Trademarks: Open Source Friendly (TM)

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Keir Thomas calls trademarks a menace to open source, but I couldn't disagree more. When used properly, like copyright, trademarks are a handy tool to protect and promote open source projects.

A little background. For the last few months, the openSUSE Project (or at least a few of its contributors) had been knee-deep in creating what we hope is a workable trademark policy to allow as much remixing and redistribution as possible by community contributors -- while ensuring that there's clarity around what is (and isn't) an "official" openSUSE release or use of the openSUSE name.

Far from being a "menace," we've found that trademarks are a good way to protect the project. Granted, providing clarity around trademarks is not easy for FOSS projects, but trademarks are not the hazard that Thomas claims.

Competitive Disadvantage

Nothing about free or open source licensing is meant to guarantee competitors an equal playing field when it comes to sales and marketing of a codebase. Take a look at the Free Software Foundation's Four Freedoms:

  • The freedom to run the program, for any purpose (freedom 0).
  • The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.
  • The freedom to redistribute copies so you can help your neighbor (freedom 2).
  • The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

When a company releases source code but says "sorry, you can't use our trademark for commercial purposes unless we give permission," it does nothing to restrict the freedoms that the FSF seeks to guarantee. You can still run, study, redistribute, and improve the program without the benefit of the use of the trademark. You just have to rename it.

According to Thomas, "Trademarking is almost totally incompatible with the essential freedom offered by open source. Trademarking is a way of severely limiting all activity on a particular product to that which you approve of."

Thomas is conjuring up an imaginary "fifth freedom," the right to benefit from branding associated with code. Not only does that concept not exist in FOSS licensing, removing the ability to restrict trademark usage would be highly destructive to the FOSS community.

Trademarks are a Good Thing(TM)

It doesn't, as he claims, severely limit "all activity," it simply limits branding modified and redistributed code as the original product. Nothing stops Oracle from reselling RHEL as "Unbreakable Linux," though it may blunt their effectiveness in siphoning off name recognition from their competitor. Nothing stops Debian or anyone else from redistributing Firefox, only from claiming that modified versions are "Firefox," unless the Mozilla folks approve. And that's how it should be.

In a world where anyone can copy, modify, and distribute code, it's vitally important for a project or vendor to be able to control the trademark for the project. Like many, Thomas is mixing "free as in beer," with "free as in speech." He wants vendors to not only provide the recipe for their brew, but also to give him a full keg and some branded cups so he can go out and sell what he received for free. Don't be surprised if that idea doesn't gain traction with projects or vendors.

And Thomas ignores the fact that, unlike patents, trademarks are a relatively level playing field. The costs of acquiring trademarks are less substantial than acquiring patents. A trademark doesn't prevent competitors from shipping features or code, just the use of specific branding. Conflating the two is a serious mistake.

Yes, trademark ownership allows big companies to deny use to upstarts, but the reverse is true as well. A fledgling company that develops an interesting project and releases it as open source can prevent larger players from co-opting its brand.

Vendors aren't the only ones who benefit from this. Without trademark protection, anyone can claim to ship Project X branded software, regardless of its quality or resemblance to the original. If a vendor or project wants to enforce standards on builds that bear their name, they should have the right to do so.

Even Debian, which has had some run-ins with what the project deemed over-restrictive trademark policies, has its own trademark policy which sets limits on what can and can't be called "Debian." Though more liberal than most, Debian as a project has seen value in limiting the ability for all comers to appropriate the Debian name.

What Needs to Change

There is a problem with trademarks and open source, but it's a matter of complexity rather than obstruction. The open source community has largely standardized on a handful of licenses governing copyright, but no standard policies for trademarks exist. This means that vendors and projects tend to wind up reinventing the wheel when it comes time to choose a trademark policy, and much confusion between projects about what's allowed and what's not.

As Thomas has, contributors and users in the FOSS community have also been confused quite often -- and unpleasantly surprised -- by trademark restrictions. We all know, or should by now, what the GPL and BSD licenses allow and don't allow. But we have no GPL of trademarks, so the situation is muddy at best when it comes to modifying a Linux distro and passing it on.

What we need is not to abolish use of trademarks by FOSS projects, but a small number of standard trademark policies that any project could adopt without having to engage a crowd of lawyers. It is labor-intensive to develop the policy and educate a community about what is and isn't automatically permissible. A policy that is embraced by the larger community instead of specific projects would be a leg up. Something endorsed by the Software Freedom Law Center and the Open Source Initiative would be a good start.

Thomas' claim that trademarks are incompatible with open source is misguided, at best. The attempt to paint trademarks as something for "back-room deals," is a misrepresentation of the way that many (if not most) projects go about setting trademarks and giving permissions. Trademark policies are publicly posted and open to negotiation with big companies and small projects. What's "back-room" about that?

Far from harmful, trademarks help protect smaller projects from abuse by big companies, and protect the investment made by larger companies that might otherwise be skittish about opening up their code under FOSS licenses.

Joe 'Zonker' Brockmeier is the openSUSE Community Manager for Novell. Prior to joining Novell, Brockmeier worked as a technology journalist primarily covering open source for many technology publications.

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