|By Heather Meeker||
|November 13, 2004 12:00 AM EST||
In programmer heaven, all software is open source software. Solving problems is as easy as downloading the code you need - none of which comes with any nasty copyright baggage - and the only part you need to write for yourself is the coolest, most interesting algorithm, which compiles, runs, and works on the first try. Naturally, there aren't software patents in heaven, either: I don't think there are any patent examiners who could get through the pearly gates, do you?
When you get there though, I would think twice about using that little red hat logo.
Programmers, now politicized by the free software movement, spend a lot of time arguing about copyrights and patents - whether they're morally right or wrong and how widely they should be enforced. But they don't think much about trademarks. Trademarks, in a way, are the most bulletproof form of intellectual property: more effective than copyright, cheaper to enforce than patents.
What's in a Trademark?Trademarks are really all about consumer protection. This is why trademark laws are so strong and the penalties for violating them can be so high. When you infringe a trademark, you're not just hurting the owner of the trademark, you're hurting all consumers, everywhere. There are two basic kinds of trademark infringement: passing off and reverse passing off. If you write your own operating system from scratch and call it Red Hat Linux, don't answer the doorbell. That's called "passing off" your goods as those of another - in this case a company with a valuable trademark and a strong reputation, whose lawyers will be paying you a visit.
If you take Red Hat Linux and repackage it unadulterated as God Bless You-nix, that's reverse passing off, or claiming another's product as your own. In each case, consumers are being fooled as to the source of what they are buying.
Trademarks in the Open Source WorldAll of this works pretty much as expected in a commercial setting. However, when it's combined with an open source software model, things get a bit, well, interesting. For instance, by definition, any open source software project lets you modify and distribute its software royalty-free. But most open source projects will be more conservative about letting you use their trademarks. Take a look at the policies for the use of the red hat, the GNOME footprint, the Debian swirl, or the Mozilla red lizard (www.redhat.com/about/trademark_guidelines.html, http://mail.gnome.org/archives/foundation-list/ 2003-November/msg00098.html, www.debian.org/logos/, and www.mozilla.org/foundation/licensing.html, respectively). All of them impose some kind of criteria for products bearing the mark. These criteria range from quality, to interoperability, to the amount of open source code the product contains.
The most popular logo in the open source world, of course, is the penguin named "Tux." This trademark has not been managed with systematic trademark use policies. Consequently, the reputation and trademark strength associated with the mark are weak. The use of the penguin has provided fodder for plenty of amusement (see the discussion of the meaning and history of Tux on http://en.wikipedia.org/wiki/Tux), but it is not consistently applied. The most common representation is the bowling-pin shaped tuxedo-marked cartoon bird designed by Larry Ewing, but even the average computer programmer, much more so than the average consumer, would be hard pressed to tell you exactly what product it represents. The only conditions for use of this logo are acknowledgment of the author of the logo - no conditions regarding the product on which it is placed. This type of condition is associated more with copyright than trademark.
There is, of course, a copyright in the appearance of any logo. But a logo that represents neither a source for products nor a level of quality for products is, in the end, not really a trademark. Tux is usually described by the software community as a mascot rather than a trademark, and that's probably closer to the truth.
"Linux," on the other hand, is a trademark registered by Linus Torvalds. The use of the Linux mark is policed by the Linux Mark Institute, www.linuxmark.org. The institute was created after a dispute over ownership of the trademark arose. This dispute arose because the mark was not being policed and was not registered - a state of affairs that allowed others to claim rights in it. Linux has been used more consistently than the Tux logo. However, some would argue that it's generic.
Confusion over what constitutes a "Linux" product is evidenced by the ubiquitous reexplanation of the difference between Linux and GNU/Linux.GNU describes a set of tools promulgated by the GNU Project. These tools are usually part of a product distribution that contains the Linux kernel. See Wikipedia's definition of "Linux": "Strictly, the name Linux refers only to the Linux kernel, but it is commonly used to describe entire Unix-like operating systems (also known as GNU/Linux) that are based on the Linux kernel and libraries and tools from the GNU project" (http://en.wikipedia.org/wiki/Linux).
We see that the open source business community handles the issue of passing off much as any other industry. They do the same for reverse passing off. Even the most noncommittal of open source agreements, the BSD license, contains an express statement limiting your right to use trademarks. For instance, the form of BSD license available on the Open Source Initiative Web site says: "Neither the name of the <ORGANIZATION> nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission." In other words, no trademark license. This might lead you to think that any organization granting such a license is not worrying about reverse passing off. Remember, though, that even the BSD license requires you to display appropriate copyright notices, and earlier versions contained the "advertising requirement" that became so unpopular and disused in the open source community.
