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"Open Source" Not Trademarked After All?
Mike_Miller writes "According to a ZDNet Article, the term "Open Source" is not, and never has been,
trademarked. Quote: "The term has never been a registered trademark, and it's
no longer even pending registration."
" Oh dear. Update: 06/15 02:30 by CT : ESR wrote in to say "Hey, chill, everybody. OSI was planning to issue a statement about
this matter after our Wednesday board meeting (despite some of the
rumors going around, we do operate by consensus; this slows us down a
bit sometimes). So if you'll wait a bit, all will be made clear.
In the mean time: don't panic!"
Excuse me?
Doesn't someone unfailingly bring this point up every time Perens and Raymond have a love tiff? Doesn't everyone here invariably then agree that this is the case? Haven't we repeatedly said that the term is much too generic to be trademarkable? It's like trademarking the term shoe. Can I get through this post with a bold word in every sentence? Inquiring minds want to know.
Insightful? You've got to be kidding moderators. A trade mark is, as one might expect, a mark used within a trade. Anyone can have what the law will call a trademark. The only issue is when one wishes to *register* that trademark.
And don't go bringing OOP garbage into this. It's a little less than relevant. Hell, look at 'AT&T', or '3M'. I'm assuming knowledge of those acronyms. Hardlly a hint of 'je ne sais quoi' in there. No, the term Open Source doesn't refer to specifics in software. It refers to a way of doing business. It may very well be the mark of someone's trade. And it is therefore trademarkable.
And please don't give me this 'close your eyes... if you can't imagine its physical manifestation then it can't be trademarked.' business. A trademark is a trade mark. Simple as that.
Regards,
--
PS> Everything you ever write is copyrighted as soon as you hit the paper. All you have to do is say so.
what the hell are you talking about? i can assure you that, as a member of ASCAP (American Society of Composers and Publishers.. check any CD you own), you certainly need more than to say "XYZ is my copyright" for it to be an actual copyright. simliarly, you need to do more than say "XYZ is my trademark," in order that you own XYZ as a trademark.
All you have to do is claim copyright to have the copyright. I know a few programmers that actually print their source, mail it to themselves, and save the sealed envelope with the postmark on it to insure the date of the copyright as well. (paranoid group, but rightfully so)
Erik
The term "Open Source" is not, and never has been, *nor ever will be* trademarked. Here is an excellent url that explains why:
http://www.wld.com/conbus/weal/wtradmk1.htm
The author says (in a snotty tone of voice) that he is glad the term Open Source is free as what it represents. Actually this doesn't make any sense, because now anyone else can snatch the name up and take it away from public use. GPL'd software is not public domain. It is copyrighted and that is why GPL'd software can not be taken over by one company. That is the same protection you need for the term Open Source.
This is old news. It's too generic of a term anyway.
SPI and OSI had come to an agreement as to how to handle Open Source. It didn't get officially announced prior to this mess which ends up boiling down to a paperwork issue. How do I know all of this? Well, I asked! =D
Lots of people say we don't need commercial support, and I totally disagree with them. We certainly need all the support we can get no matter where it comes from. On the other hand, we don't need Evan Leibovitch or his kind or their snotty attitude and general contempt for all things which do not line their pockets.
Posted by FascDot Killed My Previous Use:
How is this different than yesterday, when "open source" wasn't trademarked, we all knew it wasn't trademarked, but that fact hadn't been published?
Are we worried about Microsoft stealing the term? Gosh, too bad. We'd have to go back to what we really mean: Free Software.
You see, the issue isn't over whether I can read the source code (or rather, that's not the full issue). The biggest issue is whether I can do whatever I want with it. "Open" doesn't describe this condition very well, which is how we got saddled with so many "read-only" licenses.
I'd go on, but I'm sure some brain-dead moderator already thinks this post is offtopic, a troll or flamebait...
--
"Please remember that how you say something is often more important than what you say." - Rob Malda
Posted by FascDot Killed My Previous Use:
It's perfectly legal for Company X to provide me with BSD binaries with no source code. The license does nothing to prevent this. Therefore my copy of BSD may not be free.
Linux providers, OTOH, are required to provide source code under the GPL, which guarantees the freedom of the software I get.
--
"Please remember that how you say something is often more important than what you say." - Rob Malda
Posted by FascDot Killed My Previous Use:
SPAM!
Lemon curry?
--
"Please remember that how you say something is often more important than what you say." - Rob Malda
Posted by FascDot Killed My Previous Use:
CareBearWare?
NoSnareWare?
StarWare?
JediWare?
ForceWare?
--
"Please remember that how you say something is often more important than what you say." - Rob Malda
Posted by Jdahlber:
Descriptive combinations of words such as "Open Source" are too widely used at this point for someone such as MacroHard to snap them up. Once a phrase is used by a large group in an industry it is not available for register by any individual entity. Basic intellectual property law covers this so no one needs to worry.
