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"Open Source" Not Trademarked After All? 160

Posted by CmdrTaco from the this-is-gonna-get-messy dept.
Mike_Miller writes "According to a ZDNet Article, the term "Open Source" is not, and never has been, trademarked. Quote: "The term has never been a registered trademark, and it's no longer even pending registration." " Oh dear. Update: 06/15 02:30 by CT : ESR wrote in to say "Hey, chill, everybody. OSI was planning to issue a statement about this matter after our Wednesday board meeting (despite some of the rumors going around, we do operate by consensus; this slows us down a bit sometimes). So if you'll wait a bit, all will be made clear. In the mean time: don't panic!"
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"Open Source" Not Trademarked After All? More

"Open Source" Not Trademarked After All?

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  • Open Source (!TM) (Score:1)

    by Anonymous Coward
    Excuse me?

    Doesn't someone unfailingly bring this point up every time Perens and Raymond have a love tiff? Doesn't everyone here invariably then agree that this is the case? Haven't we repeatedly said that the term is much too generic to be trademarkable? It's like trademarking the term shoe. Can I get through this post with a bold word in every sentence? Inquiring minds want to know.

  • Re:Copyrights a la Object-Orientation (Score:1)

    by Anonymous Coward
    Insightful? You've got to be kidding moderators. A trade mark is, as one might expect, a mark used within a trade. Anyone can have what the law will call a trademark. The only issue is when one wishes to *register* that trademark.

    And don't go bringing OOP garbage into this. It's a little less than relevant. Hell, look at 'AT&T', or '3M'. I'm assuming knowledge of those acronyms. Hardlly a hint of 'je ne sais quoi' in there. No, the term Open Source doesn't refer to specifics in software. It refers to a way of doing business. It may very well be the mark of someone's trade. And it is therefore trademarkable.

    And please don't give me this 'close your eyes... if you can't imagine its physical manifestation then it can't be trademarked.' business. A trademark is a trade mark. Simple as that.

    Regards,
    --

    PS> Everything you ever write is copyrighted as soon as you hit the paper. All you have to do is say so.
  • what the hell are you talking about? i can assure you that, as a member of ASCAP (American Society of Composers and Publishers.. check any CD you own), you certainly need more than to say "XYZ is my copyright" for it to be an actual copyright. simliarly, you need to do more than say "XYZ is my trademark," in order that you own XYZ as a trademark.

    All you have to do is claim copyright to have the copyright. I know a few programmers that actually print their source, mail it to themselves, and save the sealed envelope with the postmark on it to insure the date of the copyright as well. (paranoid group, but rightfully so)

    Erik

  • Check this hurl for trademark info (Score:2)

    by Anonymous Coward
    The term "Open Source" is not, and never has been, *nor ever will be* trademarked. Here is an excellent url that explains why:

    http://www.wld.com/conbus/weal/wtradmk1.htm

  • He says now it's free, but... (Score:3)

    by Anonymous Coward on Monday June 14, 1999 @12:00PM (#1851203)
    The author says (in a snotty tone of voice) that he is glad the term Open Source is free as what it represents. Actually this doesn't make any sense, because now anyone else can snatch the name up and take it away from public use. GPL'd software is not public domain. It is copyrighted and that is why GPL'd software can not be taken over by one company. That is the same protection you need for the term Open Source.
  • This is old news. It's too generic of a term anyway.
  • SPI and OSI had come to an agreement as to how to handle Open Source. It didn't get officially announced prior to this mess which ends up boiling down to a paperwork issue. How do I know all of this? Well, I asked! =D
  • He's a suit who makes money off of selling commercial distributions as better than the free ones. He's written two articles involving Debian and both of them contained blatant lies as well as the typical FUD we all expect from ZDnet. This is obviously just more typical Leibovitch faire... The snotty attitude and disinformation about all of the non-commercial Linux supporting organizations out there is likely to continue. You can expect more trash to be spread about Debian, SPI, OSI, and probably the FSF and others as well. Evan Leibovitch is a parasite who freely admits he's not a technical person (and therefore IMO not qualified to write about technical matters), and whose sole interest in Linux is his own profits.

