But it takes a long time. And it's very costly (especially against a much larger entity like Amazon). Legal battles alone will rarely save you (in time).
If I sell my Toyota car on the side of the road I can call it a Toyota. If I sell you ElasticSearch(tm) Service which is the actual ES code base, what’s the infringement?
> If I sell you ElasticSearch(tm) Service which is the actual ES code base, what’s the infringement?
A reasonable consumer or customer might be confused into thinking a service named ElasticSearch(tm) Service is being provided by the company behind ElasticSearch. This confusion is exactly what trademarks rather than copyrights are meant to prevent.
The trademark law doctrine of nominative fair use allows you to describe your product as a hosted version of the ElasticSearch codebase, which provides the substance of the right you were describing, and it's also why you can describe the Toyota car you're selling as a Toyota, both without needing permission from a rights holder.
In the car case, you can also reference the product by name as a Toyota product because it is the same product Toyota sold, just being resold by you. But in the hosted service case, you're not reselling the same service as Elastic does; you're offering your own independent version of the service, backed by their technology. To prevent unwarranted damage to Elastic's reputation from any weaknesses in your service's reliability, customer support, or other factors, trademark law doesn't let you call your service ElasticSearch Service without their permission.
This works similarly for lots of software products and services, even other free and open source software projects. Debian has a trademark policy and exercises oversight of modified / derived / integrated versions shipped by the major public cloud providers to make sure that it's consistent enough with Debian's software freedom values, expected functionality, and quality standards to be called Debian, using trademark rights as the way they have that leverage.
At the same time, the cloud providers do not need trademark permission from Debian to redistribute unmodified official Debian images under the name Debian, or to derive from them without using Debian in the product name. (As with the ElasticSearch example, they can still use the word Debian in a fair and accurate way when describing the nature of any derived product they make without trademark permission.)
> A reasonable consumer or customer might be confused into thinking a service named ElasticSearch(tm) Service is being provided by the company behind ElasticSearch. This confusion is exactly what trademarks rather than copyrights are meant to prevent.
> you're not reselling the same service as Elastic does; you're offering your own independent version of the service, backed by their technology. To prevent unwarranted damage to Elastic's reputation from any weaknesses in your service's reliability, customer support, or other factors, trademark law doesn't let you call your service ElasticSearch Service without their permission.
I don’t know. The orginal AWS-hosted Elastic Search product was the elastic search code, hosted by AWS. That’s fundamentally the same thing. Maybe the exact wording matters and the service name was “AWS managed elastic search” or whatever. I’m sure the Amazon lawyers knew how to name it.
This feels analogous to “Amazon Linux” where it’s clearly Amazon’s version of Linux (which is also a trademark). Or “hosted postgres” or “Postgres compatible RDS” or any number of other services based on OSS.
> The orginal AWS-hosted Elastic Search product was the elastic search code, hosted by AWS. That’s fundamentally the same thing.
It isn’t, though, when comparing it to the ElasticSearch service offered by Elastic the company. Using the same codebase is very different than offering the same service. At minimum, pricing, billing, support, legalese, etc will all vary between the two. Downsides in Amazon’s service shouldn’t be misattributed to Elastic the company without Elastic’s permission, and trademark law quite rightly seems this more likely if Elastic trademarks are in the name of the product.
As for RDS’s PostgreSQL version, I presume the lawyers very carefully made sure it was called Amazon RDS for PostgreSQL (as indeed it is) and not PostgreSQL for Amazon RDS or PostgreSQL, Amazon RDS Edition or PostgreSQL on Amazon Web Services. Wouldn’t any of these last three names quite reasonably make a lot of people blame the PostgreSQL project rather than Amazon for any failings? Doubly so if the PostgreSQL project offered their own managed service on AWS, as Elastic does.
And as for Amazon Linux, I can think of a bunch of ways they might be operating legally in this regard, but a key one is that they probably have explicit permission from the Linux Foundation or Linux Torvalds to do as they do; in any case, the Linux Foundation and Linus Torvalds are both highly unlikely to sue Amazon for this usage regardless of the legalities, for purely pragmatic reasons that have nothing to do with whether a judge or jury would take the lawsuit seriously, and that don’t apply to companies like Elastic.
Slightly off topic but it saddens me that so much time money and effort from incredibly smart people is spent on this bullshit.
