I should be asleep, but I accidentally came across this article calling Trademarks a hidden menace to Open Souce. At it’s heart I agree that Trademark law is not properly understood by the community at large and could be a major problem for some projects. Beyond that it’s is just a mess.
The start of this polite rant was that he is the author of a commercial Unbuntu book, and he made a website to support the book. He was clear in the use of the trademark ownership, but did not get permission first from Unbuntu. During conversations with Connonical it was mentioned that he might have taken liberties, but that was just in passing. Instead of asking for permission (which we would most likely have been given) he removed the logo and the trademark in all places except where nominal use could be applied (i.e. the book title) and writes a blog post calling for the abolishment of the use of Trademarks in Open Source. To me this is Trademark law working perfectly well for Open Source. If you are doing something commercial, the owner of the mark wants the ability to aprove it to make sure its not malicious. They are taking as light a hand a possible in it’s use in allowing non-commercial use freely without the need for seeking aproval (NOTE: you have to use it.. no really, read on)
There are a number of mental failings in that posting. First and foremost is that it forgets the lesson that the GPL and Open Source are reliant on the copyright system (and I would argue that even if there was not copyright that I would want it if only FOR the GPL which enforces the principals of giving back.) The argument is not to have any trademarks at all (as no other option is provided anywhere.) He calls out trademarks as being the antithesis of Open Source. You could literally replace ‘Trademark’ with ‘Copyright’ in his end section (with one minor exception.) But we need copyright law for the GPL to work; its better than the Public Domain. Just as with Copyright, it is the application which should be addressed, not the tool it’s self. Any ’solution’ should use the trademark system to support Open Source.
What tends to happen is that open source companies have to walk a tightrope, and slightly strange rules on trademark get put in place. For example, Ubuntu is cool with community remixes using the trademark, but if you intend to make money from Ubuntu and want to include the word in your business title, you’re going to need permission. It’s not quite clear here how the former won’t dilute the Ubuntu brand, while the latter possibly will. The “protecting brand identity” argument falls apart almost immediately upon examination.
Um… then you do not have much experience in the real world. Would a company which called its self ‘The Unbuntu Corporation” and sell a product ‘Real Ubuntu’ based on a very old release or containing problems on purpose dilute the name? What about the ‘Python Corporation’? What about someone selling ‘Django 2.0′ (which turns out to be a fork based on 0.95). Would these things dilute those projects? I think they do. Allowing free use for non-commercialuse may have a risk of dilution, but as this is an Open Source project and crucial to the founding and flourishing of a community, more often than diluting, it helps build the brand. Those are the uses which you want to promote as being part of an Open Source community. These are real issues and real problems which we are facing today.
Here is the crux. If you choose not to use Trademark law to your benefit, others can use it as a weapon against you. If you do not actively protect your trademarks, you loose them, and you can be attacked. I actually am a little happy that there have been some recent issues with the use of the Python logo and trademark as it proved that they are important to have and protect.
The nature of Linux and open source in general is to encourage forking and splinter projects. That’s the basic freedom provided by the GNU Public License, and similar licenses. Some of the forks or splinter projects will be poor quality. Some will fail. But that’s just the way things work with Linux.
Ah, and here’s the rub. If a project forks into 2, or say 4 different projects, do all those projects have the same name? What if all the different linux distributions were just called ‘Linux’ without the qualifiers ‘RedHat’, ‘Fedora’, ‘Unbuntu’, etc. Branding is important. If you invent a better version of FireFox based off of the source code but with different options and behavior and code, then do you get to call it FireFox? Would you even want to? Would you want it to be confused with this ‘failed’ version? Wouldn’t you want to rebrand it to call it out as being better? Maybe IceWeasel? Yea I know I am going to get flamed. I agree that debacle was stupid. But I can understand how the problem came about and I do not see malice or ill intent as the author does:
Mozilla is even worse. If I create a new Linux distro, and include my own compiled Firefox binary, it’s unlikely I would be able to call the browser “Firefox”, or use the familiar fox logo, without getting permission from Mozilla. This could put me at a competitive disadvantage compared to other versions of Linux because my users would be using what appears to be unfamiliar software. It’s worth mentioning that Mozilla’s trademark rules also indicate they’re not terribly happy about the unofficial redistribution of their binaries, either, and would prefer it if they were the exclusive source.
But its not the same software, now is it? (well maybe not in this exact instance, but that is what the Trademark protection is supposed to be used for. To prevent a fork from being called the same ‘proper name’ as it is a fork.) Once again it is the use of Trademark law, just like copyright, that matters.
Is this how open source is supposed to work? Redistricted redistribution? Tight control on who can compile software and still be able to call it by its proper name?
Um.. yes and no. There is no restriction on the distrobution of the source code. Trademark has nothing to do with source code, it is just about the use of a word or words as an identifier. There is nothing stoping people from compiling software can calling it by its given name. It’s not about the ‘who’ but about the ‘what’; or at least it should be that way. If I compile firefox exactly like the Mozilla Foundataion does, then I can call it FireFox. If I change what could is compiled and packaged, I can not call that package ‘FireFox’. I do not agree with this decision myself, but I do understand the slippery slope they are trying to protect against.
So lets recap:
- Trademark in and of it’s self is not the problem (the same way copyright is not), but how it’s applied.
- If you do not use Trademark Law, it can and will be used against you (and can be usd to make you change your existing project from say ‘Phoenix’ to say ‘Firefox’ and pay fees for violation.)
- Trademark law does not impact your ability to distrobute, change, fork or compile code.
- Trademark law does impact what you can call something. It gives you the ability to say how a name can be used.
