我可以用「自由軟體」稱呼非 copyleft 的軟體嗎？

YungLee 說: 如果我不顧你的感受，硬是要說 Scilab 是自由軟體 (但我當然不會說他是 FSF 所定義的自由軟體)時，請問我犯了甚麼法 ? 如果你無法精確說出可以引用的法源時，你就不能使用你的感受，來裁判別人，尤其是牽涉法律問題時，這一點你似乎不很在意。

YungLee 要如何稱呼，與我的感受無關。而且幸運的是，「Free software」及「自由軟體」這兩個詞都沒有註冊為商標(trademark)。所以 YungLee 稱呼 Scilab 是「自由軟體」並不會觸犯商標法。

但是智慧財產權法律並不是只有著作權法和專利法。以我國法律系統為例，至少還有商標法、營業秘密法、個人資料保護法、民法人格權、隱私權等內容。這之中有很複雜的競合關係。我說的還只是我國的國內法，不包括國際法。

當 YungLee 質疑我不在意法律問題時，我反倒要問他知道上述這些法律的競合關係嗎？正因為我知道智慧財產權法律中存在複雜的競合關係，才更是如履薄冰、戒慎謹言。因為我不知道在什麼地方會踩到坑。

其實像 YungLee 這樣使用自由軟體或 free software 名詞的情形，早就已經討論過了。參閱《Why “Free Software” is better than “Open Source”》:

Would a Trademark Help?

The advocates of “open source software” tried to make it a trademark, saying this would enable them to prevent misuse. This initiative was later dropped, the term being too descriptive to qualify as a trademark; thus, the legal status of “open source” is the same as that of “free software”: there is no legal constraint on using it. I have heard reports of a number of companies' calling software packages “open source” even though they did not fit the official definition; I have observed some instances myself.

But would it have made a big difference to use a term that is a trademark? Not necessarily.

Companies also made announcements that give the impression that a program is “open source software” without explicitly saying so. For example, one IBM announcement, about a program that did not fit the official definition, said this:

As is common in the open source community, users of the ... technology will also be able to collaborate with IBM ...

This did not actually say that the program was “open source”, but many readers did not notice that detail. (I should note that IBM was sincerely trying to make this program free software, and later adopted a new license which does make it free software and “open source”; but when that announcement was made, the program did not qualify as either one.)

And here is how Cygnus Solutions, which was formed to be a free software company and subsequently branched out (so to speak) into proprietary software, advertised some proprietary software products:

Cygnus Solutions is a leader in the open source market and has just launched two products into the [GNU/]Linux marketplace.

Unlike IBM, Cygnus was not trying to make these packages free software, and the packages did not come close to qualifying. But Cygnus didn't actually say that these are “open source software”, they just made use of the term to give careless readers that impression.

These observations suggest that a trademark would not have truly prevented the confusion that comes with the term “open source”.

這篇文章顯示了一件很有趣的事。在國外，雖然 "open source software" 及 "free software" 這兩個名詞都不能註冊為商標。但文章中所舉的 IBM 及 Cygnus 兩個例子，都只稱 open source community / open source market ，而沒有完全用 "open source software"。 IBM 是全球最大的軟體專利商，光靠智慧財產權的授權收入就足以超過台灣一間中小企業的年收入。 IBM 的法律部一定知道 IBM 直接用 "free software"/"open source software" 這兩個名詞不會觸法。但 IBM 並沒有用。各位不妨仔細想想為什麼 IBM 不這麼做。

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