Decision: Red Hat, Inc. vs. Daniel Pocock / Software Freedom Institute SA | Hacker News Reader

Decision: Red Hat, Inc. vs. Daniel Pocock / Software Freedom Institute SA

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122 pointsjaboutboul74 comments

If this seems too long to read, it's about a domain name registration dispute between RedHat and a volunteer who registered wemakefedora.org (RedHat was seeking to gain control over the domain).

The arbiter not only found against RedHat but also made a declaration that the dispute was brought in bad faith.

The condensed excerpt is:

"Accordingly, the Panel finds that the Respondent has rights or legitimate interests in the <wemakefedora.org> domain name both because Complainant consented to Respondent’s use of the domain name so long as the website followed Complainant’s trademark guidelines and because Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain misleadingly to divert Internet users or to tarnish Complainant's FEDORA trademark."

and from the conclusion,

"In light of these circumstances the Panel finds that Complainant brought this proceeding despite having clear knowledge of Respondent’s rights or legitimate interests in the domain name and that the proceeding was brought primarily to harass the domain-name holder."

So, it's a good outcome.

Possibly? The domain owner does appear to have a history of bad behavior in a wide range of communities, including harassment. The idea that he set up this domain to annoy RedHat is plausible. However, purposely annoying a large corporation does not mean their site doesn't also serve an actual purpose, or that it constitutes trademark infringement. I don't think I see much potential for actual confusion or financial loss, so it's hard to see a strong reason to revoke the domain.

Bringing a lawsuit against someone when the only grounds you have is you don’t like what they are doing and you know that is the definition of “bad faith”.

The defendant may be an asshole, but they have every legal right to be one. RedHat is so clearly in the wrong, it’s disgusting.

I think it's fair to say that neither party had pure motives here. But a decision in favor of preserving what (in my view) amounts to a free speech issue seems like a win in this case. There are better ways to deal with assholes than setting what would have been a bad precedent for future cases if the ruling had gone the other way.

An arbitration decision doesn't set a precedent.

Every decision sets a precedent that can be referred to by future parties as examples of how a similar case was handled previously, and presumably the folks deciding these will want some minimal level of consistency between decisions.

But sure, you're correct in the limited sense of that something like US Supreme Court stare decisis doctrine isn't built into the arbitration system, and so precedents are not binding or prima facie evidence that a current case should be decided the same way as a prior one.

Well, I don't presume to know how US law works.

In the UK, precedents are set by the decisions of the High Court (civil) or Crown Court (criminal), and by higher courts. Lower courts don't set precendents I believe - IANAL.

In the US there is a distinction of "binding" precedent and a "persuasive" precedent. A ruling that isn't binding can still be used in another case as evidence for a the validity of a line of reasoning, which can be persuasive, but the court is not obligated to give it the same standing as binding precedent. Even then, "binding" judicial precedent isn't binding in the strict sense. A court can still choose to disregard it, or hunt for a reason why it doesn't apply, but that gives the losing party much stronger grounds to get a case overturned on appeal. It's not a great look for a judge to have most of their decisions overturned though, so going against such precedents is usually not done without good reason, but it happens often enough to keep the appeals courts in business.

The looser persuasive sense of precedent is what I meant: The arbitrators will not have to accord a prior decision any special status, but they will certainly want to have some level of consistency, and for tough decisions they will look back at how similar issues were handled, and complainants & respondents will be able to bring it to their attention as such. It wouldn't make much sense for an arbitrator to never look at prior cases for insight into colleague's reasoning on similar matters.

Oh, OK; persuasive precedent.

Thing is, aren't arbitration proceedings generally cloaked in secrecy? Most arbitration amounts to contract re-negotiation "by other means", no? So if the proceedings are secret, it's hard to see how they can be used as a precedent. Are such proceedings less secret than I thought?

I wonder how things might change if he distributed something like Fedora but with malware. I hope in that case he'd not prevail in a legal battle over use of the name 'Fedora'.

I think that would head towards criminal charges and Fedora would have some legitimate standing to file a lawsuit. Right now, they have nothing.

I'm not a lawyer but in addition to the other crimes this would be a trademark violation. If they're arguing the malware version is Fedora, it would constitute an attempt to "misleadingly to divert Internet users or to tarnish Complainant's FEDORA trademark." Since Fedora is trademarked it doesn't matter if it's marketed as Red Hat Fedora or some other Fedora.

Yes, if the situation was different then it might be different. Conveniently, it wasn't, so it isn't.

If that's the only problem with this outcome, then it's definitely a good outcome.

