OSI To Crack Down On "Open Source" Abusers

munchola sends us word that the Open Source Initiative is getting tough on any vendors who claim to be open source despite not actually using a license approved by the OSI. In his blog post, OSI president Michael Tiemann writes: "Enough is enough. Open Source has grown up. Now it is time for us to stand up. I believe that when we do, the vendors who ignore our norms will suddenly recognize that they really do need to make a choice: to label their software correctly and honestly, or to license it with an OSI-approved license that matches their open source label."

Comments

Is "Open Source" a registered trademark?

[AusIV]

Is "Open Source" a registered trademark? If not, I don't think the OSI gets to decide which licenses are open source and which aren't.

Re:Is "Open Source" a registered trademark?

[Bruce Perens]

The trademark was applied for years ago, and then OSI abandoned it on, in my opinion, really bad legal advice (sorry, Larry, but that's how I call it). It's still a common-law mark. Maybe they should try to re-register.

Bruce

Re:Is "Open Source" a registered trademark?

[steveaitken]

Looks to me like they should approach this by making an 'osi approved' sticker to stamp the software, rather than saying that 'open source' is the 'osi approved' sticker. I can understand their concern - as people tend to label open source as 'good' where there may be a clause in something that is claiming to be open which charges you loads of money..

Re:Is "Open Source" a registered trademark?

[morgan_greywolf]

Unfortunately, registration gives almost automatic 'evidence of first use'. And with someone else registering it (for maybe a different, but still-related purpose), it looks very bad in court. Judges and juries don't know anything about the history of the term 'open source,' and when they have a bunch of paperwork in front of them saying someone else owns 'open source', and with other people using the term generically without OSI defending the mark, well...it looks bad. In the U.S., failure to defend a mark means you lose it.

Re:Is "Open Source" a registered trademark?

[iminplaya]

Well, maybe they can sidestep the whole lawyer/court thing by simply putting up a list of those that don't "comply" that we all can refer to. If the community is all it's cracked up to be, then it can use its economic clout to effect a change of behavior. No lawyers, no judges, just money...the way nature intended.

Re:Is "Open Source" a registered trademark?

[grylnsmn]

Then the solution here is fairly simple. Reapply for the trademark as it relates to software.

Otherwise, they have no real basis to insist that anyone stop using the term "Open Source". Just because the OSI has published a definition of "Open Source" doesn't mean that it is the only possible definition, nor that they are the only ones who get to decide what is or isn't "Open Source".

The FSF has published various forms of a definition for "Free Software" (although not specifically calling them "definitions"), the most famous of which is emphasizing "Free as in speech", but that doesn't mean that they get to decide who can use the term "Free Software". Because there are so many definitions of "free" and "open", there is really a lot of wiggle room for what you can call each one.

If you can't get the trademark on "Open Source", then the other solution is simple. Rather than complaining that they use the term "Open Source", because they don't meet your definition of the term, phrase it as "Their license is not OSI certified". That changes the tone from "cracking down" on using ther term "Open Source", back to the real important focus: the OSI definition of "Open Source".

Re:Is "Open Source" a registered trademark?

[Bruce Perens]

OSI may be wrong to assume they can push around vendors to adapt to a very strict sense of "open source"

Well, if we don't have a strict definition, think of what would happen to you. Right now, you can use any software that is Open Source. As a just plain user, you don't need to read the license, you don't need to consent, you know that you can use it for any purpose because the Open Source Definition guarantees that. Now, if we loosen up what we call "Open Source", about the first thing that will happen is that it will be applied to "Educational Use Only" software. And one day you will be using that stuff without reading the license, and you'll get sued. Or we'll have Badgeware, and one day you will have a legal requirement to display 100 different logos on your web pages for all of that badgeware that it's built upon, and lawyers will get after you because your web site doesn't display the "Booted with LILO" icon and the "Preprocessed with M4" icon. Well, not those exact programs but you know what I mean.

So, the bottom line is that the strict form of the Open Source brand has value to you. Bruce

Re:Is "Open Source" a registered trademark?

[Rycross]

Hey Mr. Perens, I don't mean to pick on you but I've seen lots of claims of astroturfing on Slashdot recently, and I'd like to say that, just because someone's views and opinions differ from your own doesn't make it astroturfing. Sometimes people just believe certain things:

Astroturfing is a term for formal public relations campaigns in politics and advertising that seek to create the impression of being spontaneous, grassroots behavior. Hence the reference to AstroTurf (artificial grass) is a metaphor to indicate fake grassroots support.

From the wikipedia article.

Its been insinuated that I was an astroturfer when I just held a certain point of view. I bring this up because accusing people of astroturfing is counter-productive. I am willing to, and have, change my opinions in the face of a good argument, but being accused of being an astroturfer makes me far less likely to listen to your point of view.

Re:Is "Open Source" a registered trademark?

[augustz]

Also sad to see the Open Source mark go, I always that it nice and elegant, as Free Software was obviously out, we simply created a new name for things, and could define it.

The FairTrade commmunity has been very successful following this approach. A proper trusted description can be very powerful these days with so much "bogus" stuff out there. Once trusted a mark means a lot to people.

