In a move that was originally considered controversial in the open source community, Linus Torvalds, the creator of the Linux operating system, has begun protecting his trademark for the term "Linux." The computer genius says he is doing so to protect users from unauthorized and confusing use of the term. But critics are worried that Torvalds' move is too little, too late, because the Linux name has been widely used for over a decade. Torvalds first trademarked Linux several years ago but has rarely defended its usage.
News of the sudden trademark protection arose after several computer firms in Australia were contacted recently by lawyers acting on behalf of Torvalds. Companies using the name Linux in their products or company names would have to relinquish any legal rights to the name and pay licensing fees for its use, they were told by letter. Many of these companies originally suspected that the letters they received about this event were fake, and were perhaps a money-making attempt from some unscrupulous person.
When Torvalds revealed that the letters were real, many in the open source community acted with outrage, shocked that Torvalds would seek to benefit financially from the Linux trademark. But Torvalds reported that the licensing fees don't even cover the operational costs of the legal entity, Linux Mark Institute (LMI), which he has set up to license the trademark. So it's not a money-making venture at all. According to Torvalds, LMI is the "worldwide exclusive licensee of the Linux trademark for the purposes of protecting that trademark from misuse." And even if LMI does make money, Torvalds says he "won't see a cent of it."
The licensing fees for Linux are modest. LMI is charging $200 to $5000 for each license, and the fee is based on "the sub-licensee's projected revenue in connection with the sub-licensee mark(s)," according to the company. Most sub-licensees end up paying $200 to $500 for a Linux license, says Jeremy Malcolm, an Australian lawyer representing LMI and Torvalds.
Now that the letters have been proven legitimate, most Linux companies have enthusiastically agreed to the licensing terms. And of course, Torvalds is wise to protect his Linux trademark, because otherwise the term could be misused by other companies and thus lost forever. "Trademark law requires that the trademark owner police the use of the trademark," he wrote in a posting online this week. "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.'"