Posted by FascDot Killed My Previous Use:
"Their choice. That's freedom."
Yes, but only for them.
Think about the Old South. Wealthy slave-owners owners were perfectly free to sell, beat, kill, etc slaves. Was there freedom in the Old South? No.
Same here. BSD affords freedom to a minority, but at the potential expense of the majority. The GPL puts minor restrictions on the minority (must republish mods if binaries are distributed) so that the majority can retain their freedom (access to source code and ability to modify/redistribute).
As for getting the source elsewhere: Not for long, maybe. After several years of secret improvement by Company X, I'd hate to start over with the base BSD code and reverse-engineer everything thing Company X did.
--
"Please remember that how you say something is often more important than what you say." - Rob Malda
Posted by FascDot Killed My Previous Use:
... fn) to F and re-releases under License L1.
... fn) is available to everyone.
... fn).
... fn) is inaccessible. Sure, the original source code is available, but what if I need f1? I'm SOL, unless I expend the resource to reengineer. You may remember this part from my first post.
Step 1: Group of Programmers G creates Program P with Feature Set F and releases it under License L.
Step 2: Company C takes P, adds (f1, f2, f3,
Now, if L = GPL, then L1 = GPL and the source code to (f1, f2, f3,
If L = BSD, L1 can be anything at all, including a license that hides the source code to (f1, f2, f3,
At this point we would have a code fork. And not just any code fork, because source code for (f1, f2, f3,
And as time goes on this only gets worse unless someone is working their hump off to play catchup to Company C--and it is all duplicated effort. Incredibly stupid.
Why not just use the GPL to ensure fair play by all? Sure, having a referee on the baseball diamond takes a little freedom away--but only the freedom to cheat.
--
"Please remember that how you say something is often more important than what you say." - Rob Malda
>First, IANAL, but i think it's patents which expire if not enforced.
No, it's trademarks. (Kleenex, Xerox, etc.) Trademarks last forever if protected, it's only through failure to protect that they can be lost. (This has led to some annoying abuses of the trademark concept being used as a substitute for copyright. You can distribute the original Tarzan story, but you can't write new Tarzan stories, for example.)
While open source might be trademarkable, it would be extremely hard to protect, simply because it is so widely used already.
I'd almost suggest "gnuware" as an alternate term, but I suspect X and BSD license users would object based on the implied GPL bias.
Ooh, a sarcasm detector. Oh, that's a real useful invention.
Immediately one would panic thinking Microsoft
will try to trademark the term, but guess what:
1. Microsoft has already much overused similar
terms like "open API" and "open interface"
throughout their literature and it has not been
a problem of being confused with Open Source.
2. Microsoft, for the time being, seems to frown
on Open Source and would rather not have their
products be misconstrued as Open Source -- at
least until their PR people wake up and realize
that Open Source is a good term to be associated
with, then you will see Microsoft using the
words "Open Source" on all packaging and product
literature.
3. Microsoft could care less who owns
the legal trademark on any word or phrase
-- if they want to
use the term Open Source they will anyway and
anyday -- what are you going to do about it?
Sue them? Take them to court? If the DOJ can't
stop Microsoft from doing whatever it feels
like then who can?
Trademarking this term is an obvious attempt to protect its meaning, which is a very important thing in the computer industry, or any technical field.
:)
In a perfect world, a 17" monitor would be SEVENTEEN inches on the diagonal, a 56K modem could transfer 7KB/s, a Java applet would run on all platforms with any Java Virtual Machine, a 300Mhz processor wouldn't have a performance rating, but would actually run at 300 million cycles/second, etc., etc.
Standards *need* strict definitions to protect them from marketing. In my mind, Open Source doesn't mean "free", or "I get to see some source code", it means compatible with the DFSG--the Debian Free Software Guidelines. That interpretation is a strict interpretation on what Open or free means. It doesn't mean certified by the Open Consortium, or it's freeware. In fact, if it didn't sound so stupid, I'd suggest replacing the term 'Open Source' with DFSG-compatible, because it gets across the meaning.
...but here I am foiled yet again by the forces of marketing and hype, which you so clearly represent. I guess I'd be happy enough if we just had an RFC defining what Open Source is. (I haven't read them all, so maybe we do...
pb Reply or e-mail; don't vaguely moderate.
I keep seeing the claim that the term "open source" was used before ESR and firends started to promote it as a more precise alternative to "free software". However, I don't remember seeing the term used before. Even Sun, who at one point called everything something starting with "Open" (their bug database was called "Open Bugs") didn't use it.
Can anyone point to some writen document, using the phrase "Open Source", dating from before the O'Reilly open source workshop?
> Let's say I acquire a GPL'd program and add
> a function to it.
The GPL ensures that you _can_ add this function. The right to enhance and redistribute the software you use is (to rms) a fundemental freedom, just like free speech. That is the freedom that the GPL protects.
You are also allowed to take money for the function (thus, no free beer). You just can't deny other the same freedom you yourself received.