I notice there are a ton of commercial marks using Open Source as part of their name, many in overlapping fields. It would be fantastic if it could be re-registered, but I think challenging with the proliferation of uncontested open source marks to enforce as cleanly.

But a great idea at the time, and glad to hear some effort will be made to work with "Open Source" vendors who aren't.

Re:Is "Open Source" a registered trademark?

[soulhuntre]

So, the bottom line is that the strict form of the Open Source brand has value to you.

No offense... but it doesn't. There is now ay I woudl rely on that little branding as the basis for a legal decision on what I could, or could not, use that code for. Certainly not as long as the GPL counts as "Open Source" and carries with it so many restrictions and "gotchas" about how I can use the code. This will get worse with the GPL3.

The simple reality is that the decision to use, or not use, "open source" code is a complex legal one, and no sticker or "approved by" will change that... especially given the types of licenses that currently count.

Additionally... "open source" is a common term that has common, obvious meanigns aside from yours IN YOUR FIELD. Trying to enforce a trademark on it would be silly and fairly obnoxious.

Hmmm

[El Lobo]

Not using an "approved" license doesn't mean that the program is not OS. That only means that the program is not Open Source by the rules of (insert the tyranic powers you like here). I can write a program and publish it with the source with the license "Do whatever you want with it but don't call me "Shirley"". And this IS an Open Source program like it or not.

Politics sucks , but software politics sucks infinitly more. And don't get me started about software religions, of which Open Source is one of it's maximal exponents... ewwwkkk.

Re:Hmmm

[nomadic]

Actually, we're just trying to enforce our trademark on Open Source. If you don't like our trademark or our ownership of it, use a different term, like Shared Source, or Source Available. If you want to use the term that we have spent years and dollars promoting, then you have to do it under our terms (which are very reasonable).

You don't have a trademark on Open Source.

Heh..

[mikkelm]

So, they're all for open software and open licensing and open everything, but only if it's the kind of open approved by them?

Apparently it's okay to attempt to monopolise a market, as long as you're convinced that your intentions are noble. "Open Source" is not a trademark or brand name. It's a philosophy that's free to be interpreted by anyone. Including the user.

Re:Heh..

[Yvanhoe]

You can't put a "Free meal" label on the front of your restaurant if you don't provide free meals.
You can't put a "Open Source" label on your software package if you don't provide the source.

This is not about trademark infrigement, this is about deceptive marketing. The OSI has a good position to make such attacks, but anyone could do so, on the same ground.

Re:OSI forcing licenses?

[mulvane]

Wish I had mod points. I think you are correct in your statement. Its about someone having control. The license should be its own control mechanism and if a license doesn't live up to what its supposed to, the community as a whole will decide what happens to the code behind it. I don't need OSI to tell me that some company didn't live up to there standard of open source. That's my decision to make.

Open Source branding has value - let's save it!.

[Bruce Perens]

The problem is that if nobody enforces standards for the "Open Source" brand, then anything, whether or not it even includes permission to modify the code or redistribute it, will be called Open Source. OSI acts to certify that software conforms to the Open Source Definition. This definition is available for anyone to read and craft a license to fit it. However, we certainly don't need more licenses - there are so many now that the combinatorial problem causes developer pain.

Bruce

Re:Open Source License Monopoly...

[Bruce Perens]

Sorry, your comment doesn't make sense. This has nothing to do with who wrote the code, or the GPL. It has to do with the license of the code being compliant to the Open Source Definition, and the source code being available. If we don't demand that of people who brand their products as "Open Soucrce", anything - whether it has source code or not - will be called "Open Source".

Bruce

Re:Open Source branding has value - let's save it!

[_Hiro_]

Then why not just make an "OSI Approved" logo, and license the logo to only be used in conjunction with software that is completely under an OSI Approved License? Then the OSI can associate said logo / "OSI Approved" mark with "Open Source" through conferences and other marketing...

Because, honestly, if the OSI claims that my Java projects from my Data Structures classes (Which are Kopylefted, per Discordian whim) are not Open Source, I would be rather offended.

Either that or make the Open Source license list Open Source, so we can all check in any nominated-and-seconded licenses. Otherwise Open Source as a whole just became closed.

While we are at it...

[mpcooke3]

I get really annoyed by a lot of people who claim they are called "Matthew".

So here's what I propose: let's all agree-- citizens, press, governments, and others shall use the name 'Matthew' to refer only to people who I have granted an official MPC-Approved license and follow the official MPC approved "Matthew" practices.

Otherwise, let's face it just about any plonker could call themselves Matthew, and we really don't want that.

Yours,
Matthew.

The "Real" mark for dairy products

[Omnifarious]

When all kinds of vendors were marketing fake cheese as cheese, the dairy industry got together and made up the 'Real' mark. I don't see this as anything different. I'm really happy with the 'Real' mark for dairy products, and I'm similarly happy with that sort of a mark for software products. If nobody decides that Open Source means something in particular, soon it won't mean anything at all and will be a completely useless word as applied to software.

