Torvalds weighs in on Linux trademark row

Last month, a lawyer acting on behalf of Torvalds, wrote to 90 companies in Australia and asked them to relinquish any legal claim to the name Linux and to purchase a license from the Linux Mark Institute, a nonprofit organization that is the licensee for the Linux trademark.

Companies will need to pay between $200 and $5,000 to sublicense the Linux trademark, which 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 license fees.

"Not only do I not get a cent of the trademark money, but even (the Linux Mark Institute, which actually administers the trademark) has so far historically always lost money on it," Torvalds said in a posting to the Linux Kernel Mailing List.

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," Torvalds said in the earlier posting. "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 defense 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 that his criticism of software patents is contradictory to his enforcement of trademarks. Torvalds did not comment on this issue in his new posting to the mailing list, but the founder of a prominent anti-software-patent site defended Torvalds on the issue.

Florian Mueller, who campaigned against the European Union software patents directive and was recently hailed as one of the most important figures in intellectual property, said Monday that trademarks and copyright are different from 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," Mueller said 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 for the open-source community to disassociate itself from the viewpoint that it is against intellectual-property rights.

Ingrid Marson of ZDNet UK reported from London.