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Yeah, you could have just clicked on the link in the previous post, but I felt it would be better to elaborate a bit. :)

Yeah, you could have just clicked on the link in the previous post, but I felt it would be better to elaborate a bit. :)

I'm amazed nobody has considered giving to Software in the Public Interest. Support open hardware and Debian at the same time!

Greg

No one has mentioned SPI: http://www.spi-inc.org/

besides that we have the Electronic Frontier Foundation, Free Software Foundation, Software in the Public Interest, Apache Software Foundation, and i am sure a few more...

greetings, eMBee.
--

Much as we can despise/dislike ESR and his style, he did (together with Bruce Perens) coin the term "Open Source". The trademark is still actually owned by Software in Public Interest - though ESR has challenged that.

This discussion is kindof like trying to decide who invented the computer. What is "the Open Source movement"? Published source code? AT&T Bell Labs did that with the original UNIX, in 1969. Freely available source code? Many will agree that the GNU project (1984) made software "Free" for the first time. And in the DOS days, of course there was "freeware" and "shareware", which sometimes came with source.

Back in the old days, we typically just made our programs available without any regard to licensing, rights of use, copyrights, etc. -- something that would make these programs unacceptable according to, for instance, the DFSG. Still, the source code was usually public, so they could still probably be called "open source" (although not Open Source(tm)).

The only thing that's for certain is that RedHat did not invent any of this, any more than Al Gore did. They company was busy creating CD-ROMs based on DOS shareware when they noticed this "Linux" phenomenon pop up, and the latched on to it. They made one of the first distributions (along with Slackware, Yggdrasil, and Debian), but very little of the actual development effort was theirs.

And you were too busy flaming to notice that they dropped it because they couldn't agree to who owned it. But, you don't have to take my word for it....

Ask Eric Raymond.

Or if you don't believe him, why don't you ask Bruce Perens?

Another option is something like Axel Boldt's Free Software Bazaar, although that concept has a few well-discussed problems of its own.

Debian is certainly a worthy cause, as mentioned, but they don't take donations--rather, they relegate them to Software in the Public Interest.

The hardware idea is certainly a good one.

The APSL 1.0 was non-free; the APSL 1.1 was improved, and discussed on spi-general and license-discuss with postive responses, but I can't find a final judgement.

Check your facts :-). First of all, the Debian project doesn't sell CDs itself; we make CD images that are burned by CD vendors. Some of these vendors make it possible for buyers to donate to Debian's development.

The donations are handled by SPI (Software in the Public Interest), a non-profit Inc. created as the legal entity for all kinds of Debian stuff. Since its creation, SPI has expanded to support other projects besides Debian (Berlin, GNOME, LSB, Open Source, Open Hardware). While these include FSF projects (GNOME), SPI isn't currently donating directly to the FSF AFAIK.

Check your facts :-). First of all, the Debian project doesn't sell CDs itself; we make CD images that are burned by CD vendors. Some of these vendors make it possible for buyers to donate to Debian's development.

The donations are handled by SPI (Software in the Public Interest), a non-profit Inc. created as the legal entity for all kinds of Debian stuff. Since its creation, SPI has expanded to support other projects besides Debian (Berlin, GNOME, LSB, Open Source, Open Hardware). While these include FSF projects (GNOME), SPI isn't currently donating directly to the FSF AFAIK.

For those of you who don't know, SPI does promotion and education of free software systems. They are a good organization and have been affiliated with Debian for a while. Their web page is at http://www.spi-inc.org/.

Hmmm? It doesn't appear in that many places; most of the copyrights are still held by individuals (SPI discourage s copyright assignments to it).

Why not donate to Software In the Public Interest? (http://www.spi-inc.org/)

Donation instructions are here and here Good luck!

P.S. And, unlike this credit card gimmick, you really know how much you've given!

P.P.S. If you hate your CC being passed from MBNA to FirstUSA to CapitalOne and back, get it from a bank that is big enough - Chase, Citibank.

