Context on Conservancy's Filing for Summary Judgment with the TTAB

by Bradley M. Kuhn on December 11, 2017

As Conservancy's entire staff wrote in our earlier statement: while we think SFLC's trademark action is a waste of resources for both organizations, we also are dedicated to transparency. Accordingly, we'll keep the software freedom community updated about the action as long as it proceeds. We publicly called on SFLC to withdraw this legal action, but they have not. Therefore we've proceeded today with the most expedient defense available to us: a summary judgment motion which can be read on the USPTO's website. As a non-lawyer, I explain in this blog post some details of that motion and its supporting documents in more mundane, non-legal terms. If you are curious about the details of today's motion filing, do read this blog post and the full filing, but I actually encourage you to skip to the last paragraph of the blog post. (In other words, I made this post solely for transparency, not because I believe following every move in this action is worth your valuable time.)

Today, Conservancy filed for summary judgment in SFLC's trademark cancellation action. As I understand from our lawyers, summary judgment is a mechanism to ask a Court to expediently handle a matter where the facts are straightforward and, as a matter of law, there is no plausible way that the party filing for summary judgment won't prevail. Everyone at Conservancy strongly believe that fits this situation, and the motion asks the Trademark Trial and Appeal Board (TTAB) to agree with us.

In making our defense, I needed to now publicly state facts that I had hitherto avoided saying publicly. Frankly, I previously saw no reason to publicly discuss SFLC's strange accusations over the years. But, I now must do so, because these points are essential to Conservancy's legal defenses. Specifically, SFLC's contact with us since we filed our trademark in 2011 raised other issues but never in those interactions did SFLC raise any concerns about the name, trademark, or branding of our organization. In other words, people from Conservancy, including me, communicated with SFLC often, listened to their complaints, and none of them were about the issues that SFLC raised in the trademark cancellation action.

If you read Conservancy's filings today, you'll see various examples of this. Simply put: while SFLC has a history of complaining to us, complaints about the organization's name were not among them until their cancellation petition. Each time, we took those complaints seriously, and each time, we discovered that they were spurious threats. I'll explain more about two examples from our filings. In February 2013, at an in-person meeting, Moglen told me that Conservancy was in danger of losing our 501(c)(3) status because we relied heavily on a few large grants back then. (This was before our Supporter program). I was pretty sure Moglen was wrong, but after he told me that, I nevertheless spent months researching, re-reviewing our 990s, and otherwise trying to figure out what he meant and why he thought we were in such danger. In the end, I confirmed with the aid of legal counsel that our public support test was fine and strong, and we had nothing to worry about. Additionally, from fall 2014 through May 2016, SFLC repeatedly made accusations that some material on Conservancy and FSF's joint site had “plagiarized” SFLC's publications. We researched that question too, and Karen and I even recorded an audcast back in December 2014 that explains how plagiarism claims are nonsensical regarding compliantly published CC-By-SA-licensed works. We also confirmed that compliance by asking CC licensing experts to review Once they confirmed our compliance, we repeatedly told SFLC their claim was inaccurate — even while SFLC continued to make threats about that same topic and demand meetings about it.

Again, I have hesitated for years to talk publicly about these facts; I historically concluded that unilaterally exposing privately-made specious claims interferes with the essential job of promoting and defending software freedom. Despite our differences, SFLC is a fellow charity, and I have no wish for them to cease to exist, only that they stop attacking us. While both Conservancy as an organization, and I personally, have publicly disagreed with some of SFLC's policy positions and actions, I have striven for years to keep our public dialogue focused on software freedom policy — rather than about the petty issues that SFLC raised in private. I don't think it serves the software freedom community to conflate public policy disagreements with personal attack. But, SFLC has recently extended those personal gripes into the public space, not only via this trademark cancellation action, but also in their public statements about Conservancy's other work. For example, a year ago, Moglen publicly described certain GPL enforcement work, to which I have contributed since the 1990s, as “a jihad”. I was offended because I have dedicated my life to non-violent, Principled activism for social justice causes. Even so, I did not likewise assail in response; I sought to keep the discussion about policy, not hyperbolic rhetoric.

Sadly, less than a year later, SFLC escalated even further with this surprising (and inherently public) filing against us with the TTAB. Since SFLC refused our public requests to withdraw the cancellation action, we must defend ourselves with our best legal defense. To do that, we needed to make public, through our declarations, that SFLC's own email clearly show that, for years, SFLC made strange complaints (which we researched and responded to), but SFLC did not complain about the name, trademark, nor branding of Software Freedom Conservancy until the cancellation action.

Finally, on a meta-issue, I've seen a lot of stories, blog posts, and comments on LWN and other venues in the last few weeks about this matter. It seems to have burned more electricity and time than it warrants. I do appreciate the statements of support that so many of you have made, but I have a request. While I understand that this kind of situation generates an intriguing distraction and seemingly endless discussion, I encourage those of you who are otherwise software freedom contributors to temper your time investment. Faced with a petition to cancel our trademark, Conservancy must defend ourselves before the TTAB. But, I loathe the idea that the time-waste damage of SFLC's action might extend to other software freedom contributors and activists. In particular, I ask that those of you who are Conservancy project volunteers avoid distraction by this. The work of Conservancy's member projects is the work that SFLC's action seeks to impede, so please don't allow them to break your focus and succeed in that — even if just a little bit.

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