Maybe there shouldn't be any strings attached if it is given. I don't consider GPLed software to be given. It is shared.
/mill
Those who don't want to be part of the community in which GPLed software is shared don't have to. The community gives freedom to those who don't want to deny others the same freedom.
Btw, I am not allowed to kill someone else either and even though that might reduce my 'freedom' I think it is perfectly acceptable limitation. I am not allowed to make GPLed software non-free and that is also an acceptable limitation.
Just like you can't expect to get the benefits of society without paying or in some other way give back to society you shouldn't expect to be able to take GPLed software and use in your proprieraty products. GPLed software is the currency that is used in the GPL community.
"Flash-in-the-pan" popularity? You just can't get over that Linux might be more successful than the various BSD variants, eh? Heck, what if the reason for this is partly due to the GPL? Looks like jealousy to me.
And if you'll follow the Check Status link at the top of that page you will find that it is listed as abandoned because of applicant failure to respond to an office action.
Shawn Asmussen
Microsoft and others have been using the term 'Open' long before Linux was even four lines of source code.
I subscribed to Open Systems Journal for years, yet it had nothing to do with Linux or GNU.
The Open Software Foundation created their own version of Unix and had nothing to do with Linux or GNU.
Open means you have published the specs on how to interface with your hardware/software. I suppose by extention Open Source means you've published the source.
And if Microsoft wants to call something Open API, then they are using the term correctly... as it has been defined by the computer industry.
That's what made this so ludicrous. ESR comes along in 1998 to define a term that has been in use since at least 1990. Sheesh.
It's already protected by common usage.
If someone tried to trademark it now pretty much anybody could pull out a copy of Infoworld dating back to last year and say "What are you talking about?"
I'm at the point now, where I just don't care
about "Open Source" and whether or not there is
a trademark to "hopefully" be defended by
someone. If they don't defend it as we think
they should, then it is worthless to us anyway.
The true meaning has, and always will be, defined
as RMS has defined it.
I'm not sure you can define one term to mean
what is meant. It would seem that no matter
what you do to define a term, everyone will still
define it as whatever they want. You will need
to use multiple terms and/or words to completely
define the meaning you wish to convey.
Who cares if "Open Source" isn't a trademark, what
would that mean anyway? We define what it means
by the license we apply to our software.
Derry Bryson
You just wish your ID was as low as mine! I used to be proud to have such a low id, but not so much now. Slashdot most
The FSF is offering to pay $20K for someone to write a GNOME programming manual. I think they probably can afford to hire an intellectual property lawyer (in fact, I think they probably keep one on retainer).
--
Aaron Gaudio
"The fool finds ignorance all around him.
"Every man is a mob, a chain gang of idiots." - Jonathan Nolan, Memento Mori
What's wrong with open source? Now that we don't have to worry about OSI controlling the term, it merely becomes a subjective term. BTW, all these alternatives are more alternatives to "Free Software" than "Open Source" (following the OSI guidelines).
The only change I see coming out of this is an end to all the bickering between SPI and OSI and the elimination of rogue organization (such as the OSI, rogue not because they are bad, but more because they broke from SPI and for a long time at least were controlled by two charaters) gaining control of the term "Open Source".
If an institution chooses software because it has a buzzword of Open Source but isn't, then they get what they deserve for not fully understanding the buzzword.
--
Aaron Gaudio
"The fool finds ignorance all around him.
"Every man is a mob, a chain gang of idiots." - Jonathan Nolan, Memento Mori
[Sorry if this posted twice, it said there was an error in the first submission]
What's wrong with open source? Now that we don't have to worry about OSI controlling the term, it merely becomes a subjective term. BTW, all these alternatives are more alternatives to "Free Software" than "Open Source" (following the OSI guidelines).
The only change I see coming out of this is an end to all the bickering between SPI and OSI and the elimination of rogue organization (such as the OSI, rogue not because they are bad, but more because they broke from SPI and for a long time at least were controlled by two charaters) gaining control of the term "Open Source".
If an institution chooses software because it has a buzzword of Open Source but isn't, then they get what they deserve for not fully understanding the buzzword.
--
Aaron Gaudio
"The fool finds ignorance all around him.
"Every man is a mob, a chain gang of idiots." - Jonathan Nolan, Memento Mori
It returns:
If you require additional information about the application status, contact the Trademark Assistance Center (703) 308-9000 (M-F 8:30 a.m. to 5:00 p.m. EST). You could also contact SOPHIA S. KIM, Trademark Examining Attorney. Click here to find out the examiner's phone number.
Serial Number: 75439502
Registration Number: (NOT AVAILABLE)
Current Status: Abandoned: Applicant failed to respond to an Office action.
Date of Status: MAY 24,1999
Bruce
Bruce Perens.
However, if OSI has let this drop, it must be deliberate. They still have a trademark, just not a registered one. They can still re-apply.