- The improper use of Trademark Law could be a problem for Open Source, but the majority of the issues (and the one which started his rant) are actually good uses of Trademark Law for Open Source.
- Preventing corporate and malicious use while promoting the non-corporate communities, and approved corporate use is good for Open Source.
- Why not ASK if you can use the trademark on your website for your book promoting the project?
There is a part of me which would love to take about 20K and start to go all evil with respect to trademarks, taking Open Source names and preventing projects from calling themselves things. Forking projects and trademarking them for my own purpose and calling them the ‘REAL’ version. It is not about not Trademarking, but about comming up with good guidelines for its proper use in Open Source. It is a tight line one must walk, but walk it we must.
Isn’t this just a matter of clarification?
What stops me from setting a shop “recycled Dells”? or “Watter proofed Wiis” and such?
If I make a distro and offer “Firefox[Moddified by CoolDistro]” on what sorts of legal grounds am I going to be sued?
If I can be sued for that then obviously Trademarks are not being used for its original purpose, to identify the source of a product.
On point 7: For the same reason you shouldn’t need Time Warner’s permission to talk about Time Warner.
Hello,
a very interesting point you bring up… and one definitely needing more discussion.
This reminds me of a related issue with Ubuntu ™ and naming.
How Ubuntu took all of Debians packages, and wrote that the all maintainers were Ubuntu developers.
Unfortunately this is not the case, and Ubuntu took on the reputation of all those hundreds of people without their permission. Many of them were not Ubuntu developers at all, and some were upset about this.
With contribution comes ownership. On one hand Ubuntu wants people to contribute, and take ownership in a way… on the other hand it wants to keep control of that ownership.
It’s a hard balance I think. Definitely something that needs more discussion.
Like with the GPL and other FOSS licences, it would be good if we had some common licences to use for trademarks. They address patents, and copyright.
Ubuntu really should have a policy that covers all authors for books and their websites. Books rarely make very much money… especially technical books.
Many FOSS people want for everyone to be able to take any code they want, fork it and be able to do what ever they want with it – even make money off it, and even start competing projects.
Trademarks are clearly being used to stop this from happening.
Obviously some people don’t want this of course. The advertising clause in some bsd licences is made for this reason. It means the people making changes can not use the reputation of others with their set of changes.
@rgz:
It is fine to set up a shop which sells “recycled Dell’s” but I think you do need to ask permission to set up a shop named that. (I am not a lawyer and have no at hand example for that specifically.) You do not need to ask for something like “Dell’s Lemonade” (rats. now I want some… ) as that is in a different market. You do need to ask and will be rejected for and could be sued for ‘Dell Used Computers’ (which did happen).
Your FireFox argument is a much better one, and where the waters get muddied. The original purpose of Trademark Law is to allow for preventing exactly that, but that does not mean it needs to be used that way. The Mozilla foundation could have decided to have a policy where people could have ‘Unbuntu FireFox’ for instance and as long as the ‘Unbuntu’ version always had ‘Unbuntu’ as part of the mane, everything would be fine. I have seen Trademark policies with rules for that expressly laid out. Mozilla has decided to take a harder line that I do not agree with, but that is well within the intent of Trademark Law (just not in the spirit of Open Source IMHO.)
On #7, you did not read the opening statement properly. Your example of ‘Time Werner’ is covered under nominative use, which as I explained the author continued to use freely. It was all the non-nominative uses (making his website look almost exactly like the main Unbuntu website) which he stopped doing as he was told it might be in violation as he had not asked for permission for that use.
Actually on point:
Open Source projects need Trademark Law to defend themselves.
If you want that protection, you must actively protect your mark (saying all use is ok causes you to loose any and all protection).
As long as you have a system in place for detailing when one needs to ask for permission, and use it; then you have that protection.
This means that you need people to ask. It’s a hoop, but one that is required to use the Trademark (just like giving back changes if you use the code).
This is not broken. This is not a problem. This is the system working. Just ask for permission.
Interestingly the original blog author syas in his piece “My book and associated Web site are an entirely separate commercial endeavour from Canonical or the Ubuntu project at large.” Yet he does not seem to realize that is exactly why Canonical reserve the right to control the use of the name “Ubuntu”.
Suppose I were to espouse the name “Kier Thomas” and start to write articles passing myself off as him. I wonder if he’d have an issue with that?
Of course in the Python world we have had to look at these issues. There was indeed (as Doug possibly knows) a company whose name I won’t publicize further calling itself “The Python Corporation”. Had the PSF not been assiduous in its pursuit of this company it could still be soliciting “donations” and being mistaken for the Python Software Foundation.
Similarly, if Thomas makes liberal use of the Ubuntu trademark then Canonical are perfectly within their rights to decide whether or not the uses of the mark are appropriate. They presumably chose to trademark the name in order to be able to control its use. Otherwise I could register it myself and take action against them.
There are a number of people in the open source world who seem to feel that trademarks and copyright are abominable, but they too easily overlook that fact that these systems are enshrined in the legal systems of most jurisdictions, and simply wishing they didn’t won’t make the laws go away: we have to work in the system we live in until we can change it.
I am very glad that the PSF had to consider whether or not to try to protect its trademarks (registered or otherwise) at its recent members’ meeting, and decided by a large majority to continue to do so. We have now drawn a line in the sand, and can take action to stop people from bringing the name into disrepute or associating it with disreputable products or ideas.
That’s all Canonical were attempting to do with Kier Thomas, and I doubt very much that they would have refused him permission. Thomas appears not to realize that by *not* requiring him to ask permission they would have weakened their ability to protect the mark against abuses from less conscientious users.
PS: Knowing my propensity to commit typos I’d really appreciate a “preview” option in the blog comments!