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From Matthew Foley <ma...@yahoo-inc.com>
Subject Re: Defining Hadoop Compatibility -revisiting-
Date Tue, 17 May 2011 09:19:08 GMT
TESS only has "registered" trademarks -- that's the kind of trademark you put an "(R)" next
to.
But you can have an ordinary unregistered trademark -- the kind you put a "tm" next to --
just by claiming it, and then promoting and defending it.

In the second paragraph of our bylaws<http://hadoop.apache.org/bylaws.html> we claim:
      The foundation holds the trademark on the name "Hadoop" and copyright on
      Apache code including the code in the Hadoop codebase.
In the LICENSE.txt file in our distribution, clause 6 of the Apache License states,
      6. Trademarks. This License does not grant permission to use the trade
      names, trademarks, service marks, or product names of the Licensor,
      except as required for reasonable and customary use in describing the
      origin of the Work and reproducing the content of the NOTICE file.
Very important!  This exclusion of trademarks from the opensource license is normal
and appropriate, precisely because it is the primary tool for preventing confusion and
fragmentation in an opensource marketplace.

However, we also have to promote and defend the trademark.  I'll leave it up to the
lawyers to define exactly what that means, but it does take some effort.  We should
probably use the "tm" annotation in our logo GIFs and our primary market-facing
documents (not so much in the code).  Perhaps the PMC or Apache Board can ask some
of our sponsor organizations to help out with some techdocs and trademark legal review
assistance.  It's not really a topic for us lay people to argue over, it just wastes time.

WRT Scott's comments below, understand that trademark lawyers love to talk about using
trademarks only as "modifiers", i.e., essentially as adjectives.  We shouldn't say "Chevrolet"
as a thing, we should say "Chevrolet (tm) cars".  There are many kinds of cars, and "Chevrolet"
is a mark distinguishing THIS kind of car from the others.  You can't trademark THINGS, you
can only trademark DISTINGUISHING MARKS that differentiate things in the marketplace.
And it has nothing to do with the underlying technology.

So here are three statements I believe to be true:

1. We should defend against the usage "Apache Hadoop", "Cloudera Hadoop",
"Yahoo Hadoop", and "EMC Hadoop".  This would imply that Hadoop was a THING,
and those other words -- all trademarks! -- are the modifiers.  Not acceptable.

2. If the PMC chooses to, it is okay to allow usages like "Cloudera distribution of
Hadoop", "Yahoo distribution of Hadoop", and "EMC distribution of Hadoop", or even
"powered by Hadoop", "built on Hadoop", "Hadoop inside", or whatever, where
"Hadoop" is understood to mean "Hadoop distributed computing platform"
(as opposed to other kinds of distributed computing platform product).
ALL of those usages are claiming to "be Hadoop" in some sense, so they are
protected by the trademark on "Hadoop".  Therefore, they can only be used if each
of those companies obtain a license from Apache to use the Hadoop trademark,
which should include an agreement about correct use of the mark.  And currently
they DON'T have such a license, because the Apache License specifically excludes
trademarks!

3. If other companies choose to sell distributed computing platform products that
are NOT named "Hadoop", but their marketing literature says these products are
"compatible with Hadoop" while also making clear that they are not Hadoop and
don't claim to be Hadoop -- we probably can't do anything about it.  Claims of
compatibility are generally protected for the sake of competition in the marketplace.

If We-The-Community can come to an agreement about what compatibility means,
we can build it into the license to use the "Hadoop" trademark (as in #2 above), then
enforce it with peer pressure and market rejection of non-conforming products (#3).
But the only real help from the law will be in distinguishing case #2 from case #3.

--Matt
"I am not a lawyer, the above is just my opinion, and does not represent the opinion of my
employer."


On May 16, 2011, at 6:12 PM, Scott Carey wrote:

On trademarks, what about the phrase:  "New distribution for Apache
Hadoop"?  I've seen that used, and its something that replaces most of the
stack.  I believe "Apache Hadoop" is trademarked in this context, even if
Hadoop alone isn't.
"Compatible with Apache Hadoop" is a smaller issue, defining some rough
guidelines for various forms of compatibility is useful for the community
(and reputable vendors), abuse of that will at least become obvious.  But
"distribution for Apache Hadoop" (not too sure what 'for' means here)?  Is
there any TM protection?  A proprietary derivative work with most of the
guts replaced is not an Apache Hadoop distribution, nor a distribution for
Apache Hadoop.

On 5/16/11 5:40 PM, "Segel, Mike" <msegel@navteq.com<mailto:msegel@navteq.com>>
wrote:

I just checked... TESS said no trademarks for Hadoop.
So... what TM protection? :-)

You are correct about derivative works. It's a moot point as long as the
derivative work follows the T&Cs...