Geez, you sure give us a hard time for being the ones with the nerve to stick our necks out and do something. Want to try a mile in my moccasins, Kemosabe?
Bruce
Bruce Perens.
Bruce
Bruce Perens.
OK, I read my own response. I walked off of OSI's board because I couldn't stand behind Eric any longer. The overriding of a board vote, the constant deprecation of Stallman, etc. I don't regret that decision.
But fold up my tents? What gave you that idea?
Bruce
Bruce Perens.
The closest equivalent is the "Union Label", the garment workers union certification mark. They license it for the manufacturers to use, they do not use it in commerce themselves.
Did you say you were an attorney? Not an IP one, are you?
Bruce
Bruce Perens.
Thanks
Bruce
Bruce Perens.
Bruce
Bruce Perens.
The GPL restricts your right to take away other people's rights. It's better that everyone be allowed to modify the program than just you, and nobody after you.
Freedom includes responsibility. The GPL mandates that you behave responsibly regarding other people's freedoms.
Thanks
Bruce
Bruce Perens.
I don't know why OSI elected to drop the ball on registration. When last they corresponded with me, they had an attorney working on it. I sent the registration papers to Nils Lohner at SPI quite a while ago, and he would have forwarded them to OSI.
Evan is so darned malicious.
Bruce
Bruce Perens.
Bruce
Bruce Perens.
However, I had heard a while back that OSI had failed to respond to an office action, though I don't understand why they'd do that it was undoubtably deliberate.
I wish Evan wouldn't sound so malicious. Doesn't he understand that a trademark is the best protection against someone else registering a trademark on the same thing?
Bruce Perens
Bruce Perens.
There's been some question regarding the legal status of the Open Source certification mark. Although the mark still exists, its application for federal registration has apparently been allowed to lapse, perhaps temporarily. In February, I published It's Time To Talk About Free Software Again , because I felt that the use of the phrase Open Source had caused us to think less about the freedom involved in Free Software. What I said then still stands, and thus I'm ambivalent about the fate of the Open Source certification mark. However, the Open Source Definition is still a good idea. That document has been a very important standard: it's helped us distinguish between licenses that provide a fair return to the free software community for the effort our developers contribute, and those that don't. Many large corporations and individual developers have been influenced to use better licenses because the community insisted that they be OSD-Compliant, and that's helped free software prosper.
Now more than ever, as Free Software finally becomes commercialized, as $100 Million dollar IPOs draw the greedy as well as those who would treat us fairly, it's important that the free software community continue to insist on licenses that comply with the OSD. Our stand on licensing during the next year will make the difference between life and death for free software. Either we maintain the quid-pro-quo, or the developers who have made free software great will leave in disillusionment. Without the fair return to the free software community that the OSD stipulates, we'll be left with will be shareware-with-source, when we can get source at all.
I wrote the OSD with the help of the Debian developers, and it still exists as the Debian Free Software Guidelines. None of the presently-announced Open Source Initiative board members were involved. This isn't to imply anything negative about them, it's just to point out that they aren't essential to the preservation of the OSD. Regardless of what happens with the Open Source trademark and the Open Source Initiative, the author of the OSD and many other members of the free software community will continue to stand behind the Open Source Definition. We will insist on software with OSD-compliant licensing, and we won't donate our efforts to anything else. I hope you'll do the same.
Since there are a lot of newcomers to our community, I guess some of you might not have encountered the Open Source Definition. You can read an extended analysis of the OSD, with commentary, at this link.
Thanks
Bruce Perens
Bruce Perens.
RichardWare, or 'DickWare' for short? I don't think so. :)
---
"'Is not a quine' is not a quine" is a quine.
"'Is not a quine' is not a quine" is a quine.
Quine "quine?
We already have shareware, freeware, etc., all in common usage.
Libreware carries the connotation of "free" without its unfortunate ambiguity. No compromising of principles (as in "Open Source") and no room for misinterpretation (as in "Free Software").
It even strikes me as being palatable to the "right" (i.e. the corporate world) in a way that "liberated" could never hope to be.
I've seen the term 'freedomware' used in a couple of places. I think such a term could survive natural selection in the buzzword environment. It comes fairly close to expressing the intentions of free software and not as ungainly as 'libre software' or 'free (speech not beer) software'
Alex
Currency of the Web Database
I kinda like that, myself. Here's a vote (not that anyone's voting...) for this new moniker.
--
A host is a host from coast to coast...
A host is a host from coast to coast...
Unless it's down, or slow, or fails to POST!
As far as I'm concerned -- totally ignoring the three ring ego circus of ESR, RMS, and Bruce Perens -- the "Open Source" term didn't help to clarify matters very much as it was just as vague as "Free Software", if not more so. When Stallman said "Free Software", he meant the GPL and we all knew it. When Raymond said "Open Source", it could mean any number of things ranging from the GPL to genuine public domain to liberally-licensed proprietary software.
What we really need is to come up with a rating system, something like the "Geek Code" but not so deliberately overcomplicated, that classifies software according to a few key points of its licensing terms.