There is a good reason for the similarities between trademarks in the open source world and in the rest of the business world. It's not because open source projects are trying to give with one hand and take away with the other. Trademark law is different from copyright or patent law. It is, loosely put, a "use it or lose it" regime. To be more accurate, it's a "use it correctly, or lose it" regime. This rule, in legalese, is called dilution or blurring. If you own a trademark, and you let others use it on their products without supervision, you will eventually lose your rights in it. The legal way of putting this is that a trademark owner must exercise quality control, or his trademark rights may be diluted to the point that his trademark rights are no longer enforceable. The hobby horse example here is "aspirin," once a trademark, now a generic designation with no trademark value.
While an open source license may give you complete freedom to modify and distribute code, it can never give you freedom to distribute modified code under the licensor's trademark, or the rights in the trademark will eventually evaporate - an event that will benefit no one. Remember that this is all about consumer protection. If consumers trusted Red Hat to distribute a robust, reliable product, and Red Hat let everyone use its name, consumers would no longer know if they could trust a product called "Red Hat." That's dilution in a nutshell.
When the Sky FellI know what you're thinking: I worry too much. If you think open source and trademarks can't collide, think again. Once upon a time, AT&T licensed Unix to lots of universities in source code form, and those universities openly shared improvements and adaptations of the code. Translation: Unix was very much like an open source product, though that phrase would not be coined for another 20 years. One of the recipients of Unix was the University of California at Berkeley, which modified Unix extensively, most notably developing networking code that made Unix work with TCP/IP-based networking products. Then AT&T stopped licensing the Unix source code, turned Unix into a proprietary product, and began charging high prices for licenses. Berkeley, responding to popular demand, began distributing its own version of Unix, called "Networking Release 1," under the BSD license. (To be precise, the facts were more complicated. Berkeley tried to engineer all of AT&T's copyrightable code out of the product. Whether they succeeded is a moot point, given the disposition of the lawsuit.)
A few versions later, Berkeley Software Design, Incorporated, was formed to distribute a commercially supported version of the Berkeley code. That product, sensibly, was known as BSD Unix. AT&T released its own, closed-source, version of Unix, System V. But BSDI was selling its open source product for 90% less. So AT&T sued BSDI, making both copyright and trademark claims. The court found that AT&T had lost its copyright interest in the Unix code used by Berkeley. The case was settled. Essentially, BSDI won. But BSDI promptly agreed to stop using the trademark Unix. (Once again, the facts were debated. Whether BSDI actually used the Unix trademark in an infringing way was disputed - and mooted by BSDI's agreement to cease using the mark.)
The moral of the story is that copyrights are fragile. They can be lost and engineered around. (It is not so easy to lose them today. AT&T lost its copyright under the pre-1978 rule, under which publication without copyright notice caused a work to fall into the public domain. This rule has changed; today, a positive statement ceding a work to the public domain is necessary to lose a copyright.) Patents, too, can be engineered around, and half of them are invalidated when their owner tries to enforce them. Patents, and to a lesser degree copyrights, can expire, but trademarks can last forever. Trademarks claims are often so fearsome that a defendant in a trademark infringement suit will give up without a fight. BSDI fought AT&T's copyright claims and won. It gave up the trademark battle with barely a squeak.
The sky fell once. Having to change brands in midstream is the business equivalent of the sky falling. A company's trademark is usually considered its most important and valuable piece of intellectual property. The conventional wisdom is that the single most valuable piece of intellectual property in the world is the trademark Coca-Cola - not the formula for the product, the trademark. Changing a trademark for a successful product can be more expensive and more damaging to the value of a business than reengineering the product. Part of this is a cautionary tale. Never assume that you can use a trademark with impunity, even when you have a license to use the copyrights that form the basis of the trademarked product. The open source projects that control the red hat, the footprint, and the lizard will not let you do that. They can't, because they are the custodians of those marks for the consumer's benefit.
The Next Battleground?This is more than a cautionary tale; it's a peek into the realities behind how intellectual property works for open source in the business world. Ask anyone how to make money in the open source space and they will tell you roughly the same thing: services, support, and widget frosting. Are those things protected by copyright or patent? Maybe, maybe not. But they are definitely protected by trademark. Companies can, arguably, exercise even more control over their licensees via trademark than they can via copyright. Trademark owners can - and must - supervise all use of their marks. Supervision, however, is anathema to free software, which is premised on the ability to modify software freely, without supervision.