    Lots of people say we don't need commercial support, and I totally disagree with them. We certainly need all the support we can get no matter where it comes from. On the other hand, we don't need Evan Leibovitch or his kind or their snotty attitude and general contempt for all things which do not line their pockets.

  • Posted by FascDot Killed My Previous Use:

    How is this different than yesterday, when "open source" wasn't trademarked, we all knew it wasn't trademarked, but that fact hadn't been published?

    Are we worried about Microsoft stealing the term? Gosh, too bad. We'd have to go back to what we really mean: Free Software.

    You see, the issue isn't over whether I can read the source code (or rather, that's not the full issue). The biggest issue is whether I can do whatever I want with it. "Open" doesn't describe this condition very well, which is how we got saddled with so many "read-only" licenses.

    I'd go on, but I'm sure some brain-dead moderator already thinks this post is offtopic, a troll or flamebait...
    --
    "Please remember that how you say something is often more important than what you say." - Rob Malda
  • Posted by FascDot Killed My Previous Use:

    It's perfectly legal for Company X to provide me with BSD binaries with no source code. The license does nothing to prevent this. Therefore my copy of BSD may not be free.

    Linux providers, OTOH, are required to provide source code under the GPL, which guarantees the freedom of the software I get.


    --
    "Please remember that how you say something is often more important than what you say." - Rob Malda
  • Posted by FascDot Killed My Previous Use:

    SPAM!

    Lemon curry?
    --
    "Please remember that how you say something is often more important than what you say." - Rob Malda
  • Posted by FascDot Killed My Previous Use:

    CareBearWare?
    NoSnareWare?

    StarWare?
    JediWare?
    ForceWare?


    --
    "Please remember that how you say something is often more important than what you say." - Rob Malda
  • Posted by Jdahlber:

    Descriptive combinations of words such as "Open Source" are too widely used at this point for someone such as MacroHard to snap them up. Once a phrase is used by a large group in an industry it is not available for register by any individual entity. Basic intellectual property law covers this so no one needs to worry.
  • Posted by FascDot Killed My Previous Use:

    "Their choice. That's freedom."

    Yes, but only for them.

    Think about the Old South. Wealthy slave-owners owners were perfectly free to sell, beat, kill, etc slaves. Was there freedom in the Old South? No.

    Same here. BSD affords freedom to a minority, but at the potential expense of the majority. The GPL puts minor restrictions on the minority (must republish mods if binaries are distributed) so that the majority can retain their freedom (access to source code and ability to modify/redistribute).

    As for getting the source elsewhere: Not for long, maybe. After several years of secret improvement by Company X, I'd hate to start over with the base BSD code and reverse-engineer everything thing Company X did.
    --
    "Please remember that how you say something is often more important than what you say." - Rob Malda
  • Posted by FascDot Killed My Previous Use:

    So not releasing source equates with beating and killing slaves? This dosn't even need an answer.

    Where did I say that? Go find a dictionary and look up "analogy". For instance: A is to B as C is to D. That does not make A the same as C, it means the relationship is the same.

    Why do you feel that you have the right to use other peoples work?

    Again, your words in my mouth. I'm not forcing nor do I want anyone else to force Company X to use License Y.

    What I am saying, is that if Company X takes already existing source code under Open License Y and re-releases it under Closed License Z, that I, the consumer, and you, the programmer, have both been screwed. This is because Company X, by putting additional restrictions on existing code has reduced the "amount of freedom in the world".

    The GPL prevents this, BSD does not.
    --
    "Please remember that how you say something is often more important than what you say." - Rob Malda
  • Posted by FascDot Killed My Previous Use:

    Step 1: Group of Programmers G creates Program P with Feature Set F and releases it under License L.

    Step 2: Company C takes P, adds (f1, f2, f3, ... fn) to F and re-releases under License L1.

    Now, if L = GPL, then L1 = GPL and the source code to (f1, f2, f3, ... fn) is available to everyone.

    If L = BSD, L1 can be anything at all, including a license that hides the source code to (f1, f2, f3, ... fn).

    At this point we would have a code fork. And not just any code fork, because source code for (f1, f2, f3, ... fn) is inaccessible. Sure, the original source code is available, but what if I need f1? I'm SOL, unless I expend the resource to reengineer. You may remember this part from my first post.

