Subject: Re: For Approval: Microsoft Public License
From: Rick Moen <rick@linuxmafia.com>
Date: Wed, 10 Oct 2007 02:37:24 -0700

Quoting Philippe Verdy (verdy_p@wanadoo.fr):

> I don't think that Microsoft abuses the terms, given that OSI is not a
> exclusive legitimate owner of the terms.
[...]
> Here I want a proof of registration of "Open Source" as an exclusive
> trademark owned by OSI.

In the first place, there is no such thing as an "exclusive trademark".
One can establish a distinctive mark within a particular trade or
industry, such that other commercial users within the same trade or
industry, within a nearby geographical area[1], have the burden of ensuring
that their usage of the mark isn't likely to confuse customers as to who 
produced the goods/services.

Other usage -- and _all_ usage in different trades or industries, and
also all non-commercial usage -- cannot infringe[2], and the trademark
owner therefore has no power to enjoin it.

Thus, there is no such thing as an "exclusive trademark" -- let alone
such thing as an "exclusive owner of the term" (both of those being your
concepts).  I've attempted to explain this to you before; your reaction
was that you didn't understand what I said.  C'est la vie.  Tant pis.


In the second place, your assumption that OSI cannot have the moral
entitlement to define "open source" in software contexts unless it also
has the power to compel transgressors in court is simply wrong.  And
also a bit offensive.  What gives OSI that right?  History does.

> But even in that case, Microsoft is not required to limit its usage for
> softwares covered by licenses not approved by OSI.

Screw that, Philippe.  OSI's moral claim is utterly clear.

> The terms were used and defined more broadly before OSI started its
> job of making a compliance program to give a stricter definition (but
> no way to enforce it legally).

Nope.  Not in the software context.  This has already been hashed out;
You'll find the discussion in this mailing list's archives:  Someone
else who took your position spent some ungodly amount of time searching
the old DejaNews archive, and for his pains found, if memory serves,
exactly two isolated mentions predating OSI's launch that _maybe_ could
be argued to have similar, but neither party followed up to formalise or 
establish their concepts -- or followed up at all, in fact.

OSI, by contrast, did exactly that, and has continued to do so, to this
day.

-- 
Cheers,                              Mia kusenveturilo estas plena da angiloj.
Rick Moen
rick@linuxmafia.com