Of course, eventually someone will not like the direction that the Apache group is going and will create a new distribution (ala Linux) with a different aim.

I don't think that this will actually affect Apache development in any way, the code will remain under the BSD license.

Rather, the ASF was obviously formed to create a supporting organization for Apache and its sister projects (mod_perl, PHP, ...)

So in effect it is much like the Free Software Foundation and Software in the Public Interest. It just hasn't got its nonprofit status yet.

--

1. There has continually been tension and competition between OSI and SPI. The differences between the organizations have always come down to SPI (Software in the Public Interest) pretty much holding the moral high ground, and OSI (Open Source Initiative) focusing on the practical--specifically, efficient and focused marketing. As such, everyone pretty much trusted SPI, but looked to OSI as an organization that could reach out to others.

   This sort of thing happens in a lot of movements, and this sort of division really isn't anything to be ashamed of. For any movement you have to have people who are grounded in the underlying principles (alternate definition: stubborn and immovable) and loyal to the causes of the movement, and you have to have people who are interested in figuring out ways to grow the movement and market its causes and maybe, well, are not so grounded. Again, this is normal and natural and nothing to be shocked at.

   Even so, because OSI is the one to have based it's policies in the practical rather than the moral, I for one have always worried a bit about the long-term trustworthiness of the organization. This recent action shows that my worries and fears were not unfounded.

   OSI has been telling us all along that they own the mark, and that they are continuing work on registering it. A couple days ago a ZDNet article, of all things, alerted us to the fact that they have in fact not been doing so.

   Instead of protecting the "Open Source" certification mark, they've simply abandoned the registration without first telling anyone their plans.

   In other words, they've been stringing us along, having us believe they're working for one thing, and instead have had completely different plans. That's dishonest, and that's deceitful.

   OSI has proven itself to be deceitful.

   OSI is no longer to be trusted.

2. On the basis of cost, it doesn't make sense to abandon the registration. Even if they were worried that the registration of the mark wouldn't go through, that is still no excuse to utterly abandon it.

   It simply doesn't take much time to reply to a letter and answer some questions, and it doesn't cost very much either. In fact, the cost to write letters to the USPTO is *far less* than the cost to fly from city to city, talking with business leaders everywhere.

   Even if you're being told responding to USPTO queries is a waste of time (which I don't believe), paper simply isn't that expensive, and if the OSI directors can explain what Open Source means to businesses and the media (and I think they can be said to have been successful at that), why can't they explain themselves to the US Patent and Trademark Office?

   Bruce has already spent the $250 for the initial registration papers. They should have at least spent the money for stationary and postage to continue USPTO correspondence. It is an incredibly small investment to attempt to protect the mark that has been built up.

   However, if they had had problems paying for stationary, had they let us know, I'm sure we could have provided paper, toner, and free copies of emacs.

   OSI is cheap.

   OSI does not use funds wisely.

   OSI has proven itself to be fiscally irresponsible.

3. For the lack of a better term, (now that OSI considers this one invalid for some strange reason), the "Open Source movement" has invested enormous time and energy in furthering the purposes of the Open Source certification mark, and in helping building name recognition. For OSI to abandon the attempt at the registration of certification mark is a slap in the fact to all our efforts.

   OSI is traitorous.

4. The fact of the matter is, "Open Source" is exclusively recognized as an OSI/SPI created mark. Even if the term was considered merely descriptive and not distinctive, (and I don't believe that for one minute--it was both to me at least), how could it not have be considered to have distinctive status in the media within a month after the unveiling?

   IANAL, but I was able to easily dig up two cases:

   • Here is an appeal in which a trademark is found to be "merely descriptive" and not distinctive. (Unfortunately, slashdot mangles the URL. You can go to http://www.findlaw.com/casecode/courts/ , search for keyword 95-2238 in 8th Circuit Court Opinions, and it will be under First Bank vs. First Bank System.