    And as time goes on this only gets worse unless someone is working their hump off to play catchup to Company C--and it is all duplicated effort. Incredibly stupid.

    Why not just use the GPL to ensure fair play by all? Sure, having a referee on the baseball diamond takes a little freedom away--but only the freedom to cheat.
    --
    "Please remember that how you say something is often more important than what you say." - Rob Malda
  • GPL'd software is not public domain. It is copyrighted and that is why GPL'd software can not be taken over by one company.

    Funny you should bring that up, when there are other licenses -- Open Source (notm) licenses -- that let people take the code, and do with it as they will.

    The X/MIT license, for instance, may as well be public domain for all the restrictions it puts on you; the BSD license is only barely moreso. Yet, even though there are proprietary versions of most any BSD software you care to name (in fact, OS/2 [ibm.com] has a lot of the networking stuff as far as I can tell), it's still largely free software.

    To put it another way, the free software community is strong enough that it doesn't need the GPL, or trademarks, to keep its intellectual property largely in the open.

    There are versions of Apache that are proprietary, as I recall. But that's not where most of the technology, or even code, is. There is plenty of code based on the X sources that's out there, and proprietary -- but really, how far ahead of XFree86 are these other X Window Systems?

    There are, in my opinion, exceptions to this seeming rule. I think there are programs that should be protected by the GPL, such as the Linux kernel, or the GIMP. But not all of it.
  • >First, IANAL, but i think it's patents which expire if not enforced.

    No, it's trademarks. (Kleenex, Xerox, etc.) Trademarks last forever if protected, it's only through failure to protect that they can be lost. (This has led to some annoying abuses of the trademark concept being used as a substitute for copyright. You can distribute the original Tarzan story, but you can't write new Tarzan stories, for example.)

    While open source might be trademarkable, it would be extremely hard to protect, simply because it is so widely used already.

    I'd almost suggest "gnuware" as an alternate term, but I suspect X and BSD license users would object based on the implied GPL bias.
  • Immediately one would panic thinking Microsoft
    will try to trademark the term, but guess what:

    1. Microsoft has already much overused similar
    terms like "open API" and "open interface"
    throughout their literature and it has not been
    a problem of being confused with Open Source.

    2. Microsoft, for the time being, seems to frown
    on Open Source and would rather not have their
    products be misconstrued as Open Source -- at
    least until their PR people wake up and realize
    that Open Source is a good term to be associated
    with, then you will see Microsoft using the
    words "Open Source" on all packaging and product
    literature.

    3. Microsoft could care less who owns
    the legal trademark on any word or phrase
    -- if they want to
    use the term Open Source they will anyway and
    anyday -- what are you going to do about it?
    Sue them? Take them to court? If the DOJ can't
    stop Microsoft from doing whatever it feels
    like then who can?

  • Trademarking this term is an obvious attempt to protect its meaning, which is a very important thing in the computer industry, or any technical field.

    In a perfect world, a 17" monitor would be SEVENTEEN inches on the diagonal, a 56K modem could transfer 7KB/s, a Java applet would run on all platforms with any Java Virtual Machine, a 300Mhz processor wouldn't have a performance rating, but would actually run at 300 million cycles/second, etc., etc.

    Standards *need* strict definitions to protect them from marketing. In my mind, Open Source doesn't mean "free", or "I get to see some source code", it means compatible with the DFSG--the Debian Free Software Guidelines. That interpretation is a strict interpretation on what Open or free means. It doesn't mean certified by the Open Consortium, or it's freeware. In fact, if it didn't sound so stupid, I'd suggest replacing the term 'Open Source' with DFSG-compatible, because it gets across the meaning.

    ...but here I am foiled yet again by the forces of marketing and hype, which you so clearly represent. I guess I'd be happy enough if we just had an RFC defining what Open Source is. (I haven't read them all, so maybe we do... :)
  • I keep seeing the claim that the term "open source" was used before ESR and firends started to promote it as a more precise alternative to "free software". However, I don't remember seeing the term used before. Even Sun, who at one point called everything something starting with "Open" (their bug database was called "Open Bugs") didn't use it.