Proud member of the Weirdo-American community.
Please, people, check your facts before characterizing other people's positions (especially rms's--many people seem to criticize him based on little more than hearsay).
If a thing is not diminished by being shared, it is not rightly owned if it is only owned & not shared. S. Augustine
Leaders are an interesting thing, anthropoligically speaking.
They say things, and their followers believe them. They do things, and their followers support them.
OpenSource crusaders, seem to have chosen Bruce Perens and Eric Raymond as their leaders.
All this time, people have generally believed in what they've said about the supposed trademark, and generally supported their actions in defending it.
Now it turns out, these two fellows who've been leading your crusade and protecting your slogan, were a lot more talk than action.
How is it that a couple guys can spend so much time pontificating about their applied-for trademark and never bother to actually verify that they've got a valid, registered trademark?
It's good for people to believe strongly in things. There are a lot of important things out there to care about. Some people, unfortunately, take it too far.
Some times, some people get to the point where caring and believing in something surpasses the need to occasionally commune with reality. This is how we end up with Waco Tx, pseudo-islamic terrorism, you get the picture.
Perens and Raymond are as fanatical about free software as the day is long. It's a good cause, I won't deny that. The concept of licensing intelectual property threatens to do society a great deal of damage. It has already to some extent, but nowhere near what it's capable of. We're just getting started, to tell the truth.
I'm not here to call names. It's easy when people listen to what you say to find yourself believing too much in what you tell them.
When you accept or reject without thought, you do your leader a disservice. There are situations where it is appropriate, but this is not a life or death situation.
True collaboration is a matter of maximizing the potential of a group. If both of us agree, one of us is not necessary. Outside of close friends, family members, children, and spouses, you aren't doing anybody any favors by giving them your unquestioning devotion.
So consider this carefully. I don't think it's appropriate to point a finger at someone else until you've considered whether you should be pointing it at yourself.
This is just like television, only you can see much further.
Just some idle thoughts. With all the different "Open Source" licenses out there, it seems worthwhile to develop some kind of metric to allow someone, at a glance, to determine if the license is free (speach) enough to be used in their project(s). Two orthoganal measurements come to mind immediately: Freedom of use (what limits if any, are there?) and Protection from forking (perhaps based on historical stats of othe projects under the same license, or an evaluation of the likelihood based on the license characteristics themselves). A third might be "hijackability" of the code, though I think the other two measures cover that pretty well.
E.g. on a scale of 0 to 9, the GPL might fall have an "f" value of 7 and a "p" value of 8, while the BSD license would perhaps have an "f" value of 8, but a "p" value that is much lower. Public domain software would have an "f" value of 9, and a "p" value of 0. (Proprietary licenses would presumably have an "f" value of 0, but a "p" value of 9.) No idea how one would actually go about quantifying such things, or how to do so in an "open" manner (as opposed to, say, just appointing a committee we're all supposed to trust to do this). Whatever the solution, it seems some kind of measurable metric that has a little more precision than "so-and-so has said it meets the Open Source definition" is IMHO really needed, though.
A third metric comes to mind -- how compatible is the license with other open licenses. I.e. how much would using a particular piece of code "pollute" the rest of the code? How would one best define and measure this "c" factor?
The Future of Human Evolution: Autonomy
Where does one register trademarks again? hehe =)
--- Stampede linux for me! I play with fire to break the ice..
I don't really understand why people claim that GNU software is `free' as in `free speech,' rather than `free beer.' To me it seems quite the opposite.
Let's say I acquire a GPL'd program and add a function to it. If I had the powers of free speech, I could utter this function in any way I wanted, source or binary, to anyone. But I can't; I must not give someone else a compiled copy of that function along with source and binaries for the rest of the GNU software. Thus, my free speech is compromised in that I cannot say some things I've written in the way I want to say them.
On the other hand, the GPL does ensure that you can always get a copy of the source for a program, and any extensions, fixes or changes anybody wants to distribute, without paying any money for it (except perhaps a nominal sum to cover distribution costs). Thus, `free beer.'
cjs
The world's most portable OS: http://www.netbsd.org.
While many people may not like that kind of license (and I prefer "free software" in the GNU sense myself as well), it would still have served a useful function at that.
However, by now, the term may indeed have become too generic, since it has rarely been claimed to be a trademark when used. Maybe GNU at least should learn a lesson from that and think about claiming a trademark on "GNU", "GPL", and "LGPL", as well as their long forms.
Without trademark protection, anybody can release something under the "GNU Public License", and you may assume that you are getting the usual "GPL", but it may contain unexpected clauses. Getting trademark protection doesn't require registering, it merely requires using "TM" fairly consistently.
Trademarks ensure that people get what they think they get, and that's a very good thing in a market where companies benefit enormously from using the latest public-relations-friendly buzzwords.