   • And from the Supreme Court Decision &graph url=&court=US&case=/us/000/u10301.html">Qualitex Co. V. Jacobson Products Co.,

     In this circumstance, trademark law says that the word (e.g., "Trim"), although not inherently distinctive, has developed "secondary meaning." See Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851, n. 11 (1982) ("secondary meaning" is acquired when "in the minds of the public, the primary significance of a product feature . . . is to identify the source of the product rather than the product itself"). Again, one might ask, if trademark law permits a descriptive word with secondary meaning to act as a mark, why would it not permit a color, under similar circumstances, to do the same?

     (Unfortunately, slashdot mangles the url above. You can pull up the above info by going to http://www.findlaw.com/casecode/courts/ and search for keyword "Qualitex" in US Supreme Court opinions. Qualitex Co. vs. Jacobson Products Co. will be the first in the list.

   So if I can easily find case law to prove that a mark can at least become distinctive, and if I can find magazines everywhere using "Open Source" as a very specific term, (implying that the USPTO could also agree that it's become distinctive), how could a group that presumably actually spent money for legal help in this area conclude that they had "virtually no chance" at success? Are they not aware of all the publicity "Open Source" has been getting, almost always specifically pointing out the Open Source Definition where practical? (ie, print media, not 10-second sound bites.)

   I can only conclude that OSI didn't bother to research the issue in any depth, but decided it would be easier to give up instead.

   In legal and procedural matters, OSI is lazy. (They're fantastic for the marketing of Open Source though, and not at all lazy there.)

5. Applying for registration of a certification mark and then denying that it would ever have been possible for you to have gotten the mark in the first place is not a winning legal strategy.

   What if OSI later convinces themselves that they've made a legal mistake and they *can* register the certification mark after all?

   From their cut and dry statement, prematurely denying the possibility, I wonder if they've burned their bridges behind them. They may have a harder time trying to register it a second time.

   It's why people hire lawyers--To keep from making that sort of foolish statement and boxing yourself in. Either their lawyer didn't think of that, (and that's the biggest part of their job), or OSI ignored their legal advice.

   Either way, OSI is legally incompetent.

6. OSI's salt-the-earth strategy has also hurt SPI, because SPI also claims rights to the "Open Source" certification mark:

   From SPI's trademark page: "Open Source, Open Hardware, and Debian are Registered Certification Marks of Software in the Public Interest, Inc."

   Remember:

   1. SPI and OSI both say they own the mark.
   2. OSI ignores correspondence with USPTO, and the mark's registration lapses.
   3. OSI decides to register a different mark instead, something that would unquestionably be associated with them.
   4. When announcing the registration of this new mark, OSI then hurts SPI's chances of registering "Open Source" by claiming the non-fact that it can't be done.

   OSI is practicing community involvement by (perhaps unintentional) vandalism.

   OSI is destructive.

   (By the way, SPI is definitely not a "registered" mark, so SPI shouldn't claim otherwise.)

7. If OSI doesn't want the mark, they should instead have assigned any common law rights they might claim to it to SPI. I'm guessing they could have done this. I'm guessing they still can. I really don't know, but such an action would be the only scrap of moral dignity they could possibly recover from their actions so far. (If they do, SPI might want to create a separate organization to hold it and their other marks.)

   OSI can make amends.

The "Open Source" term was registered as a service mark to bring a little sanity to the advertisement of free software. If a company advertises a product as "Open Source," those viewing the advertisement can be confident (theoretically) that the program's license allows free redistribution and modification. If it doesn't, then the owner of the "Open Source" mark can bring legal action against the offender; therefore, the mark is a clear sign that you're getting free software.

Unfortunately, there's a deadly flaw waiting in the wings. Since the ownership of the mark is in dispute, if either organization ( OSI or SPI) takes legal action, the offending software company will argue that the mark belongs to the other organization.

This will have the effect of playing the two organizations off each other, and ultimately destroying the effectiveness and purity of the "Open Source" term. That would be a blow to our movement, since "Open Source" has become, in the past few months, the term under which many of us identify it.