    Can anyone point to some writen document, using the phrase "Open Source", dating from before the O'Reilly open source workshop?
  • > Let's say I acquire a GPL'd program and add
    > a function to it.

    The GPL ensures that you _can_ add this function. The right to enhance and redistribute the software you use is (to rms) a fundemental freedom, just like free speech. That is the freedom that the GPL protects.

    You are also allowed to take money for the function (thus, no free beer). You just can't deny other the same freedom you yourself received.
  • Maybe there shouldn't be any strings attached if it is given. I don't consider GPLed software to be given. It is shared.

    Those who don't want to be part of the community in which GPLed software is shared don't have to. The community gives freedom to those who don't want to deny others the same freedom.

    Btw, I am not allowed to kill someone else either and even though that might reduce my 'freedom' I think it is perfectly acceptable limitation. I am not allowed to make GPLed software non-free and that is also an acceptable limitation.

    Just like you can't expect to get the benefits of society without paying or in some other way give back to society you shouldn't expect to be able to take GPLed software and use in your proprieraty products. GPLed software is the currency that is used in the GPL community.

    "Flash-in-the-pan" popularity? You just can't get over that Linux might be more successful than the various BSD variants, eh? Heck, what if the reason for this is partly due to the GPL? Looks like jealousy to me.

    /mill
  • And if you'll follow the Check Status link at the top of that page you will find that it is listed as abandoned because of applicant failure to respond to an office action.
  • Well, I don't know who the "we all" in "we all knew it wasn't trademarked" was supposed to include, but it didn't include me. During all of these wars over who was to own the open source mark I thought that the trademark was still pending, and I was never aware that the pending status of the trademark had been revoked due to inaction on spi's part.
  • Microsoft and others have been using the term 'Open' long before Linux was even four lines of source code.

    I subscribed to Open Systems Journal for years, yet it had nothing to do with Linux or GNU.

    The Open Software Foundation created their own version of Unix and had nothing to do with Linux or GNU.

    Open means you have published the specs on how to interface with your hardware/software. I suppose by extention Open Source means you've published the source.

    And if Microsoft wants to call something Open API, then they are using the term correctly... as it has been defined by the computer industry.

    That's what made this so ludicrous. ESR comes along in 1998 to define a term that has been in use since at least 1990. Sheesh.
  • It's already protected by common usage.

    If someone tried to trademark it now pretty much anybody could pull out a copy of Infoworld dating back to last year and say "What are you talking about?"

  • I'm at the point now, where I just don't care
    about "Open Source" and whether or not there is
    a trademark to "hopefully" be defended by
    someone. If they don't defend it as we think
    they should, then it is worthless to us anyway.

    The true meaning has, and always will be, defined
    as RMS has defined it.

    I'm not sure you can define one term to mean
    what is meant. It would seem that no matter
    what you do to define a term, everyone will still
    define it as whatever they want. You will need
    to use multiple terms and/or words to completely
    define the meaning you wish to convey.

    Who cares if "Open Source" isn't a trademark, what
    would that mean anyway? We define what it means
    by the license we apply to our software.

    Derry Bryson
  • Yes, Microsoft has a history of steamrolling IP and trademark owners. [mbc.com]

    When you have money, you have power, and you are the law. Bow before Mr. Gates and repent.
  • The FSF is offering to pay $20K for someone to write a GNOME programming manual. I think they probably can afford to hire an intellectual property lawyer (in fact, I think they probably keep one on retainer).
    --
    Aaron Gaudio
    "The fool finds ignorance all around him.
  • What's wrong with open source? Now that we don't have to worry about OSI controlling the term, it merely becomes a subjective term. BTW, all these alternatives are more alternatives to "Free Software" than "Open Source" (following the OSI guidelines).

    The only change I see coming out of this is an end to all the bickering between SPI and OSI and the elimination of rogue organization (such as the OSI, rogue not because they are bad, but more because they broke from SPI and for a long time at least were controlled by two charaters) gaining control of the term "Open Source".

    If an institution chooses software because it has a buzzword of Open Source but isn't, then they get what they deserve for not fully understanding the buzzword.
    --
    Aaron Gaudio
    "The fool finds ignorance all around him.
  • [Sorry if this posted twice, it said there was an error in the first submission]

    What's wrong with open source? Now that we don't have to worry about OSI controlling the term, it merely becomes a subjective term. BTW, all these alternatives are more alternatives to "Free Software" than "Open Source" (following the OSI guidelines).