No reasonable person is going to think that “Postgres for Amazon RDS” would be materially different to “Amazon RDS for Postgres”. It’s absolute insanity that so much time effort and money is spent on this in so many places to try and skirt around trademarks (which weren’t in place in this case)rather than focusing on the actual details of the product
> Slightly off topic but it saddens me that so much time money and effort from incredibly smart people is spent on this bullshit.
Was it bullshit when Debian wanted to make sure that Google Compute Engine images shipped as Debian didn't include proprietary software, components that would nonconsensually report telemetry to Google from within the guest operating system beyond what is inherent to the nature of any VM running within Google's cloud, or default configurations that are unjustifiably different in ways that are undocumented and/or would surprise and disrupt the usual expectations of Debian users?
Yes, trademark law is the reason Debian got to have those in-depth discussions and collaborations with Google. Source: I was quite personally involved, both as a Debian developer and as a then-Googler. (And Debian was more pragmatic than you might think about some of the specifics. I was surprised myself.)
Trademark law is not bullshit even though the term "intellectual property" is.
> No reasonable person is going to think that “Postgres for Amazon RDS” would be materially different to “Amazon RDS for Postgres”.
Not in the primary technical nature of the product or the underlying software, no, that's true. But in the overall aspect of whom to blame for the service's faults or credit with the service's strengths - in other words, who is viewed as endorsing the product with the corresponding responsibility for good or bad reputational and commercial consequences - then yes absolutely the naming does change that in a reasonable person's mind.
Imagine you were not a cloud infrastructure expert but rather a stock market investor who sees a lengthy global outage occur in a managed PostgreSQL service running on Amazon Web Services. Further imagine that the PostgreSQL project were commercial enough of an organization to run their own managed PostgreSQL service on AWS in competition to the one run by Amazon, and had PostgreSQL stock traded on a public stock exchange, similar to Elastic's real situation.
In this hypothetical scenario, is it not true that an outage in "the PostgreSQL for Amazon Database" would look bad for the PostgreSQL project and would make the investor likely to sell or short PostgreSQL stock and/or (since the two services compete) buy Amazon stock? And in the same scenario, is it not true that an outage in "the Amazon Database for PostgreSQL" would entirely swap the reputational and financial/commercial impact on both organizations?
(I'm saying "Amazon Database" instead of "RDS" to sidestep the inside-baseball question of whether someone happens to know that Amazon doesn't let external vendors make flavors of the suite of services called RDS. That's an implementation detail that could easily be false at some future time and upon which trademark law cannot usefully rely.)
> (which weren’t in place in this case)
Huh? Elastic definitely had a trademark in place. Not sure why you think they didn't.
> It’s absolute insanity that so much time effort and money is spent on this in so many places to try and skirt around trademarks [...] rather than focusing on the actual details of the product
Why do you assume that? My assumption is that both Elastic and Amazon spend much more on their products than on their attempts to comply with trademark law when naming their products.
> Was it bullshit when Debian wanted to make sure that Google Compute Engine images shipped as Debian didn't include proprietary software, components
Absolutely not. But, calling it Debian on Google Compute vs Google Compute for Debian has absolutely no bearing on whether they’re doing that or not.
Like you, I’ve had similar discussions with lawyers on my side and “the opposition side” and we’ve spent hours arguing over the semantics of these things while ignoring the root problem - in this case google bundling nonfree software with Debian and calling it Debian.
> my assumption is that both elastic and amino spend much more on their products than on their attempts to comply with trademark law when namjng their products
And yet here we are unfortunately discussing how we’ve come full circle, and I’m wondering how many thousands of people hours across google, elastic and all of their users were spent on dealing with a naming dispute.
> Absolutely not. But, calling it Debian on Google Compute vs Google Compute for Debian has absolutely no bearing on whether they’re doing that or not.
It does have a bearing on whether Debian has a say in the matter, though. In fact, Google did ship customized images that didn't meet Debian's requirements to be called Debian alongside other ones which did until they were able to achieve good enough outcomes with the latter images - achieving this took a bunch of collaborative work over time.
Those other images were described in ways something like "Google Compute Engine-optimized images for Debian" (I forget the specifics), and indeed Debian completely agreed that they didn't have veto power over the contents of those images, assuming they were in fact for Debian instead of for a totally different operating system.
> Like you, I’ve had similar discussions with lawyers on my side and “the opposition side” and we’ve spent hours arguing over the semantics of these things while ignoring the root problem - in this case google bundling nonfree software with Debian and calling it Debian.