The ownership of the mark must be resolved, soon, before it has to come before a court. I personally don't care which of the two feuding organizations ends up with it; I trust both to use their best judgement to administer the mark. But it has to belong to only one of them.

Eric, Bruce: one of you must display maturity and selflessness and give up your claim on the mark, before you pull it apart like two children in a tug-of-war that ultimately breaks the toy in dispute.

Debian is made by it's developers. The Debian project isn't a formal legal entity, but a self-organising group of volunteers under the Debian constitution.

SPI was orginally created as a legal entity to foster Debian development (e.g. for companies to have something to donate equipment and money to). SPI nowadays supports other free software development projects besides Debian.

I have not been happy with some of the OSI's actions and with its organisational structure. But I know a potential improvement when I see it. This mailing list is. I urge those interested in free software licensing issues (e.g. the debian-legal subscribers and misc.int-property and misc.legal.computing readers) to join. License dissemination is best done in the open.

And now that work is done on reorganising SPI into an open and democratic organisation (join the spi-general list if you're interested), it will hopefully be able to manage the Open Source mark itself in the not too distant future.

>Nobody owns a trademark on the term "Open Source".

From the SPI Trademarks Page:
Open Source ... [is a] Registered Certification Mark[s] of Software in the Public Interest, Inc....The Open Source trademark is managed by Eric Raymond on behalf of the free software community.

I think that a "certification mark" is still protected from improper use. Unfortunately, the status of the trademark/certification mark appears to be uncertain because of a dispute between SPI and OSI, which publishes the open source definition. (You cited "prior use", which only applies to patents. Multiple trademarks may be granted for one term, if they are in unreleated fields.)

I'm a little confused by this:

SPI still owns the Open Source trademark. Ask the USPTO.

(I'm assuming that you're referring to the United States Patent and Trademark Office?...I've never actually heard of such a place (what being Canadian), but it's the only expansion that made sense in this context :)

I was under the impression that you (Bruce) had handed over ownership of the trademark to Eric. On the front page of the opensource.org website, there's the following paragraph:

---
The phrase `open source' has been registered as a certification mark. You can examine the Open Source Definition that sets the conditions for use of this mark. You can read about software that qualifies and our branding program.
---

Yet on this page of the SPI website, it appears that the trademark ownership is still in dispute.

Should the resolution of this dispute be of fairly high priority? I mean, yeah, the APSL is being disputed, but if it -weren't- being disputed, would Eric be able to officially dub it "open source" if the OSI doesn't own/control the trademark?

Why hasn't this been resolved? The SPI page is dated Nov 24 1998. What's the current status of the dispute? Who is actually officially and legally in control of the mark?

- deb

Software in the Public Interest, Inc.. See the US Patent and Trademark Office entry for "Open Source" (http://trademarks.uspto.gov/cgi-bin/ifetch4?ENG+A LL+3+921980+0+1+141168+F+2+2+1+MS%2f Open+AND+MS%2fSource (sorry, trying to make a out of it failed).

4) What has RMS said about the Freeness of the APSL?

Not much so far. RMS primarily communicates through email. In Aachen he told about getting RSI from coding; presumably he still suffers from this.
He's being included in a thread on spi-general, so we'll learn of his opinion soon, I hope.

5) If I see one more /. article pitting ESR against BP, I am dropping BOTH and going with RMS. It's getting so that he is the only NON-crazy one.

Bruce isn't the only signatory. It's signed by the Debian project leader (the Open Source definition is essentially the Debian Free Software Guidelines (DFSG) with Debian-specific references removed), and the president of SPI.
And while I have a lot of respect for RMS, he isn't without faults either (GPL v LGPL, not admitting to the reality that FSF gcc development is dead and succeeded by EGCS, attempts to micro-manage Debian when it was still an FSF project). Free software shouldn't be about egos, but about principles.

Bruce

The Apple Public Source License - Our Concerns Bruce Perens , Primary Author: The Open Source Definition. Co-Founder: The Open Source Initiative.
Wichert Akkerman: Debian Project Leader.
Ian Jackson: President, Software in the Public Interest. Author, Debian package installation tool `dpkg'.