All this would not be so troubling, but the idea of officially sanctioned versions is, in a way, even more important in the open source world than it is elsewhere. In the open source world, reputation is everything.
Skeptics often ask what keeps open source code from forking infinitely. After all, everyone has the right to create his or her own version of open source code. To those familiar with open source, the answer is simple: people trust the official releases of open source code because of the reputation of the gatekeepers of the source tree. Remember, trademark is the same as reputation. Some forking has taken place in the open source world, and trademark battles have not ensued. But what if two factions wanted to release competing versions of Linux - or any other open source project? Which faction would get the right to designate their version with the trademark?
The day may come when those who determine the official versions of large open source projects like Linux will control one of the most valuable pieces of intellectual property in the world - its trademark. Is this the next intellectual property battle in the open source world? Many people are poised to fight a patent fight - but is anyone prepared for the havoc that a trademark fight could cause?
It's a distressing possibility. So distressing, that it makes me think perhaps there are no trademarks in programmer heaven. If there are, I suppose, the question is which one: cross, star, many-armed god? I think, with all due respect, these are all too valuable, too controversial, and too weighed down with historical baggage. I would bet on the only free one: the penguin.
The author's professional bio can be viewed here.
|Aldo Castaneda 11/17/04 07:50:11 PM EST|
I appreciate your response to my comment.
I'm actually working on the "you need a lawyer to do it" part as I'm in my second year of law school.
As to brand "dilution." In your opinion does that concept apply equally to brands whose value arguably derives from trusted functionality and/or reliability (the code in this case) as it does to commercial consumer brands such as say Coke whose value dervies from consumer associations to more abstract lifestyle values which given their more subjective qualities are perhaps substantially more prone to dilution?
One more question if you'll indulge me (That makes two questions I suppose)?
Do you think the nexus of Open Source/Trademark/Financing is fertile ground for a law school thesis? If so is there a particular topic that you view as particularly timely?
|Heather Meeker 11/17/04 06:30:49 PM EST|
Mr. Castaneda, thanks for your comment. It seems to me that the open source community has been, in general, quite tolerant of the development of brand value on open source projects. Most people who view open source as a viable business model would stress that branding is very important, and the way to develop a valuable business is by developing a valuable brand. If you are one of a "loosely assembled team of developers" working on an open source project, and you hope to create commercial value in the project, it's very worthwhile to put some time into mapping out a branding strategy -- whatever it may be. Licensing trademarks for profit is tricky, though. (It is one of those "don't do this at home" things -- you need lawyer help to do it.) You can leverage a brand, but only so much -- before it becomes diluted and loses its value.
I hope that helps, and thanks for reading the article.
|Aldo Castaneda 11/17/04 12:42:59 PM EST|
So given your conclusion with regard to the importance of trademark rights as to Open Source projects - Do you think that the early co-development of code along with trademarks is the key to unlocking the distributed economic potential in open source development?
In other words, can a loosely assembled team of developers open code gain financial leverage by selling rights to trademark usage and at the same time let the code be "free"?
Is trademark the goose that laid the Open Source Golden egg?
Seems it would not be too hard, assuming the release of an official version of code to figure out share ownership as a function of code developed. So that when trademark rights are licensed financial returns (this could be from speculative financing as well) could be distributed accordingly.
Is this already being done? Assuming this might work are problems around defining "share ownership" as a function of code contributed too subjective? Is valuation of the trademarket too nebulous? Would the "community" be adverse to this notion, as it is a for profit concept, albeit one that does't impede the end-user access to functionality?
|Thank you 11/13/04 04:24:51 AM EST|
Nice article. Hopefully the Groklaw community will enjoy this one too. Thank you Heaather!
|Good Job! 11/13/04 04:16:09 AM EST|
Great article to wake up to on a Saturday morning, thanks!
|Good Job! 11/13/04 04:15:35 AM EST|
Great article to wake up to on a Saturday morning, thanks!
Increasing IoT connectivity is forcing enterprises to find elegant solutions to organize and visualize all incoming data from these connected devices with re-configurable dashboard widgets to effectively allow rapid decision-making for everything from immediate actions in tactical situations to strategic analysis and reporting. In his session at 18th Cloud Expo, Shikhir Singh, Senior Developer Relations Manager at Sencha, will discuss how to create HTML5 dashboards that interact with IoT devic...
