Trademarks and Open Source

Slashdot pointed me to a post on open source software and trademarks on a PC World blog that concludes “Trademarking is almost totally incompatible with the essential freedom offered by open source.”

It really pissed me off.

The author was upset about some comments Canonical made about his use of the word “Ubuntu” on his website to promote a book he had written on the subject. When he reduced his use of the name and images in order to comply with fair use, apparently his website was now “graphically barren” and thus trademarks must be wrong.

Look, open source is all about sharing, modifying and making derivative works. But the problem with mainstream adoption of open source is who to hold accountable for problems. Trust me, enterprises would much rather deal with a company for support issues than “HaX0rBoi” on an IRC channel. In order for a company to protect its investment in building a brand and a reputation, trademarks are vitally important.

Implicit in the idea of commercializing an open source software application is an exact definition of the product. It has to at least have a name, a version, and someone responsible for it. Open source allows for modifications and forks, but if it weren’t for trademarks how could you tell the difference between Adam’s Firefox, Bill’s Firefox and Charlie’s Firefox? It is perfectly fine to take something like Firefox, change it, and release it as Iceweasel. But don’t call it Firefox. It is perfectly fine to take Red Hat Enterprise Linux sources, remove trademarked images, make your own binaries, and call it CentOS, but don’t call it Red Hat. And as we saw last week, one can take Nagios, change it, and release it as Icinga.

Can you imagine how chaotic it would be if there was no way to enforce a name? Heck, the first time I hired a lawyer with respect to OpenNMS was to send a cease and desist order to a company in California that claimed to be producing “OpenNMS for Mac”. They had taken issue with our need to use the Java 1.4 SDK (OpenNMS would simply die under 1.3) since 1.4 it wasn’t supported on OS X at the time. So they removed the code changes that required 1.4 and released their own version of OpenNMS.

I tried to reason with the man, even pointing him to the Mozilla policy on the use of their trademark, but he insisted that since OpenNMS was “open source” he could call his code OpenNMS. After several failed e-mails I had to send that letter to get him to stop.

He didn’t seem to realize that if someone like MacWorld downloaded his version (we support OSX through the fink project) and it was crap, it would negatively affect my business. More than that, he didn’t seem to care. I even pointed out that he was free to do exactly what he was doing if he would just stop using our trademarked name and logos, but it wasn’t until the letter got sent that anything happened.

It was upsetting. The main way we make money at OpenNMS is through our brand. We put a lot of work into insuring that OpenNMS doesn’t suck, and we market that our services around OpenNMS are the best you can get since we are the experts on it. As we expand we want to make sure that terms like “OpenNMS Certified” and “Powered by OpenNMS” mean something.

Mr. Thomas doesn’t seem to understand this. He takes exception, in part, because he knows that the tighter he can associate himself with Ubuntu the more books he will sell. But where does he cross the line between presenting himself as a freelance Ubuntu expert to presenting himself as being endorsed by Canonical?

His conclusions show a serious naiveté about open source business.

Trademarking is a way of severely limiting all activity on a particular product to that which you approve of.

What? Is he saying that the authors of an application don’t have the right to determine what they can do to it? Just because a product is open source doesn’t mean there are no concepts of ownership. You are free to benefit from the work of the authors through use of the source but you are not free to totally co-opt their brand.

That’s what it was created to do, and that’s what it unapologetically does on a daily basis around the world. If an open source company embraces trademarks then it embraces this philosophy. On the one hand it advocates freedom, and the other it takes it away.

I’m confused. Where do trademarks infringe in any way on the Open Source Definition? Which “freedoms” are being taken away? How about this: let’s remove the requirement that medical doctors, just the ones Mr. Thomas uses, be licensed. Having to be licensed to practice medicine infringes on my freedom to call myself a “doctor”, doesn’t it? The medical establishment does this on a “daily basis around the world”.

Trademarking encourages organizations to foster back-room deals, and negotiations to get permissions. It’s almost exclusively a domain for lawyers

I get very sad when I see stuff like this. For seven years now I have worked incredibly hard to help create OpenNMS and we give most of that work away for free. We’ve built a brand around the name and that value is what drives our revenues which, in turn, allows us to create more OpenNMS. Is it wrong for us to require that anyone calling themselves a “certified OpenNMS partner”, such as Nethinks in Germany, actually have staff on hand that we know will represent OpenNMS in the best light?

But this isn’t good enough for (and I am thankful for this) a small minority of users who think that any restrictions whatsoever cramps their style. They seem to think everything should be free (as in gratis) and when it is not it is somehow removing some God-given right.

I wonder how Mr. Thomas would feel if I downloaded the PDF version of his book and started selling it as my own? What if I put my own print version up on Amazon for a couple of dollars less than his?

Trademarks are the only way that open source projects can protect their work in the marketplace. It’s why they are called “trade” marks. If it wasn’t for the work of the Ubuntu project, Mr. Thomas would be spouting his inane comments interspersed with “do you want to supersize that?”, yet when they asked (and nicely it appears) that he respect their trademark his reply is to accuse them of “back room deals”.

He is a prime example of why I use the term “open source” instead of free software. People like him are more dangerous to open source software than any open core or commercial software company. Those companies want to compete with open source efforts – he wants to steal them outright.