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.

Last Word on Fauxpen Source (well, this week)

As usual, my friend Carlo (I have never met him but I am increasingly thinking of him as my friend) has made another excellent post, this one about this week’s bruhaha about fauxpen source. My friend Ben has also chimed in, and both of them add a lot more to the discussion than I did.

There were some people in the debate who once again felt that the issue of defining “open source” had been settled long ago, or that it wasn’t important. My first post on the issue was a satire based around the fact that the US government has started looking into using and/or requiring open source software solutions, but since those of us in the “industry” can’t define it it is doubtful the government will, and one can expect every single company that does business with them to rush to call themselves “open source software vendors” and to even further dilute the meaning.

So despite what my detractors say, it is important to define what is “open source” and what is an “open source vendor”.

Part of me wishes that the OSI had been granted a trademark on the term. It affects me personally when I present at trade shows and a potential client asks me “Yeah, you’re open source, but how much is your ‘enterprise’ version?” and I have to explain that OpenNMS is 100% open and free, and the only version we have is the enterprise version.

I love the term “open source” because it is divorced of the free-love, hippie, help-thy-neighbor aspects of free software. This doesn’t make open source software non-free, but it provides a starting point where I, as a businessman, can go to a client and they understand that there are real costs involved. I can then go on to show them that, especially over time, truly free and open source software provides a great value, even if it is not free as in “without cost”.

I am a pragmatist, and I believe that if a proprietary solution provides the best value, go for it. One of my smaller customers recently switched to Solarwinds‘ Orion, and I thought it was a good decision for them. OpenNMS was designed for the enterprise, and while it works very well in smaller environments, it is focused on being powerful and flexible at, unfortunately, the cost of being easy to use for some. However, the ease of use shortcomings are much easier to fix than issues of stability and scale, and OpenNMS is a seriously stable and scalable framework.

I expect the debate on what is open source and what is an open source vendor to continue, if not heat up, in the near future. While I sometimes feel I am the only one out there who cares, this week I’ve come a across a few others who also find it important, and I think our numbers are far greater than most people imagine.

The Importance of "Community" FAIL

Rarely do I get embarrassed, but it happened today. The previous time was in a restaurant in Brooklyn where we were ordering wine and I said “I’ll drink anything, but I’m not drinking the f**king Merlot”. It’s a line from the movie Sideways, and while I didn’t realize who he was at the time, I was sitting next to Paul Giamatti, the actor who spoke the line. True story. I turned so red.

Anyway, at the request of Stefano Heisig we are starting up a German language OpenNMS mailing list on Sourceforge called opennms-deutschland. I figured I’d ask Alex Finger to join Stefano as admins and with both of them on board I went, added the list, and then I needed to set a password.

I decided to choose “gemeinschaft” as the password, since the Internet assured me it meant “community” in German. Being culturally sensitive, I tested it forward and backward, and it always came out as “community”.

I sent it to Alex and Stefano and Alex writes back:

omg you’re sooo bad 😉

I’m thinking “what?!? What did I get wrong? Doesn’t ‘gemeinschaft’ mean community?”

He sent me to the Wikipedia article for “volksgemeinschaft” which translates to “people’s community”. Unfortunately, it was a term used heavily as propaganda by the Nazis (I’ll leave any open source/fauxpen source comparisons to the reader). I was mortified, but I am thankful Alex wasn’t offended. I hope Stefano wasn’t either.

I changed the password.

I hope that story doesn’t take away from the fact that we now have an OpenNMS mailing list dedicated to discussing the project in German. I’ll be following along the best I can, and I hope it proves useful.

Fauxpen Source

Sometimes I think my only true talent is an uncanny ability to surround myself with talented people. One of those is a friend of mine who recently moved back to North Carolina from New York City, and to help celebrate that move, last week I invited a bunch of smart, intelligent and devilishly witty people over for a “Dos de Mayo” party.

Of course it was impossible not to talk “shop” at least part of the time, and I’m sure I held forth on open source at least a little. My friend Phil was listening, and he wrote down on his Blackberry the words “fauxpen source“.

I thought it was brilliant.

Now a Google search turns up a number of references to “fauxpen source” prior to Phil, but I’m willing to put it down as one of those independent discoveries, like Leibniz and Newton with calculus, and give him credit for it, especially since Phil spends little time in the software business, much less open source software, and it is doubtful he picked it up elsewhere.