May. 3, 2016 04:00 PM EDT Reads: 1,260
The increasing popularity of the Internet of Things necessitates that our physical and cognitive relationship with wearable technology will change rapidly in the near future. This advent means logging has become a thing of the past. Before, it was on us to track our own data, but now that data is automatically available. What does this mean for mHealth and the "connected" body? In her session at @ThingsExpo, Lisa Calkins, CEO and co-founder of Amadeus Consulting, will discuss the impact of wea...
May. 3, 2016 04:00 PM EDT Reads: 967
trust and privacy in their ecosystem. Assurance and protection of device identity, secure data encryption and authentication are the key security challenges organizations are trying to address when integrating IoT devices. This holds true for IoT applications in a wide range of industries, for example, healthcare, consumer devices, and manufacturing. In his session at @ThingsExpo, Lancen LaChance, vice president of product management, IoT solutions at GlobalSign, will teach IoT developers how t...
May. 3, 2016 03:58 PM EDT
There is an ever-growing explosion of new devices that are connected to the Internet using “cloud” solutions. This rapid growth is creating a massive new demand for efficient access to data. And it’s not just about connecting to that data anymore. This new demand is bringing new issues and challenges and it is important for companies to scale for the coming growth. And with that scaling comes the need for greater security, gathering and data analysis, storage, connectivity and, of course, the...
May. 3, 2016 03:45 PM EDT Reads: 1,048
We’ve worked with dozens of early adopters across numerous industries and will debunk common misperceptions, which starts with understanding that many of the connected products we’ll use over the next 5 years are already products, they’re just not yet connected. With an IoT product, time-in-market provides much more essential feedback than ever before. Innovation comes from what you do with the data that the connected product provides in order to enhance the customer experience and optimize busi...
May. 3, 2016 03:30 PM EDT Reads: 1,157
A critical component of any IoT project is the back-end systems that capture data from remote IoT devices and structure it in a way to answer useful questions. Traditional data warehouse and analytical systems are mature technologies that can be used to handle large data sets, but they are not well suited to many IoT-scale products and the need for real-time insights. At Fuze, we have developed a backend platform as part of our mobility-oriented cloud service that uses Big Data-based approache...
May. 3, 2016 03:23 PM EDT Reads: 107
Artificial Intelligence has the potential to massively disrupt IoT. In his session at 18th Cloud Expo, AJ Abdallat, CEO of Beyond AI, will discuss what the five main drivers are in Artificial Intelligence that could shape the future of the Internet of Things. AJ Abdallat is CEO of Beyond AI. He has over 20 years of management experience in the fields of artificial intelligence, sensors, instruments, devices and software for telecommunications, life sciences, environmental monitoring, process...
May. 3, 2016 03:15 PM EDT Reads: 1,137
In his session at @ThingsExpo, Chris Klein, CEO and Co-founder of Rachio, will discuss next generation communities that are using IoT to create more sustainable, intelligent communities. One example is Sterling Ranch, a 10,000 home development that – with the help of Siemens – will integrate IoT technology into the community to provide residents with energy and water savings as well as intelligent security. Everything from stop lights to sprinkler systems to building infrastructures will run ef...
May. 3, 2016 03:15 PM EDT Reads: 1,135
The IoTs will challenge the status quo of how IT and development organizations operate. Or will it? Certainly the fog layer of IoT requires special insights about data ontology, security and transactional integrity. But the developmental challenges are the same: People, Process and Platform. In his session at @ThingsExpo, Craig Sproule, CEO of Metavine, will demonstrate how to move beyond today's coding paradigm and share the must-have mindsets for removing complexity from the development proc...
May. 3, 2016 03:15 PM EDT Reads: 641
The IETF draft standard for M2M certificates is a security solution specifically designed for the demanding needs of IoT/M2M applications. In his session at @ThingsExpo, Brian Romansky, VP of Strategic Technology at TrustPoint Innovation, will explain how M2M certificates can efficiently enable confidentiality, integrity, and authenticity on highly constrained devices.
May. 3, 2016 03:15 PM EDT Reads: 1,039
SYS-CON Events announced today that Ericsson has been named “Gold Sponsor” of SYS-CON's @ThingsExpo, which will take place on June 7-9, 2016, at the Javits Center in New York, New York. Ericsson is a world leader in the rapidly changing environment of communications technology – providing equipment, software and services to enable transformation through mobility. Some 40 percent of global mobile traffic runs through networks we have supplied. More than 1 billion subscribers around the world re...