Of course, there is always the risk that a trademark isn't administered well. But a well-administered trademark on the term "open source" could have ensured that people have a clear understanding of what they get and what they don't get when, say, Apple claims that their release is "open source". It could also have encouraged companies to go the extra mile to make their releases "open source" compliant, rather than having each company's lawyers make things up as they go along.
While a few years ago, the term "open source" was novel enough, I fear it may be too late to rescue the term "open source" as a trademark. And that's a big lost opportunity to anybody interested in open source.
First, IANAL, but i think it's pattents which expire if not enforced. Trademarks don't matter. Second, I hope microsoft or some other evil empire gets its hands on "Open Source" so people will stop using the damned phrase. I'm personally sick and tired of open source this and open source that. Hell we even have microsoft and al gore claiming shit is open source. It's gotten obscene. I remember the days when GNU, etc. were nothing more than software and religion. When did this all become so political?
Now onto your two points:
1) Who cares? "Open Source" is two commonly used english words. First off the trademark would never be granted. Second, it wouldn't hold up in court. Third, who cares? People will still keep using the phrase no matter what the backwards US legal system says.
2) People already are abusing the term. Al Gore described his damned website as "open source." Microsoft claimed that licensing the winNT source code to universities was "open source." Hey, my mouse is "open source" (it's just as legitimate in this sentence as it is in the others).
-matt
Guess what: Open Source still is a trademark, and always was. Trademarks are like copyrights. All Eric Raymond has to do is say, "Open Source is my trademark," and it is. If someone else thinks they have a right to it, they can contest it, but unless they can show prior usage or transfer of the mark or something like that, ESR's claim stands. The fact that Open Source is not registered in no way invalidates it as a trademark. Frankly, I'm quite astonished nobody has mentioned this yet.
Check out http://www.spi-inc.org
Here's a quote from SPI:
"The Open Source trademark is managed by Eric Raymond on behalf of the free software community. "
That's taken from the "trademarks" section of their web site.
There seems to be a mistaken assumption in the article, that "open source" is a term just waiting to be snapped up by profiteering companies and whored to uneducated consumers. This is patently wrong.
The fact is, the term "open source" has very few connotations in the mind of the consumers that translate into positive market value. People may look upon it as cool, even courageous, but that's before they go to the store. Business executives still, to a large extent, view "open source" as being synonymous with "hackerware" and "unsupported". Companies that go open source (in name) are either dedicated solely to the Open Source community for a demographic (e.g. RedHat) or are quick to skip over the term when going after corporate customers. This isn't because they are trying to hide from the Knights Errant of Free Software. They just don't need the term as anything more descriptive than an advertising ploy.
Is it really the duty of the Free Software Movement to regulate the term? I don't think so. After all, the same people that are going to continue to be influenced by a company being Open source (us) are the same people who can recognize a fraud at twenty paces. "Open Source" might not be trademarked, but "BSD" and "GNU" are, and when strange new licenses start cropping up, we will take note.
When it's all said and done, is the loss of the trademark really a bad thing? I think a much more important concept, although maybe not completely independent, is maintaining the purity of the Movement. That doesn't mean that companies have to obey strict guidelines in order to release their source and get recognition for it; if anything, that would simply scare those companies away. It just means that the people already committed to the movement need to remain productive.
The opinions stated herein do not necessarily represent those of anybody at all. Deal with it.
That's correct, but there is a reason to officially register your copyright: It increases the liability of anyone who copies it.
The opinions stated herein do not necessarily represent those of anybody at all. Deal with it.
When trademarks are held, they have to be actively enforced or the Trademark looses its validity. It seems to me that a trademark on "Open Source" would be uninforcable, at least without spending a lot of money and generating a lot of ill will, so it seems better to me that it remain untrademarked.
There are two problems with this.
1) MS, or someone evil, will register the trademark and make things difficult for Open Sources. They have the resources, but I hardly think it would be worth their while, given the difficulty of reclaiming "Open Source" from the violent and chaotic sea that washes upon it.
2) Someone will abuse the term. Possible, even likely, but I think it is better to mobilize grass roots to deal with these than to have an organization that owns the trademark and arbitrates what is or isn't open source.
I would suspect that the phrase is in the public domain (nyuk nyuk) at this stage. I'm sure someone will register it, but the first time they try to sue someone they'll come up against the combined might of the FSF and, well, everyone. It'll (I think and hope) stand up in court, even if they're willing to spend godzillions on lawyers.
Or would the fact that the SPI/Perns/Raymond application lapsed make all of the existing "open source" projects prior art to any new applicant, and thus place the term in the public domain.
Thoughts, anyone?
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
IANAL, but I think trademarking "open source" would be like trademarking "object oriented". The trademark office might grant it (since they seem to be clueless), but I doubt it would hold up in court, since many different companies are using the phrase.
Wicked Werdna, what's your opinion?
Mike
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Mike
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"Wi nøt trei a høliday in Sweden this yër?"
3rd vote for "Community Software".
(CommunityWare...? Naah!)