The three people who read my blog know that I am pretty particular about the use of the term “open source”. The term was coined as a more business friendly alternative to “free software”, however many have tried to distance it even further by applying it, if not to commercial software, at least to commercial software business models.

Open source is more business friendly since the English word “free” is pretty loaded. The classic example is that it can mean free as in freedom (libre) as well as free as in beer (gratis). Dan Ariely devotes a whole chapter to “free” in his most excellent book Predictably Irrational, and since deploying open source software is not without cost (in either time, money or both) it can be misleading.

But I am hoping to take a page out of Carlo Daffara’s book and present a rather emotionless explanation for why open source software is free software, and it is wrong to imply otherwise.

Given that “open source software” is defined by the OSI’s Open Source Definition (OSD), which consists of ten criteria, and given that “free software” is defined by The Free Software Definition, which consists of four freedoms, I will attempt to map one onto the other. I expect it to be easier than mapping the integers onto the real numbers, but one never knows.

Before I get started, I want to point out the Introduction to the Open Source Definition, which states:

Open source doesn’t just mean access to the source code. The distribution terms of open-source software must comply with the following criteria

Note that it doesn’t say “should comply” or “it is suggested that it meet” but specifically uses the word “must”.

Freedom 0: The freedom to run the program, for any purpose.

The OSD focuses more on distribution issues than use, but the 6th criterion states “The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.” I would say this is the same as Freedom 0.

Freedom 1: The freedom to study how the program works, and adapt it to your needs. Access to the source code is a precondition for this.

There are a couple of criteria in the OSD that map to this. The 2nd requires that the source code must be made available (“The program must include source code”), and the 3rd requires the ability to make derived works (“The license must allow modifications and derived works”).

Freedom 2: The freedom to redistribute copies so you can help your neighbor .

This is met by the very first criterion, Free Redistribution, which even includes the word “free”. Note that there is no altruistic language such as “help your neighbor” in the OSD, which also makes it more palatable for business interests.

Freedom 3: The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits. Access to the source code is a precondition for this.

The Free Software Definition separates adapting code to one’s needs from distribution of those changes. It’s an important distinction, since the right to modify code for personal use is much different to the right to distribute those changes.

The OSD combines the two with criterion 3. The first phrase “must allow modifications and derived works” covers adaptation and the second phrase “must allow them to be distributed under the same terms as the license of the original software” covers distribution.

The OSD adds a large number of other requirements, which I think makes open source even more “free” than free software, since it specifically spells out additional freedoms. These criteria also are very business friendly, such as number 4 about the integrity of the author’s source code. Integrity is a huge part of any business, and it is one reason that while we encourage the use of the OpenNMS software by anyone, we strongly protect the OpenNMS trademark. The OSD allows a license that requires derivative works to carry a different name (we use trademark law to enforce this since the GPL does not have this provision).

This analysis shows that open source software is free software, and I welcome anyone to point out the flaws in my logic.

In practice, I think it is pretty easy to identify open/free versus commercial/non-free software. Where it gets difficult is in identifying open source vs. commercial software companies.

In the US it seems to be a growing trend for companies to adopt a “fauxpen source” business model – using the term open source to market their commercial software offerings by providing some of the code under an OSI-approved license, but basing their revenues on the distribution of software under commercial licenses. I claim that a successful company exists to maximize profit, and if that profit is based on commercial software it is disingenuous to label the company “open source”.

Commercial licenses violate a number of the OSD criteria, since one can’t freely distribute, modify, or sometimes even see the code. The fact that some of the code is available is irrelevant: both Google and Microsoft distribute thousands if not millions of lines of code each year under open licenses but neither company would label itself as “open source”.

Having read and re-read the Open Source Definition, I have to marvel at both its simplicity and completeness. It would be a shame to let a small but well-funded and vocal group of people pervert it to their own ends.

UPDATE: The original purpose of this post was to demonstrate that open source software is also free software, and that it is at odds with commercial software. So here is a syllogism that supports my conclusion:

Open source is free software.
Commercially licensed software is not free.
Therefore, if your business (main revenue source) is selling commercial software, you are not open source.

Does that help any?

Order of the Blue Polo Profile: Michael Shuler

It is almost seven years ago to the day that I became an administrator of the OpenNMS project and started out on my own to build a company to provide services around the application.

At the time I had three customers: a hospital in Minnesota, a government agency in Florida, and a growing hosting provider based in San Antonio, Texas, called Rackspace.