    The only change I see coming out of this is an end to all the bickering between SPI and OSI and the elimination of rogue organization (such as the OSI, rogue not because they are bad, but more because they broke from SPI and for a long time at least were controlled by two charaters) gaining control of the term "Open Source".

    If an institution chooses software because it has a buzzword of Open Source but isn't, then they get what they deserve for not fully understanding the buzzword.
    --
    Aaron Gaudio
    "The fool finds ignorance all around him.
  • Actually you're wrong. If you examine the FSF's position you'll see that they do indeed consider other licenses such as the BSD, Artistic and XFree licenses to be free. The difference is that they are not copylefted, and the FSF considers copyleft to be a better mechanism for keeping free software free.
    --
    Aaron Gaudio
    "The fool finds ignorance all around him.

  • Re:Actually, it is trademarked, although pending (Score:3)

    by dhms ( 3552 ) on Monday June 14, 1999 @11:54AM (#1851232)
    Ummmm.., I hate to burst (or, was that "Berst") your bubble. but did you bother to click on the "ckeck status" button?

    It returns:
    If you require additional information about the application status, contact the Trademark Assistance Center (703) 308-9000 (M-F 8:30 a.m. to 5:00 p.m. EST). You could also contact SOPHIA S. KIM, Trademark Examining Attorney. Click here to find out the examiner's phone number.

    Serial Number: 75439502

    Registration Number: (NOT AVAILABLE)

    Current Status: Abandoned: Applicant failed to respond to an Office action.

    Date of Status: MAY 24,1999

  • It wouldn't do them any good, anyway. It would be trivial for either SPI or OSI to contest that trademark successfully. Note that we did get the Linux trademark back (although it was a hassle).

    Bruce

  • Well, remember that I walked off of the OSI board a while ago, and I said at the time that it was time to call it "Free Software" again.

    However, if OSI has let this drop, it must be deliberate. They still have a trademark, just not a registered one. They can still re-apply.

    Geez, you sure give us a hard time for being the ones with the nerve to stick our necks out and do something. Want to try a mile in my moccasins, Kemosabe?

    Bruce

  • It has to be used in commerce. It's being used in commerce, and has been for quite a while now. Given the number of IPOs around it, I'd think you'd notice.

    Bruce

  • Burnt out, maybe. Folded up the tent and stolen into the night? Nope.

    OK, I read my own response. I walked off of OSI's board because I couldn't stand behind Eric any longer. The overriding of a board vote, the constant deprecation of Stallman, etc. I don't regret that decision.

    But fold up my tents? What gave you that idea?

    Bruce

  • Actually, to be registered as a certification mark, it's exactly the opposite. Others have to use it in commerce, with SPI or OSI's permission. The fact is that at least 20 companies have been using it in commerce with OSI's permission.

    The closest equivalent is the "Union Label", the garment workers union certification mark. They license it for the manufacturers to use, they do not use it in commerce themselves.

    Did you say you were an attorney? Not an IP one, are you?

    Bruce

  • Reading this over again, maybe we're both saying the same thing. It's a certification mark. Sorry about questioning your IP-ness.

    Thanks

    Bruce

  • Yes, but the first use by me in a public announcement of the Open Source campaign and certification mark is well-documented and precedes that Infoworld mention. So if OSI or SPI want to register it again, they have precedent and they can prove it.

    Bruce

  • Gee, I'm surprised I have to explain this one any longer.

    The GPL restricts your right to take away other people's rights. It's better that everyone be allowed to modify the program than just you, and nobody after you.

    Freedom includes responsibility. The GPL mandates that you behave responsibly regarding other people's freedoms.

    Thanks

    Bruce

  • It's still a trademark, regardless of the status of its registration. OSI can re-apply if they wish.

    I don't know why OSI elected to drop the ball on registration. When last they corresponded with me, they had an attorney working on it. I sent the registration papers to Nils Lohner at SPI quite a while ago, and he would have forwarded them to OSI.

