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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!"
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.
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?
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.
Currency of the Web Database
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.
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.
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.
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...
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
I don't know.. reminds me of liberal.. and many people who use linux and other free software are accually believe it or not capitolist when it comes to everything else.
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.
Two things. First, "liberal" doesn't always mean politically liberal. Secondly, Linux is capitalist when it wants to be.
The term "liberal" isn't always dirty, and it isn't always the political left. Have you ever seen a conservative arts college? Ever borrow a book from a conservatory? "Liberal" is not always associated with "Left", "Democrat", or "Socialism".
Concerning capitalism, a lot of us Linux types are pretty capitalist when it comes to Linux. I would certainly suggest that someone like Bob Young is at least fairly capitalist.
Free software is free as in speech, not beer. You just can't charge for licensing, because you can only limit licensing in certain ways. While this is more liberal than the license fee business model, this is right in line with the business model common to most "hard goods". That is, if you sell me a car, I own it and can do whatever I please with it, no strings attached.
Linux is both community and capitalist. You won't make money in Linux by selling licenses. For a time, you can make money selling the CDs (until everybody has fast download capability). You can make money by being a Linux guru, by writing books, supporting and maintaining, and providing service. The model works because those gurus who make money on Linux will want to code for it (and often will in the course of their professional duties).
How capitalist is Linux? A lot of people are betting a lot of money that Linux can take market share away from Microsoft, the undisputed king of the license-fee business model, while that business model is in place. Red Hat thinks that they can make money without licensing fees in an environment with a very hostile, license-fee-fortified market leader, as competition.
If making money by serving the customer is liberal and anti-capitalist, then Linux businesses are liberal and anti-capitalist. I am not cynical enough to believe that this is the case. Free software produces profits with a nonstandard business model, and is willing to prove it in the capitalist arena.
--The basis of all love is respect
If y'all take the time, you'll learn that trademarks don't need to be registered, and in fact cannot be registered until they've been in use and established. Actually, only a fraction of trademarks are registered. An ordinary, unregistered trademark is indicated by the little "TM" symbol, while a registered trademark is indicated by the "R in a circle".
IANAL, thank Heavens.
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
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