> The domain owner does appear to have a history of bad behavior in a wide range of communities, including harassment.

Could you point to a source or some examples?

Just scroll down in the thread.

"The idea that he set up this domain to annoy RedHat is plausible."

Re-read what the court said:

> Complainant consented to Respondent’s use of the domain name so long as the website followed Complainant’s trademark guidelines and because Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain misleadingly to divert Internet users or to tarnish Complainant's FEDORA trademark

Always amazes me when random HNers think they know more that people who literally spend their lives on this stuff.

It wasn't a "court", it was an arbitrator.

As detailed elsewhere in this thread, the website doesn't follow Complainant’s published trademark guidelines.

https://news.ycombinator.com/item?id=30705278

Just skimming the website, there is an article defaming a Debian Maintainer that had been arrested by the Russian government by insinuating he's spying for the Russian government, referencing leaked emails from debian-private, and defaming a Google employee with insinuations.

Free Software/Open Source projects rely on private mailing lists to discuss sensitive matters involving people, topics that would be discussed in-person in any non-distributed organization.

It's understandable that the Fedora Project doesn't want its trademark attached to such content.

By that reasoning no opinion is valid if it differs from the one given by the arbitration committee. (note that I said valid not binding. Clearly their opinion is the only one that is binding.) Maybe you are making that claim? But I don't think so because that would seem both unreasonable and because that would be an uncharitably negative interpretation of your statement (a practice which runs somewhat counter to HN community guidelines)

As to the issue at hand, you may not be aware of the fact that arbitration folks are limited in what they may consider solely to what is given to them by RedHat & Pocock, and from this document RedHat does not appear to have brought Pocock's prior behavior into the matter. I on the other hand, unbound by the rules of arbitration, am allow to consider anything I'd like when formulating an opinion. And when I look at Pocock's history of interacting with various communities my opinion is that it is plausible (note that I don't claim it to be definitive) that Pockock's motives may have included the annoyance of RedHat.

All of which is besides the point: Pocock could have come right out & said "I wanted to annoy RedHat" and that would still only have filled 1 out of the 3 considerations (bad faith) to rule in RedHat's favor. His site still could fulfill a legitimate noncommercial purpose, and not cause any confusion regarding the Fedora trademark, and therefore no require reassignment to RedHat. At a guess, this is possibly why RedHat didn't bring Pocock's other behavioral history into the issue: It was neither relevant nor sufficient to demonstrating their case.

Always amazes me when random HNers waste their time making low effort posts that contribute nothing to the conversation by cherry picking one thing and making an issue of it. I probably shouldn't waste my time engaging such comments but, Oh well, nearly done, might as well finish...

Besides which:

>people who literally spend their lives on this stuff.

You have only an extremely small idea of what I spend my life on. Contrary to a sparse profile that is extremely far from comprehensive of my full experience, I do in fact have professional exposure to legal (in this case quasi-legal) procedures and processes. That shouldn't matter though: we're not far enough into the weeds on the issue that true expertise is required for a reasonable opinion. Either way, I'm not going to post my curriculum vitae here merely to fend off snarky low-effort comments from folks that will likely make snarky low-effort posts regardless. It's supposed to be a site for discussion, not credentialism.

Silly question, but would it have been possible for RedHat to simply revoke their consent, maybe on the grounds that association with Pocock would damage their image or something? If they did that, would this have been an easy win for them?

The respondent is quite the character…

He’s been expelled from the Debian project/community (source: https://www.debian.org/News/2021/20211117) and he’s in pretty bad standing with Free Software Foundation Europe.

Even if they are a reprobate they deserve fair treatment.

Right, but it does call into question whether those "posts which have been deleted from FedoraPlanet" are genuine or are defamatory nonsense. It also calls into question whether he is really intending to represent the Fedora developer community (as implied by the choice of domain name), or whether he's actually intending to harass and spread falsehood.

For instance, would he allow a post signed by prominent members of the Fedora community, describing his harassment and defamation in the Debian and Fedora channels, to be posted there? If not, then he's not acting in good faith.

What was the actual infraction?

yes, he dared to critize them on obvious shit shows. both organizations need to be critized on their actions.

Respondent is using the FEDORA mark in the domain name to identify Complainant for the purpose of operating a website that contains some criticism of Complainant. Such use is generally described as "fair use" of a trademark.

This is a good precedent, regardless of what you think of the respondent.