    Evan is so darned malicious.

    Bruce

  • It's still in the USPTO database under pending trademarks. I did hear elsewhere that OSI failed to respond to an office action, but I'd not call it dead yet.

    Bruce

  • Well, remember I walked off of OSI quite a while ago and said it was time to call it "Free Software" again. So, I'm not going to get upset about the status of the trademark for its own sake.

    However, I had heard a while back that OSI had failed to respond to an office action, though I don't understand why they'd do that it was undoubtably deliberate.

    I wish Evan wouldn't sound so malicious. Doesn't he understand that a trademark is the best protection against someone else registering a trademark on the same thing?

    Bruce Perens

  • There's been some question regarding the legal status of the Open Source certification mark. Although the mark still exists, its application for federal registration has apparently been allowed to lapse, perhaps temporarily. In February, I published It's Time To Talk About Free Software Again [perens.com] , because I felt that the use of the phrase Open Source had caused us to think less about the freedom involved in Free Software. What I said then still stands, and thus I'm ambivalent about the fate of the Open Source certification mark. However, the Open Source Definition is still a good idea. That document has been a very important standard: it's helped us distinguish between licenses that provide a fair return to the free software community for the effort our developers contribute, and those that don't. Many large corporations and individual developers have been influenced to use better licenses because the community insisted that they be OSD-Compliant, and that's helped free software prosper.

    Now more than ever, as Free Software finally becomes commercialized, as $100 Million dollar IPOs draw the greedy as well as those who would treat us fairly, it's important that the free software community continue to insist on licenses that comply with the OSD. Our stand on licensing during the next year will make the difference between life and death for free software. Either we maintain the quid-pro-quo, or the developers who have made free software great will leave in disillusionment. Without the fair return to the free software community that the OSD stipulates, we'll be left with will be shareware-with-source, when we can get source at all.

    I wrote the OSD with the help of the Debian [debian.org] developers, and it still exists as the Debian Free Software Guidelines [debian.org]. None of the presently-announced Open Source Initiative board members were involved. This isn't to imply anything negative about them, it's just to point out that they aren't essential to the preservation of the OSD. Regardless of what happens with the Open Source trademark and the Open Source Initiative, the author of the OSD and many other members of the free software community will continue to stand behind the Open Source Definition. We will insist on software with OSD-compliant licensing, and we won't donate our efforts to anything else. I hope you'll do the same.

    Since there are a lot of newcomers to our community, I guess some of you might not have encountered the Open Source Definition. You can read an extended analysis of the OSD, with commentary, at this link [perens.com].

    Thanks

    Bruce Perens

  • RichardWare, or 'DickWare' for short? I don't think so. :)
    ---
    "'Is not a quine' is not a quine" is a quine.
  • We already have shareware, freeware, etc., all in common usage.

    Libreware carries the connotation of "free" without its unfortunate ambiguity. No compromising of principles (as in "Open Source") and no room for misinterpretation (as in "Free Software").

    It even strikes me as being palatable to the "right" (i.e. the corporate world) in a way that "liberated" could never hope to be.
  • I've seen the term 'freedomware' used in a couple of places. I think such a term could survive natural selection in the buzzword environment. It comes fairly close to expressing the intentions of free software and not as ungainly as 'libre software' or 'free (speech not beer) software'

    Alex

  • A grain of salt? (Score:4)

    by Jeff Monks ( 6068 ) on Monday June 14, 1999 @01:07PM (#1851250)
    It's not clear where this ZD guy got his information, but if it was straight from the USPTO's web page, it may not be the most current information. According to the USPTO's disclaimer page [uspto.gov], the web database could be quite out of date:

    Currency of the Web Database

    • The PTO?s trademark data on the Web is updated on a two-month cycle. Coupled with the time required for data production, this means that particular trademarks could be as much as four months out of sequence with the PTO?s internal trademark database.
    • The Web database does not include new applications that were filed and entered into the PTO?s internal trademark database during the last two to four months.
    • The Web database does not reflect changes made to the PTO?s internal trademark database during the last two to four months.
    • The Web database will show applications that registered after its last update as pending applications rather than registrations.
    • The Web database will not include edits made to individual records after its last update.
  • I've always been partial to the term "community software". It more accurately describes the software than either open source or free.