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- Sean
It's a fine line between trolling and karma-whoring... and I think I just crossed it.
- Sean
Seriously, to trademark "Open Source" would go against what it represents, IMHO. The term should be protected only by repeatedly using it correctly, hence making it obvious when it is used incorrectly.
Hmm... the same way it's obvious to most people when the word "hacker" is used incorrectly...?
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- Sean
It's a fine line between trolling and karma-whoring... and I think I just crossed it.
- Sean
Note the last 10 words, boys and girls: "during which the term's association with that product is exclusive."
Kinda hard for anyone to trademark "Open Source" as things stand... there you go, from a (more-or-less) definitive source!
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- Sean
It's a fine line between trolling and karma-whoring... and I think I just crossed it.
- Sean
Pure BS. No trademark can exist for "Open Source."
.htm
Check it out:
http://www.wld.com/conbus/weal/wtradmk1
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- Sean
It's a fine line between trolling and karma-whoring... and I think I just crossed it.
- Sean
No, MS is not going to trademark it.
.htm.
They can't, and neither can anyone else. Here's why:
http://www.wld.com/conbus/weal/wtradmk1
Pay special attention to Paragraph 7 (the one that starts, "A descriptive term...")
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- Sean
It's a fine line between trolling and karma-whoring... and I think I just crossed it.
- Sean
The problem with "free software" is that it is neither "free beer" nor "free speech". It is merely software with a more permissive license. To equate "follow my rules in order to use my software" to the concept of "free speech" is ludicrous.
Or to put it politically: if my free speech is predicated on the free speech of others, then my right to distribute my software as I wish is predicated on the rights of other to distribute their as they wish. To say that non-free software is slavery is to say that speeches we don't agree with are slavery.
In a world with 100% software freedom (no copyright or intellectual property laws) everything would be in the public domain, software could be released without source code, and the GPL could not exist.
A Government Is a Body of People, Usually Notably Ungoverned
I've always been partial to the term "community software". It more accurately describes the software than either open source or free. It is also a better to term to explain stuff to a non-programmer, who often times doesn't care whether they have the source code or not. All member of the community have a role in community software, whether or not they are programmers.
The problem with "open source software" is that is is easily confused with "open software" or with software whose source is available, but wholly proprietary (like MFC).
The problem with "free software" is that it tends to make people think "political freedom" and then to extrapolate non-existant political rights from it (and all the resultant political correctness).
A Government Is a Body of People, Usually Notably Ungoverned
Go and read your own response.
I use a software program called "Semprini."
(gets taken away by the police)
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Do I look like I speak for my employer?
Can someone get on this _now_? The sooner we solve this problem the better. I have a bad feeling some Eeeeevil Company takes it before you can say Microsoft.
Eh..., English is not my native language, but why not a plain and simple "public software" ??
Kees B.
(Amsterdam, The Netherlands)
First of all, you can trademark "Ford" or "GM" or whatever.
Second, you can trademark "Dolby", even though it doesn't refer to an object, but a process or set of conventions.
Like "Dolby", "Open Source" is a process and set of conventions. Like the software it describes, it needs protection, so that no one can claim to be OS when they aren't.
And its a lousy metaphor - you should have used platonic forms or Jungian archetypes if you wanted to be pretentious and nearly accurate =)
-- Oh Well
That, or "internet"
or "information superhighway"
on second thought, he can have "information superhighway."
:)
I think we need a short catchy name along the lines of "shareware" but which embodies the philosophy of open source etc. My first idea was "fairware" but thats sounds a bit lame.
you forgot to hit the "Check Status" button at the top of the page... it indeed is "Abandoned" as of May 24th, 1999.
"Open Source" shouldn't be trademarked, it should be GPL'd!
Then any changes or modifications that are made to it must be made in a public release. For example, "Open Sourced" would really be "Open Source" version 1.1. For the 2.0 version, we would have "Open Coded". A complete rewrite for version 3.0 could leave us with "Openly coded by thousands of happy programmers" and would leave room for modular based design. Then anyone could add the "who love their life" module (since it will be made freely and publicly available) to make "Openly coded by thousands of happy programmers who love their life." At this point, the boys in Redmond will compare the results of GPL'ing terms to ending up with product names like "Word" and "Works" (blah! boring!) they will have no choice but to submit to the superior ways of the GPL.
Seriously, to trademark "Open Source" would go against what it represents, IMHO. The term should be protected only by repeatedly using it correctly, hence making it obvious when it is used incorrectly.
"Windows" is just as poor a trademark as "Open Source", yet Microsoft manages to defend it.
-russ
Don't piss off The Angry Economist
So OSI is pork! huh.
So does that mean that it is not part of the GNU family?
=)
Steven Rostedt
-- Nevermind
Not to pick nits, but here goes...
What was applied for was a "certification mark" which is similar to, but different from, a trademark. To get a trademark, one must use the mark in relation to a commercial activity. As such, Open Source was never qualified to be a trademark.
