Subject: Re: OSI enforcement? (Was Re: Microsoft use of the term "Open Source")
From: Rick Moen <rick@linuxmafia.com>
Date: Tue, 1 Jan 2008 14:56:37 -0800

Quoting zooko (zooko@zooko.com):

> Please don't shoot the messenger (me), but the message that I've  
> heard is that OSI has no power to compel people to stop misusing the  
> term "open source".
> 
> Here are the sources which have led me to this opinion:
> http://lwn.net/Articles/211800/
> http://lwn.net/Articles/241984/
> http://lwn.net/Articles/239780/

Last of those LWN links has several posts by me that comprise my basic
take on the subject.  Those who keep bring this up here, ad nauseam, in
my experience, either haven't done their homework, or badly
misunderstand trademark law, or are trying to pull something (e.g.,
CentricCRM), or are just using a handy excuse to slag OSI, or are
trolling.  (Chris Travers had no excuse, as he's had the matter
explained to him multiple times.)

Three of those LWN posts:





Defending "open source"
Posted Jun 28, 2007 2:44 UTC (Thu) by rickmoen (subscriber, #6943)
Jon wrote:

> Aggressively defending "open source" is the right thing for the OSI to
> do at this time; it will be most interesting to see if the OSI is up
> to the task.

I think it vital to point out that this is also something the rest of us
can and should assist with.

Despite CentricCRM's doubletalk about how they've supposedly "never
misled", the key fact to note is that that is _exactly_ what they are
doing to the public -- and, in particular, to their customers.  We should
take pains make this fact crystal clear in all relevant public forums,
and keep on making it clear until they decide that the PR cost of
gaining a reputation for deceit is too high, or alternatively until they
become reconciled to being notorious as a bottom-feeder that doesn't act
with integrity.

This is an approach that has repeatedly worked for quite a few years, as
successive companies have popped onto OSI's license-discuss mailing list
claiming to have the right to redefine "open source" to suit their
business needs on account of OSI lacking a USPTO trademark registration
covering the phrase (which is blatant non-sequitur reasoning), only to
find that the never-ending PR debacle simply wasn't justifiable.

Don't just expect to leave this to OSI, which after all is said remains
a small committee of busy unpaid Board members helping out in their
spare time, with negligible budget and few resources of its own.
Deterring shysters like CentricCRM from ripping off the public in our
memespace is all of our business.

Rick Moen
rick@linuxmafia.com






Defending "open source"
Posted Jun 28, 2007 21:02 UTC (Thu) by rickmoen (subscriber, #6943)

smoogen:

Some lessons from the original Software in the Public Interest (SPI)
application for a trademark on "open source" in February 1998:

1. SPI applied for a trademark over an "open source" mark as applied to
"licenses". This was a mistake (albeit a subtle one), because a
trademark (using the strict USPTO sense of the term) must be applied to
goods in interstate commerce. Because licences aren't goods, a trademark
was the wrong thing to ask for. SPI should have asked for a
certification mark. This lead the trademark examiner to object on
precisely those grounds, and SPI never followed up.

2. Trademarks, service marks, and certification marks must not merely be
used as vaguely descriptive terms, in order to meet USPTO standards, but
must be consistently applied as a precise standard of brand identity. By
the time there was any opportunity to refile the application as a
certification mark application (instead of a trademark), the term was
already being used imprecisely by many parties, and SPI as would-be mark
owner wasn't doing anything to dissuade them. For more on this matter,
see: http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#3

(I'm not speaking for anyone else; I'm just an interested observer.)

Rick Moen
rick@linuxmafia.com





"Open Source" indefensible? Still no.
Posted Jun 29, 2007 1:42 UTC (Fri) by rickmoen (subscriber, #6943)

Nathan wrote:

> Vendors' use of "open source" to describe their proprietary software is
> not misappropriation, in any sense.

Again, with respect:  _No._  Absolutely false.  OSI has an
overwhelmingly clear moral and historical claim to being continuously
the custodian of the definition of "open source" in the software
context, ever since having invented and promoted that concept and (very
explicit) definition.

(To repeat a point I made on another recent LWN feedback, once on OSI
license-discuss, a detail-freak attempted through Herculean research
efforts to challenge the latter fact using the then newly restored
DejaNews^WGoogle Groups archive.  He eventually found, if memory serves,
exactly two brief, one-off coinages of the term that arguably, maybe,
briefly anticipated OSI's by a small margin -- but those persons never
went anywhere with their arguable brushes against the concept, while OSI
has continuously promoted and carefully defined it formally, and made it
famous.)

Attempting to recast this discussion into terms of what vendors can get
away with legally completely misses the point.  I'm really very surprised
I have to point this out, especially since I've said it before on LWN,
very recently -- and doubt greatly that any legitimate controversy can
be said to exist.

> I think Rick is confusing, here, legal consequences with (hoped-for)
> P.R. consequences.

No, sir, I most certainly am not, and I cannot fathom why you would
think so.

> Many vendors have no reason to fear any such P.R. consequences....

Nine years of experience in this area, so far, have failed to support
your assertion.  Again, I have already pointed this out, supra.

> OSI will always be on the defensive with "open source"....

If you will please carefully read my explanation to "smoogen" of some of
the legal realities of trademark registration (see in particular point
#2 and the link to the page on trademark law at Harvard Law), you will
realise that any attempt to register trademark based on a general
concept rather than a defined brand identity is going to be resisted by
USPTO and probably rejected because it will be classified as a
"descriptive" mark without the required "secondary meanings" needed for
that sub-category.

But, more fundamentally, your implicit assumption that a concept that
cannot be enforced through lawsuits for trademark violation is hopeless
-- is plainly incorrect.  Again, I point to the long (nine-year) history
of exactly the opposite occurring, concerning "open source".

> Some vendors even game the P.R....

Maybe -- but all of the incidents I've seen (and I think I've seen
pretty much all of them) strike me as having the flavour of stepwise
improvisation following initial inadvertancy.

Rick Moen
rick@linuxmafia.com