Sent from a remote device. Please excuse any typos...

Mike Segel

On May 16, 2011, at 4:18 PM, "Matthew Foley" <mattf@yahoo-inc.com<mailto:mattf@yahoo-inc.com>>
wrote:

It's important to distinguish between the name "Hadoop", which is
protected by trademark law,
and the Hadoop implementation, which is licensed as opensource under
copyright law.

The term "derivative work" is, I believe, only relevant under copyright
law, not trademark law.
(N.B., I'm not a lawyer -- and this email is my opinion, not my
employer's.)  Since the Apache License
explicitly allows derivative works, I don't think it's a useful term
for this discussion.

However, the ASF, and by delegation the Hadoop PMC, has a lot of
control over the name,
and how we allow it to be used, under trademark law.  But to keeps our
rights under that
law, we have to enforce the trademark consistently.  So it's good that
we're having this discussion,
and it's important to reach a conclusion, document it, and enforce it
consistently.

There are a lot of subtleties; for instance, if I recall correctly from
my days with Adobe and
PostScript(R), someone who has not licensed a trademark "X" can still
claim "compatible with X"
as long as they ALSO make clear that the product is NOT, itself, an
"X".  But you really need
a lawyer to get into that stuff.

--Matt


On May 16, 2011, at 5:00 AM, Segel, Mike wrote:

But Cloudera's release is a bit murky.

The math example is a bit flawed...

X represents the set of stable releases.
Y represents the set of available patches.
C represents the set of Cloudera releases.

So if C contains a release X(n) plus a set of patches that is contained
in Y,
Then does it not have the right to be considered Apache Hadoop?
It's my understanding is that any enhancement to Hadoop is made
available to Apache and will eventually make it into a later release...

So while it may not be 'official' release X(z), all of it's components
are in Apache.
(note: I'm talking about the core components and not Cloudera's
additional toolsets that encompass Hadoop.)

Cloudera is clearly a derivative work.
And IMHO is the only one which can say ... 'Includes Apache Hadoop'.

That doesn't mean that others can't, depending on how they implemented
their changes.
Based on EMC marketing material, they've done a rip and replace of HDFS.
So it wouldn't be a superset since it doesn't contain a complete
subset, but contains code that implements the API... So they can't say
'Includes Apache Hadoop',but they can say it's a derivative work based
on Apache Hadoop and then go on to show how and why, in their opinion
their product is better.(that's marketing for you...)

Clearly there are others out there...
Hadoop on Cassandra as an example...

Fragmentation of Hadoop will occur. It's inevitable. Too much money is
on the table...

But because Apache's licensing is so open, Apache will have a hard time
controlling derivative works...
I believe that Steve is incorrect in his assertion concerning potential
loss of any patent protection. Again Apache's licensing is very open and
as long as they follow Apache's Ts and Cs, they are covered.

Note: because I am sending this from my email address at my client, I
am obliged to say that this email is my opinion and does not reflect on
the opinion of my client...
(you know the rest....)

Sent from a remote device. Please excuse any typos...

Mike Segel

On May 16, 2011, at 6:02 AM, "Steve Loughran"
<stevel@apache.org<mailto:stevel@apache.org>> wrote:

On 13/05/11 23:57, Allen Wittenauer wrote:

On May 13, 2011, at 3:53 PM, Ted Dunning wrote:

But "distribution Z includes X" kind of implies the existence of some
such
that X != Y, Y != empty-set and X+Y = Z, at least in common usage.

Isn't that the same as a non-trunk change?

So doesn't this mean that your question reduces to the question of what
happens when non-Apache changes are made to an Apache release?  And
isn't
that the definition of a derived work?


Yup. Which is why I doubt *any* commercial entity can claim "includes
Apache Hadoop" (including Cloudera).



but they can claim it is a derivative work, which CDH clearly is,
(Though if we were to come up with a formal declaration of what a
derivative work is, we'd have to handle the fact that it is a superset.
Even worse, you may realise a release is the ordered application of a
sequence of patches, and if the patches are applied in a different order
you may end up with a different body of source code...)

Something that implements the APIs may not be a derivative work,
depending on how much of the original code is in there. You could look
at the base classes and interfaces and produce a clean room
implementation (relying on the notion that interfaces are a list of
facts and not copyrightable in the US), but whoever does that may
encounter the issue that Google's donation of the right to use their MR
patent may not apply to such implementations.


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The information contained in this communication may be CONFIDENTIAL and
is intended only for the use of the recipient(s) named above.  If you are
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its contents, is strictly prohibited.  If you have received this
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