Yes, there's a difference between "I don't like this person and what they are doing" compared to "they shouldn't be allowed to do it"

Comments on the LWN article are interesting: https://lwn.net/Articles/887931/

Yeah, this particular comment[1] is quite damning—the person got booted by FOSDEM, FSF Europe, Debian[2], Alpine Linux and more. I wonder if the court considered all this past evidence.

[1] https://lwn.net/Articles/887955/

[2] https://bugs.debian.org/cgi-bin/bugreport.cgi?bug=953378;msg...

> I wonder if the court considered all this past evidence.

Sorry, the guy very much appears to be an asshole - but how does any of that count as "evidence" in the matter of whether or not his domain infringes on Red Hat's trademark?

- "I wonder if the court considered all this past evidence."

I'm happy that a total asshole was treated evenly and equally by the court. This is literally the first principle of justice -- she is supposed to be blind!

Definitely, justice should be blind. On admission of character evidence with so much available, I don't hope that it happened but I'd be curious if it did, especially if it was done lawfully.

It doesn't seem like he was ever a member of Alpine Linux community.

> I wonder if the court considered all this past evidence.

What bearing do those other things have on whether or not this person complied with RedHat's trademark requirements?

He may be an asshole, but that should have no bearing on matters of trademark law.

Fair point. I was wondering about it from an intention and misrepresentation point of view. To me, it's misleading to claim "we make Fedora" by a lone individual while the real "we" is thousands of contributors.

Disclosure: I work for Red Hat, am an occasional Fedora contributor, but I have no dog in this hunt.

Back in my days as an ambassador, I remember we had a principle: "Be Excellent".

Probably wasn't a community rule, but more of a guideline... and, I think that principle has been violated here. I'm unclear of the domain owner's standing within the community, but as I've read more... it doesn't seem very excellent.

I do believe there is a nexus of causality between community standing, and permission to use the trademark. However, just my opinion, actual trademark law may diverge.

Do you have a link to FOSDEM part? My ddg-fu failed me.

This bit of [1], referred to in [2], seems relevant:

"their site owners, moderators, administrators, and users are required to comply with the Fedora Code of Conduct. Community sites and accounts which are unable to meet this standard of conduct will be required to cease use of the Fedora trademarks,"

I wasn't previously aware of it, but [3] may also be relevant. (I know no more than appeared on the devel list, other than history elsewhere.)

They may have cocked up the case, but a finding of bad faith against Red Hat seems unlikely to be fair, given the above.

1. https://fedoraproject.org/wiki/Legal:Trademark_guidelines?rd...

2. https://lists.fedoraproject.org/archives/list/devel@lists.fe...

3. https://fedoraproject.org/wiki/User:Pocock

> Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain misleadingly to divert Internet users or to tarnish Complainant's FEDORA trademark.

It is bad faith because Respondent was not using the trademark to pretend to be Red Hat. Tarnishing a trademark would require misleading users to think that you are representing the company. If I create a website called microsoftsucks.com and detail reasons why I think Microsoft sucks, that is fair use. If I pretend to represent Microsoft on that site, then that is tarnishing Microsoft's trademark, or if I use the domain to sells shirts then that may not be considered fair use.

the domain name itself is in bad faith.. it’s more like registering wemakemicrosoftwindows.com

Agreed, but "bad faith" is only one of the 3 requirements that need to be proved in a domain case like this.

Open source involves community. This was a website for people that actually do make Fedora. If I make packages for a Linux distro, or content, can it not be said that I help make it? Same for Windows as well. If I contribute packages for Winget or contribute on their GitHub to Windows Terminal then that is not wrong as long as I don't pretend to be that company on the site itself or represent the company in the actual content. A domain name means very little, it is the content that counts the most

> if I use the domain to sells shirts then that may not be considered fair use

Is that so? The answer seems to be in your quoted section, but infuriatingly, that contains garbled english right at the key point.

If the quote said:

without intent for commercial gain *OR TO* misleadingly divert Internet users or to tarnish Complainant's FEDORA trademark

.. then that would be a slam dunk - no t-shirt sales allowed. But it doesn't.

The way it is actually worded, it sounds more like it would be OK to sell t-shirts, as long as it wasn't being done "to misleadingly divert Internet users. But that doesn't really make sense either.

Something like Tshirt sales gets far more complicated.

UDRP is not meant to say "you're the asshat, so I'm giving it to the one I like"

RedHat have good reasons to want the other chap pushed off the cliff, but thats not what UDRP is for. The asshat has a basis to want their platform, they used it to do what they want, and they have a basis to believe they applied for it, legitemately under terms of use of the name, which met the rules

If you want to pull toys from an asshat, find the right rule in the rulebook to do it. This wasn't the right rule.