We welcome Apple Computer, Inc. as a participant in the Free Software Community. We feel that a few problems in the present version of the Apple Public Source License (the APSL) disqualify it as "Open Source(TM)" or "Free Software". We hope that Apple can address these issues to everyone's satisfaction.

The participation of companies like Apple and IBM should be considered in the same way as the participation of any free software developer. Everyone is welcome to make a contribution. Individually, we each decide whether or not to accept a particular developer's contribution, for reasons that range from technical to legal and licensing concerns. We openly discuss these issues before our community, often quite harshly, as a means of developing consensus and charting our course. One consensus that we've reached is the Open Source Definition, a generally accepted definition of Free Software licensing, written by Bruce Perens and the Debian GNU/Linux developers in 1997.

We note that much of the material that Apple has just released under the APSL originated at The University of California, Berkeley and at Carnegie-Mellon University. That work was sponsored by the U.S. Government, paid for with our taxes, and was already available as Free Software under the BSD license and other well-accepted Open Source licenses. Many of these files do not significantly differ from the pre-Apple versions except that they bear the addition of a new copyright and license. Other files are entirely authored by Apple or bear significant modifications that should indeed be considered Apple's property. Where Apple has not significantly modified individual files from their pre-Apple versions, their original licenses should be preserved without the addition of the APSL.

Section 2.2(c) of the APSL requires that the producer of modifications to APSL-licensed code use a particular URL in the Apple.com domain to notify Apple. While the demise of Apple Computer, Inc. is unlikely in the near future, that sad event would leave us unable to comply with this section of the APSL. This would constitute a restriction on all rights granted by the license, including those rights necessary to qualify under the Open Source Definition. The Free Software community plans a very long lifetime for its software, and we hope that Apple will cooperate by changing this provision so that APSL-licensed software could survive without Apple. We suggest that the simple publication of modifications, such as posting on a personal web site accessible to the global internet and pointed out in any binary distributions, be all that is required. This is consistent with other licenses in our community.

Section 9.1 of the APSL allows Apple to terminate our rights to use any or all APSL-covered code, at its sole discretion, in the event of an unproven claim of infringement, no matter how specious. This is derived from a similar objectionable portion of IBM's Jikes license, which disqualified that license from being referred to as "Open Source". We hope that Apple will consider the investment that members of the Free Software community will put into APSL-licensed code when they write modifications for it. An arbitrary termination could cause us to suddenly lose that investment at some future date, with no chance for appeal. The licenses accepted by our community do not provide the possibility of termination in this manner. If termination due to an infringement claim is to be allowed at all, it should be explicitly limited to the particular source-code lines that are considered to infringe upon an existing patent. This would make it possible for the free software community to "write around the problem" and create a non-infringing version. The authors of the APSL apparently did not consider that patents expire. It should be possible for us to store infringing code for restoral to use upon the expiration of the patent in question. Apple might also consider if it's possible to allow third-parties to defend the disputed code from an infringement claim that would cause us all to lose our rights under the APSL.

We also regret to note that that Eric Raymond, with the best of intentions, jumped a little too fast to embrace the APSL in his enthusiasm to welcome Apple to our community. He placed the Open Source designation on a license that wasn't quite ready for that. We invite Eric and other members of the Free Software community to join us in requesting the few simple changes to the APSL that we have outlined in this letter.

Contact: Bruce Perens <bruce@perens.com> 510-526-1165 (USA) Links to Relevant Information

• The Open Source Definition.
• The Debian Free Software Guidelines, from which the Open Source Definition is derived.
• Is Your Software In Danger of Termination, an open letter on the topic of license termination.
• Debian GNU/Linux and GNU/Hurd Distribution.
• Software in the Public Interest.

SPI == Software in the Public Interest;
OSI == Open Source Initiative.

The title has it correct: it's his resignation from OSI.