May. 3, 2016 02:45 PM EDT Reads: 1,235
Digital payments using wearable devices such as smart watches, fitness trackers, and payment wristbands are an increasing area of focus for industry participants, and consumer acceptance from early trials and deployments has encouraged some of the biggest names in technology and banking to continue their push to drive growth in this nascent market. Wearable payment systems may utilize near field communication (NFC), radio frequency identification (RFID), or quick response (QR) codes and barcodes...
May. 3, 2016 02:30 PM EDT Reads: 927
Manufacturers are embracing the Industrial Internet the same way consumers are leveraging Fitbits – to improve overall health and wellness. Both can provide consistent measurement, visibility, and suggest performance improvements customized to help reach goals. Fitbit users can view real-time data and make adjustments to increase their activity. In his session at @ThingsExpo, Mark Bernardo Professional Services Leader, Americas, at GE Digital, will discuss how leveraging the Industrial Interne...
May. 3, 2016 02:00 PM EDT Reads: 1,176
Whether your IoT service is connecting cars, homes, appliances, wearable, cameras or other devices, one question hangs in the balance – how do you actually make money from this service? The ability to turn your IoT service into profit requires the ability to create a monetization strategy that is flexible, scalable and working for you in real-time. It must be a transparent, smoothly implemented strategy that all stakeholders – from customers to the board – will be able to understand and comprehe...
May. 3, 2016 12:30 PM EDT Reads: 1,158
You deployed your app with the Bluemix PaaS and it's gaining some serious traction, so it's time to make some tweaks. Did you design your application in a way that it can scale in the cloud? Were you even thinking about the cloud when you built the app? If not, chances are your app is going to break. Check out this webcast to learn various techniques for designing applications that will scale successfully in Bluemix, for the confidence you need to take your apps to the next level and beyond.
May. 3, 2016 12:15 PM EDT Reads: 1,582
SYS-CON Events announced today that Peak 10, Inc., a national IT infrastructure and cloud services provider, will exhibit at SYS-CON's 18th International Cloud Expo®, which will take place on June 7-9, 2016, at the Javits Center in New York City, NY. Peak 10 provides reliable, tailored data center and network services, cloud and managed services. Its solutions are designed to scale and adapt to customers’ changing business needs, enabling them to lower costs, improve performance and focus inter...
May. 3, 2016 12:00 PM EDT Reads: 1,350
So, you bought into the current machine learning craze and went on to collect millions/billions of records from this promising new data source. Now, what do you do with them? Too often, the abundance of data quickly turns into an abundance of problems. How do you extract that "magic essence" from your data without falling into the common pitfalls? In her session at @ThingsExpo, Natalia Ponomareva, Software Engineer at Google, will provide tips on how to be successful in large scale machine lear...
May. 3, 2016 09:45 AM EDT Reads: 1,419
You think you know what’s in your data. But do you? Most organizations are now aware of the business intelligence represented by their data. Data science stands to take this to a level you never thought of – literally. The techniques of data science, when used with the capabilities of Big Data technologies, can make connections you had not yet imagined, helping you discover new insights and ask new questions of your data. In his session at @ThingsExpo, Sarbjit Sarkaria, data science team lead ...
May. 3, 2016 07:00 AM EDT Reads: 1,075
SYS-CON Events announced today that Fusion, a leading provider of cloud services, will exhibit at SYS-CON's 18th International Cloud Expo®, which will take place on June 7-9, 2016, at the Javits Center in New York City, NY. Fusion, a leading provider of integrated cloud solutions to small, medium and large businesses, is the industry's single source for the cloud. Fusion's advanced, proprietary cloud service platform enables the integration of leading edge solutions in the cloud, including cloud...
May. 2, 2016 10:00 AM EDT Reads: 2,681
SYS-CON Events announced today that DatacenterDynamics has been named “Media Sponsor” of SYS-CON's 18th International Cloud Expo, which will take place on June 7–9, 2016, at the Javits Center in New York City, NY. DatacenterDynamics is a brand of DCD Group, a global B2B media and publishing company that develops products to help senior professionals in the world's most ICT dependent organizations make risk-based infrastructure and capacity decisions.
May. 2, 2016 06:30 AM EDT Reads: 2,570