

Would it be perfectly legal for them to sell copies of this slightly modified version of Ubuntu (let's call it Mubuntu = Modified Ubuntu)?

What if they made the new window manager portion closed source? Would it still be legal to sell?

You can't do it without the permission of Canonical:

Restricted use that requires a trademark license

Permission from us is necessary to use any of the Trademarks under any circumstances other than those specifically permitted above. These include:

  • Any commercial use

  • Use on or in relation to a software product that includes or is built on top of a product supplied by us, if there is any commercial intent associated with that product.

  • Use in a domain name or URL.

  • Use for merchandising purposes, e.g. on t-shirts and the like.

  • Use of a name which includes the letters BUNTU in relation to computer hardware or software.

  • Services relating to any of the above.

Community
  • 1
GAD3R
  • 63,407
  • 31
  • 131
  • 192