The hospital is still a client (having renewed yearly support seven times they are an example that we must be doing something right) but the other two are not (although they both still use the product). I lost the government agency in 2003 when there was an accident that caused all spending to freeze, but we had Rackspace as a client up until last year.

The reasons that Rackspace no longer pays for support are myriad, but I’m happy as long as they still find the product valuable. I wasn’t quite sure this was the case until we got an OBP entry from Michael Shuler this week.

I knew Rackspace when it was much, much smaller, and I’ve watched it grow into the large, publicly traded company it has become. I’m still a big fan, and their concept of “Fanatical Support” has been heavily borrowed by our company. But a company with thousands of employees and public shareholders to please is a different animal than one staffed by a small group of highly intelligent mavericks, and I can’t say that I don’t miss the old days at Rackspace.

I used to go down to San Antonio where we worked on the darkened second floor of the Broadway Bank building. The days were spent solving both complex and interesting problems, but about 6pm the gang would take a break and play Return to Castle Wolfenstein. This included everyone – from the newest hire to the VP. It was a true “work hard/play hard” environment and it was a lot of fun.

Many of those people are gone now. The VP is off at Google, and others have decided to go someplace smaller. However, there is still some of that entrepreneurial feeling at a division of Rackspace called Racklabs.

Rackspace long ago figured out hosting, but they are smart enough to realize that they can’t sit on their laurels forever. Racklabs is where the new technologies are built, such as their cloud computing offerings, and it still retains the old spirit I’m familiar with.

I’ve never met Michael but we’ve corresponded a bit through e-mail. To be honest, his letter got me all verklempt. I was trying to find a bit to excerpt but it’s all so good that I can’t. Go read it.

As Rackspace grew and had to expand, the new people they hired were more comfortable with tools other than OpenNMS. In some areas it became easier to buy a commercial product than to spend the time to get OpenNMS to do what they needed, although I like to think that as OpenNMS improves that one day they’ll start using us as well. I wish them well, but it hasn’t always worked in the past. If you want to get a laugh out of a Rackspace old-timer, just mentioned the work “onyx” (like the stone). They’ll know what I mean.

Regardless of whether I get paid by them or not, I owe Rackspace a debt of gratitude. Perhaps that’s why I get so caught up on community. I have never measured success in terms of raw revenue. I prefer to measure it in terms of usefulness. Create something useful, treat people fairly, and the revenue will come.

Our mission statement has always been “Help Customers, Have Fun, Make Money”. It may not make Sand Hill Road happy, but it makes us happy, and I guess in the long run that’s all that matters.

Sour Grapes

Matt Asay has a way of pushing my buttons, and while I had pretty much decided to refrain from letting him rile me up, a post he made today saddened more than angered me. Since this was a new emotion with respect to Matt, I thought it was worth exploring.

He starts off with a question from a survey:

Does open source really needs [sic] individual contributions from developers to survive?

As written, of course the answer is “no”. It’s a loaded question. If one guy sits down and writes an application, and then publishes it under an open source license, why would he need anyone else? What would it mean for him to “survive”? Feed himself? Feed his family? Have a multi-million dollar exit?

A better question is “Can open source benefit from a vibrant and active community?” Of course the answer to that is “yes”.

He then goes on to state:

… “community” is perhaps the most overhyped word in software, one that doesn’t deliver nearly as much value as marketing people would like you to think.

Heh, I really don’t listen to marketing people at all, but I would have to agree that the fauxpen source crowd often abuses the idea of community as much as the term “open source”. The fact that marketing people can’t squeeze value out of community doesn’t mean that communities don’t have value.

Matt continues:

… we tend to think of community as a group of people that actively contribute code to a project.

I don’t know who “we” are, but that is a very, very narrow definition of community. I consider anyone who uses OpenNMS and finds some value in it to be part of our community, not just the people who contribute code.

Then we get to the “moron” section of the post. Matt quotes Linus Torvalds:

… anybody who argues against free-loading in open source is a moron.

Argues against? Heck, I embrace free-loaders. They’re great. I want as many people as possible to download and use OpenNMS – for free. Why should someone have to have a background in computer science to get value out of open source software? Of course projects like the Linux kernel, which is used by millions, have relatively few people contributing back. Heck, I’ve been using it for over a decade and I wouldn’t know how to recognize a kernel bug or how to report it, much less fix it.

Likewise, OpenNMS is a complex piece of software and it takes some intense dedication to get to the point where one can contribute code. I don’t expect anyone to sit down and suddenly dedicate hours and hours of their life working on it. Plus, I would never expect someone to contribute anything to OpenNMS unless they started out with some serious “free-loader” time.