To be clear, Google did not bundle non-free software with Debian and call it Debian - they didn't even do that with their customized GCE-optimized images, though there were ways other than licensing in which those weren't up to the Debian trademark policy standards. Google did the right thing on this issue and only put free software inside all of those image images. But as you might imagine, plenty of people in Debian started out skeptical of that fact until they and Google collaborated enough for the truth to be clear.
> And yet here we are unfortunately discussing how we’ve come full circle, and I’m wondering how many thousands of people hours across google, elastic and all of their users were spent on dealing with a naming dispute.
My hours on this conversation don't count - I haven't worked for Google in almost a decade and am typing this in unpaid personal time.
And, speaking from firsthand memories of collaborating across Debian and Google on this, pretty much none of the discussion was about a naming dispute. Google agreed that Debian had the right to decide whether a modified image could be called "Debian", and Debian agreed that Google had the right use the word "Debian" in the descriptive way I've been highlighting when shipping images not approved to be called Debian.
The nature of the collaboration was much more productive than that: "Okay, Debian wants the images to meet this set of standards to be called Debian and meet Debian users' needs, Google wants the images to meet that other set of standards to be a proper Google offering and meet Google users' needs, some of the relevant standards / workflows / cultural attitudes aren't obviously compatible at first glance, but we acknowledge that we have some shared users who want Debian on GCE to work well for them. How do we achieve this?"
That's not a waste of time at all - and lawyers were not involved in the vast majority of those discussions, because it wasn't a legal dispute.
Similar good collaborations happened between Debian and the Azure and AWS teams, and some collaboration events even happened with Debian plus all three clouds. I must say, 2000s-era me would have been very surprised to see Microsoft hosting an event with Debian developers, giving them \\backslash\printer\paths in order to print something, and offering them Visual Studio subscriptions to enable working on Debian on Azure...
I should probably add a very clear disclaimer here: I am not speaking for Debian, their US fiscal sponsor and legal trademark owner Software in the Public Interest (SPI), Google, Amazon, or Microsoft in any of my comments on this Hacker News post, and while I retain very inactive affiliations with Debian and SPI, I have no current affiliation with any of the major cloud providers.
Development of postgres is funded by the companies using it, for instance Amazon.
Elasticsearch and Redis are private companies that fund most of the development themselves.
When Amazon sell Elasticsearch and Redis, they are in direct competition with its creators.
Obviously such a situation isn't sustainable in the long run, and as such both Elasticsearch and Redis (and to my knowledge also mongodb) have changed their licenses to avoid that cloud providers sell their OSS product without paying a license or otherwise contributing back.
In the case of Elasticsearch and Amazon, Amazon even used the Elasticsearch brand to sell their own version.
As I see it it's a good thing that cloud providers are forced to take part in maintaining the OSS software (forked or not) that they are cashing in on.
FWIW, Redis was previously mostly developed by the community but the trademark was acquired by a VC funded tech company. AWS, and other cloud providers like Tencent, were contributing to Redis and they went ahead and changed the license anyways. You can read more about it here, https://lwn.net/Articles/966631/.
It’s the license type that matters, not how development is funded.
Postgres’ license is similar to BSD so even if Microsoft made and was the sole developer and sold it, anyone could distribute or sell it or whatever regardless of who contributes. Similar to Elastic’s old license and why Amazon was legal in what they did.
Amazon (and most all large companies these days) do a ton of OSS dev, but that doesn’t matter. The license of the various software counts.
That's an excellent explanation of a situation with a lot of complexity. Well done!
The confusion between ElasticSearch the software kit and ElasticSearch the hosted service illustrates some of the drawbacks of having the same name for your Open Source product and your business.
I remember when CentOS' website described it as, more or less, a major American Linux distribution with the trademarked parts removed. Everyone knew it was RHEL but the official word was mum.
I don’t know if that’s true. I see tons of car repair services advertising “we repair $BRAND with original parts” and they’re definitely not owned by $BRAND.
Clearly not confused with the original brand, but also advertising a service built off that brand.
The service is more than the code base: it's who is offering it, who supports it.
Besides, I'd be shocked if that analogy is how the law works. Perhaps if you'd bought an individual license then sure, you could resell it with the brand name, just like the car. But wholesale is a completely different situation.
It depends on the legal jurisdiction but in the US you're allowed to use a competitor's brand name/trademark specifically to inform your customers. E.g. "acetaminophen, the stuff that's in Tylenol". You can also use the competitor's brand colors.
so if I create a website called other-Facebook.com that looks exactly like Facebook, I can even tell people I'm going to steal their time and information just like the real Facebook, and that's allowed?