RedHat's parent IBM, has a rather interesting history when it comes to litigation assholery AIUI. The late Chuck Peddle described some of it in [0] IIRC.

Pocock has a reputation for being an antagonistic asshole, but if there's even a shred of IBM representation on RedHat's side I'm inclined to chuckle in a pot-meet-kettle fashion at this situation.

[0] https://theamphour.com/241-an-interview-with-chuck-peddle-ch...

Mr. Pocock is well known in the Debian community.

https://www.debian.org/News/2021/20211117

Incase anyone else was curious why this went to arbitration [0]:

"Disputes relating top-level domain name names may be settled outside of court under the Uniform Domain Name Dispute Resolution Policy. (UDRP) as adopted by ICANN. Arbitrator in such cases will be appointed by one of the ICANN approved dispute resolution providers.

Red Hat approached the US-based National Arbitration Forum on January 17, 2022. NAF released a document stating that Red Hat’s sole demand was for the transfer of the rights to wemakefedora.org. The reason is that the company’s trademark, the “Fedora”, has been used in the man’s name."

[0] https://bit.ly/3u9tnnP

There’s a lot more to it than just this decision. Google the complainants name.

Some hint in the comments here https://lwn.net/Articles/887931/

> Google the complainants name

The complainant is Red Hat. I don't see anything interesting when I Google them. Googling the respondent, Daniel Pocock, is a lot more interesting.

Pocock explains it here: https://danielpocock.com/harassment-decision-victory-for-vol...

almost like the shit show at the FSFE and Debian recently.

Respondent's public reaction on the decision[0].

0. https://danielpocock.com/harassment-decision-victory-for-vol...

>>The domain name is not used in bad faith, given that the web site directs people back to the trademark owner's site, doesn't ask for money, doesn't run banner advertising, doesn't ask for personal registration. It has been demonstrated that the trademark owner is suppressing the blogs of some volunteers with authorship rights and Respondent’s site exists to give those voices an equal status. The founding documents published by the trademark owner (Exhibit 104) encourage us to give voice to all sides.

Fail to understand fedora's motives here other than censorship

Fedora doesn't like Pocock because - I think many people would agree - he's an asshole. However, as Thomas More puts it in the play about his life and betrayal, "there's no law against that".

For what it's worth, I've been at a number of conferences with him in the past and whilst I don't know him intimately, he's always seemed a nice and good natured person yo me.

You have to enforce your trademarks otherwise they might be declared invalid. Regardless of the final decision, what RedHat did seems pretty normal to me.

This notion that surefire mark enforcement can only be achieved through blanket legal action against all potential abusers of the mark is parroted on HN repeatedly; however, the real world situation is a bit more complex. A firm will not lose their trademarks if they don't aggressively sue each and every person/business who might potentially be infringing upon the firm's marks. In fact, for firms like Red Hat who are actively selling a product, (and therefore utilizing the mark in commerce and in a way that makes that mark very well known to potential customers) said ongoing business operations typically ensure that courts will regard one's mark as defended and active, especially if one ensures that the firm does go after the most very egregious violations.

TL;DR: Firms do not need to obsessively litigate against every single person using their mark.

TL;DR:

FINDINGS

Complainant [Red Hat] has failed to establish all the elements entitling it to relief and has brought the Complaint primarily to harass the domain-name holder [Daniel, who owns wemakefedora.org].

...

Panel concludes that relief shall be DENIED and declares that the Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.

Accordingly, it is Ordered that the <wemakefedora.org> domain name REMAIN WITH Respondent.

Arbitration is why we can't have nice things.

edit: nm

If anyone wants a TLDR:

> DECISION Complainant having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED and declares that the Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding

RH are markedly less nice than before IBM took over, which is a pity.

No they’re not. IBM has left Red Hat alone.

Can confirm. Dont see any IBM at all in any level.

So it's just a coincidence that since the acquisition RH have done things like drastically changing CentOS just after 8 came out ( the right time for a strategy shift was before that) and harassing community members ( the present case)?

You have to believe him...plain simple ;)

From the looks of things, Daniel Pocock appears to be less of a community member, and more of a troll

CentOS changed for the better, it’s now upstream rhel rather than a clone of rhel. The messaging was lost… Red Hat does the upstream paradigm for everything else so it just kind of makes sense once you look into it.

That "change for the better" made it unusable for the main thing people used it for.

> FINDINGS

> Complainant has failed to establish all the elements entitling it to relief and has brought the Complaint primarily to harass the domain-name holder.

Oh look RedHat got that IBM spirit finally ;)

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