There is more to the post where it seems Matt is arguing that only corporate, commercial software companies can create successful software products, but I’m living proof that this isn’t the case.

Seven years ago this month, I started my own company focused on OpenNMS. It was me, a laptop, some space in the attic and a book on Java. It was the community around OpenNMS, especially the members of the Order of the Green Polo, that kept OpenNMS (and me) going, and it was also the many users, such as those in the Order of the Blue Polo, who urged us to keep going.

And it has been an amazing ride. Speaking of community, this week Alejandro Galue has come up from Venezuela to work on OpenNMS: just because he wants to, not because I am paying him.

Considering the tensions between the governments of our two countries, it’s amazing how there is absolutely no tension between us. People working together on a common goal like open source seem to transcend national boundaries.

At OpenNMS, we are replacing products from HP and IBM at some of the largest companies in the world. We have another client who is going to imbed OpenNMS in their management offering. We’ve been profitable since Day One and we continue to grow year after year. This was due to a lot of hard work on our part, but we wouldn’t be here if it weren’t for our community. It’s not hype – it’s just a fact.

Wikipedia defines “Sour Grapes” as “to deny desire for something one cannot attain.” I am saddened that Matt apparently has never truly experienced being part of an open source community, or else he wouldn’t be able to dismiss it so quickly. I am pretty certain that this is because Alfresco has built a business model more aligned with commercial software than open source, and they haven’t spent the time necessary to build that community, or perhaps they don’t have the skills or the temperament. Commercial software licensing and business goals are at odds with open source software and associated business models, and that will be hard if not impossible to change.

Just because you’re doing something wrong doesn’t mean it doesn’t work. When communities do work, it is mighty sweet.

An Open Letter

Dear Microsoft, HP, IBM and Oracle:

Okay, prospects for enterprise software sales look a little bleak. The world is in a recession and being able to sell millions in licenses is becoming harder and harder. Plus, the new U.S. administration is getting caught up in phenomenon called “open source”.

President Obama has asked for Scott McNealy to provide advice on this “open source” thing, while a number of Silicon Valley software companies have written an open letter to promote it as well. Plus, Senator Rockefeller is now wanting to require open source software as part of health care reform.

I’m writing to tell you to relax. There is a silver lining. As is typical with government, while the hue and cry for open source is starting, no one has taken the time to actually define what open source means. Although a definition has existed for many years, business interests (of which you can be a part) have blurred it so much that anyone, including yourselves, can become open source companies simply by releasing a little software code and by making a few minor changes to your website.

Now, I’m sure the idea of publishing your source code is scary, but it doesn’t have to be. Think of it as “fauxpen source“. Take some product that is pretty much end of life, sanitize it a bit and release it as open source. Call everything else “enterprise extensions”. Update your website and suddenly you are an open source company. Or, you can just acquire an open source company (I’m looking at you, Oracle) and be assured of a piece of the coming windfall.

It gets even better. Remember how normally you’d charge 100% of the cost of the software up front, plus 20% in maintenance every year after that? Over five years you get 180%.

With open source, charge 40% of the cost as a “yearly subscription”. You can immediately point to a 60% cost savings over “non-open source” solutions. Over five years, however, you’ll net 200%. Plus, since the software license is limited to one year, should a customer decide not to renew they lose the right to use the software altogether (unlike the old model where the license would let them continue even without maintenance).

Open source is the wave of the future. Don’t miss out.


The Blue Polos Are Here!

I got the first shipment of blue polos today. I’m teaching class this week so most of my admin time is in the evening, but I hope to get them out soon. Please send us a picture of you in your shirt so we can add it to your OBP page.

Thanks to everyone who took the time to write up a testimonial about OpenNMS, and thanks in advance to those of you who plan to write one soon.

For people in the US, you should have your polos no later than next week, and for everyone outside of the country, it should take no longer than two weeks (except for you folks down in Oz – don’t know why it takes so long to ship stuff there).

Oh, on a side note, imitation is the sincerest form of flattery. I saw in the April newsletter of another management company that they have started a similar program, except instead of sending everyone shirts they are giving away two (2) Netbooks.

We must be doing something right if a company that has spent millions on marketing is taking cues from our little operation down in North Carolina. Plus, when you have raised US$14 million, nothing says love like a $300 Netbook.

We can’t compete with our $35 Lands End polos, but they sure feel nice against the skin. (grin)

Thanks again and keep ’em coming.