Today it happens to be the irritating and not hugely awful problem of badgeware. Tomorrow it will be some vendor that attacks something more fundamental like free redistribution.

So, I'm happy the Open Source Initiative has taken this stand. It's the right thing to do. It's easier to monitor the reputation of one organization than it is to monitor the reputation of thousands. So we can all decide for ourselves if the OSI suddenly decides to refuse the use of the trademark to random companies that really are Open Source.

Re:It's my app, I'll license it how I want

[TheNicestGuy]

I call them open source and likely will be doing so again, and I will license (or not) my application however the hell I want to (or not at all)

If you market an application and describe it as open source, but you don't at the very least offer the source code to be viewed by anyone who asks, that's a good candidate for misrepresentation, which can get you in front of a judge. The stand-alone term "open source" may have yet to be rigidly defined by the courts and/or the FTC, but that doesn't mean it means whatever you want it to mean.

Re:Open Source License Monopoly...

[tomstdenis]

I gave out software as public domain calling it "open source," is that OSI blessed? Should I be shamed for not using a license?

I make my statement by just not using software that annoys me. You won't find Windows on my desktop. You don't see a 360 by my TV, you won't see many Sony BMG CDs around my stereo, etc. I don't need a soapbox bigger than my posts to /. to comment on those that have business practices I disagree with.

Tom

Re:Open Source License Monopoly...

[cbreaker]

But they didn't use the TERM "Open Source" because their software is NOT Open Source. They created a new term that better matches their program.

Whether or not YOU see it that way, obviously Microsoft did, and so does the OSI. The OSI and company branded the term "Open Source" and I think they have every right to make it known when someone tries to use the term for deceptive marketing practices when their product is actually not Open Source.

Re:More than just seeing

[Rycross]

The argument is that he doesn't believe that OSI has the authority to define Open Source, and thus he doesn't view your definition as the official definition. In the absence of a trademark, the official definition probably defaults to whatever the community at large believes open source to be.

I remember Linus catching flak for trademarking Linux, but it looks like he's vindicated now.

Re:More than just seeing

[drinkypoo]

How do you think new words happen? People define them. So, I took that authority.

The problem with this idea is that the word "Open" already had a meaning within the computing community. It did not mean "you have the right to freely distribute". It meant that specifications and in some cases source code were open, and that interoperability was not only welcome but encouraged through this sharing of information.

So a lot of us, myself included, object to this redefinition of the term. It's not like Open didn't mean anything to the computing community before.

Your attempt to railroad the meaning of a word is no more appealing than any other.

By contrast, the term "Free Software" is acceptable [to some people, including myself] because free-with-a-capital-F is subtly but meaningfully different than free-without-a-capital-F, and the difference is emphasized daily.

The fact that the somewhat widespread use of the term "Open" predates the OSI substantially weakens your position, IMO.

Mind you, it's not that I don't appreciate the positive things the OSI has done for me. That's not what I'm saying. I am stating only that I resist this unnecessary and inconsistent alteration of the meaning of the word.

Re:More than just seeing

[Bruce Perens]

What you are talking about is "Disclosed Source Code". It already has a name. It also has a problem. Companies go out of business. And then you get a situation where nobody can fix it.

Bruce

Re:More than just seeing

[Hatta]

What makes your definition the official definition any more than anyone else's? If you try to sue someone who's inappropriately using the term, a judge is going to ask you the exact same thing. You're going to need a better answer than "we got there first".

Re:Muddying the waters - "commercial open source"

[soulhuntre]

The message of the OSI is that "Open Source" has a specific meaning

Playing bullshit games with the capitalization does not make the mark unique. The simple reality is that the terms "open source" were in common usage long before the OSI and the GPL and make sense with out their approval or butt kissing.

The OSI wants to build a brand? Go for it. Give out "OSI Approved" stickers. Give out "Bruce likes it!" stickers or "Stallman Approved!" logis. Whatever... but tryign to use ommon terms int his way is just stupid.

Re:More than just seeing

[Anonymous Coward]

"we will have handed a victory to Microsoft for no good reason."
Isn't that just a lovely bit of FUD?
What I don't think you understand is we don't want a dictator even a benevolent one saying what Open Source is or isn't. If you don't own the trademark on Open Source then you have no legal right to do anything. For the most part we are adults and know what is Open Source what is closed Source and can decide when it is in our best interest to choose one or the the other. I published my first Open Source program over 20 years ago except I called it public domain. There was no GPL then but I heard about RMS's idea that giving away your source was a good idea so people could learn from it and improve it. I don't like you thinking that I must follow your ideas so you can protect me from the "Evil" Microsoft.

Frankly your last post raised a lot of red flags for me. It reminded me of a line from an old song, "And the things that they fear are a weapon to be held against them."

Re:FOSSies throw a tantrum

[MightyMartian]

So, because it's free, somehow the licenses that some of these outfits agree to by even using the code shouldn't be enforced? If I paint a picture and give it to an art gallery specifically to display for free, and they turn around and violate the agreement by selling it to a private collector, I should just go "Oh well, I gave it away."

There's a reason for GPL and other licenses, and that's to make sure what is free *STAYS* free.