To understand what a certification mark is, think about the little UL stamped on the plugs and sockets for various pieces of electrical equipment in your home. This stands for Underwriters Labaoratory, and private certification lab. They have formulated (electrical) standards, and test equipment. If it passes, it can be stamped "UL", and if it does not, it cannot be. To maintain a certification mark, one must make the certification standards public, and must apply them without bias. Microsoft uses a certification mark of its own, the little "designed for Windows 95" logo you see everywhere. For software that meets their criteria, they must allow the publisher to use the logo.
Anyway, to wrap this up, one should think about the time and effort that an actual certification program might entail. Every programmer who wants to call a piece of code "Open Source" would have to apply to the SPI, and the SPI would have to make a yes/no determination, based on their criteria. It may be that SPI decided that the hassle of such a formal program was more than they wanted.
For what it is worth, yes, I am a lawyer.
-Steve
Democracy is a poor substitute for liberty.
if someone wanted to, couldn't they just download the appropriate forms from some website and register the term "Open Source Software" now that it's been dropped?
now, what's to keep SPI from filing for trademark, again?
simliarly, doesn't "OSS" potentially face the same problem that "Linux" did, in that someone else could register and attempt to extort money from people?
Anything else?
Copyrights apply to creative works and (primarily) allow the creator to restrict the ability of others to make copies of the work, subject to certain limitations, primarily fair use.
Patents apply to inventions and allow the inventor to restrict the ability of others to make use of the invention for commercial purposes (including "free" commerce). The term "invention" is restricted to devices, processes, or techniques.
Trademarks apply to names, logos, or symbols and allow the owner to prohibit the use of the name, logo, or symbol by others in a manner which tends to create confusion or which diminishes the value of the name, logo, or symbol as an identifier for the product being sold by the owner (or licensee) of the trademark.
You cannot copyright a word, but you can copyright a calligraphic representation of the word. You cannot trademark a concept, but you can trademark a name used to refer to that concept, or at least your brand of it. Your trademark doesn't stop anyone from using the concept; all it does is prevent them from calling it (or anything else) by your trade name without your permission.
The term "Open Source" was controversial when it first came up, as those in the "Free Software" camp felt it compromised some of the principles they stood for.
Maybe now is the chance to chose a better name. Free Software advocates have long complained that there is no word in English to distinguish between free beer and free speech, although they note that such a difference exists in other language.
So why not borrow from another language? Maybe something like Libre Software (or Liberated Software even if that isnt seen as perjorative) could be used to really say what is meant. Of course this probably won't please everyone still, as I suspect that many who use the term "Open Source" really don't want to give users as much freedom as Free Software authors would.
Marv
I'm not a journalist, but I play one on slashdot
Don't give this guy the pleasure of an argument.
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Would Bruce Parens, Eric Raymond, or anyone else from OSI or SPI care to talk about this? I don't recall the exact wording of Peren or Raymonds statements, or the wording on SPI's page, but they certainly left the impression that there was something worth disputing about -- that either the term was trademarked or registered to be.
Why the big soap opera much ado about nothing? Were these guys hiding the truth from us (that there was no Open Source trademark)? Or were they ignorant of the fact that the trademark expired? If the latter, then they're incompetent in legal matters and shouldn't be handling trademark issues at all.
Not that I'm flaming Raymond, Perens, et al, but this is really embarassing.
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Stephen Molitor steve_molitor@yahoo.com
One cannot (successfully, I suppose) copyright or trademark the term "automobile". In object-oriented computer terms, it's an object, not an instance of that object. The metaphor is a rather good one, as each automobile contains the same basic parts (tires, engine, hood, chassis, brakes, etc.) but the flavor of these parts vary significantly. It is this specific flavor, the je ne sais quoi if you will, that can be trademarks.
By this logic, it makes absolutely no sense for the term "Open Source" to be trademark-able. Open Source refers to a way of thinking; a business convention; a computer software methodology. It does not refer to any specific piece of software in particular. Not Linux, not anything.
It's even worse for "Open Source" to be trademarked than "automobile" since we can at least close our eyes and see an automobile. We can see what a generic one looks like and what the term "automobile" represents. You cannot close your eyes and imagine what a piece of Open Source software looks like.
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I try to say 'freed' software when I talk about Open Source / Free (speech) Software. But too many people probably mistake 'freed' for 'free' when I say it because 'free software' is so widely (mis)used anyway.
As Perens has pointed out in so many words in the past, a trademark does not have to be registered to be a trademark.
Trademark != Registered Trademark. Therefore:
(! Registered_Trademark ) != (! Trademark)
In English, that means that not having gone through with registration does not equate to having lost the trademark. It just equates to having abandoned the registration. And abandoning the registration does not invalidate a trademark.
The above comments make no judgement about whether or not "Open Source" is trademarkable. In my opinion it is too generic, but the point I wanted to make here is the one above, that (TM) is not the same as (R).