    I kinda like that, myself. Here's a vote (not that anyone's voting...) for this new moniker.

    --
    A host is a host from coast to coast...

  • In what way "not free"? Free doesn't necessarily == "with source", it just as easily means "no payment" eg freeware.

    You've just done a wonderful job of illustrating why we need better terms for describing the two concepts. In Comment 61 [slashdot.org], Arandir [slashdot.org] suggested the term "Community Software" for the concept of "free with source." (unless I misunderstood, in which case my apologies to Arandir...) I like it.

    --
    A host is a host from coast to coast...

  • As far as I'm concerned -- totally ignoring the three ring ego circus of ESR, RMS, and Bruce Perens -- the "Open Source" term didn't help to clarify matters very much as it was just as vague as "Free Software", if not more so. When Stallman said "Free Software", he meant the GPL and we all knew it. When Raymond said "Open Source", it could mean any number of things ranging from the GPL to genuine public domain to liberally-licensed proprietary software.

    What we really need is to come up with a rating system, something like the "Geek Code" but not so deliberately overcomplicated, that classifies software according to a few key points of its licensing terms.
  • I don't know where you got this idea. According to the GNU site, [gnu.org] they consider the GPL to be just one (good) example of a free copyleft license. Other things they count as free include copyleft-like licenses such as the QPL and MPL (which GNU has practical [gnu.org] but not moral problems with) and non-copyleft licenses such as the XFree86 license.

    Please, people, check your facts before characterizing other people's positions (especially rms's--many people seem to criticize him based on little more than hearsay).

  • In what way "not free"? Free doesn't necessarily == "with source", it just as easily means "no payment" eg freeware.

    Well, `free of charge' means `lacking payment' (`free of XXX': `not restrained by XXX'), but just `free' (period) means `not restrained' (period)--it's nons-specific.

    `free software' doesn't mean `software, gratis', but `software, unbound'.
  • Leaders are an interesting thing, anthropoligically speaking.

    They say things, and their followers believe them. They do things, and their followers support them.

    OpenSource crusaders, seem to have chosen Bruce Perens and Eric Raymond as their leaders.

    All this time, people have generally believed in what they've said about the supposed trademark, and generally supported their actions in defending it.

    Now it turns out, these two fellows who've been leading your crusade and protecting your slogan, were a lot more talk than action.

    How is it that a couple guys can spend so much time pontificating about their applied-for trademark and never bother to actually verify that they've got a valid, registered trademark?

    It's good for people to believe strongly in things. There are a lot of important things out there to care about. Some people, unfortunately, take it too far.

    Some times, some people get to the point where caring and believing in something surpasses the need to occasionally commune with reality. This is how we end up with Waco Tx, pseudo-islamic terrorism, you get the picture.

    Perens and Raymond are as fanatical about free software as the day is long. It's a good cause, I won't deny that. The concept of licensing intelectual property threatens to do society a great deal of damage. It has already to some extent, but nowhere near what it's capable of. We're just getting started, to tell the truth.

    I'm not here to call names. It's easy when people listen to what you say to find yourself believing too much in what you tell them.

    When you accept or reject without thought, you do your leader a disservice. There are situations where it is appropriate, but this is not a life or death situation.

    True collaboration is a matter of maximizing the potential of a group. If both of us agree, one of us is not necessary. Outside of close friends, family members, children, and spouses, you aren't doing anybody any favors by giving them your unquestioning devotion.

    So consider this carefully. I don't think it's appropriate to point a finger at someone else until you've considered whether you should be pointing it at yourself.
  • Just some idle thoughts. With all the different "Open Source" licenses out there, it seems worthwhile to develop some kind of metric to allow someone, at a glance, to determine if the license is free (speach) enough to be used in their project(s). Two orthoganal measurements come to mind immediately: Freedom of use (what limits if any, are there?) and Protection from forking (perhaps based on historical stats of othe projects under the same license, or an evaluation of the likelihood based on the license characteristics themselves). A third might be "hijackability" of the code, though I think the other two measures cover that pretty well.

    E.g. on a scale of 0 to 9, the GPL might fall have an "f" value of 7 and a "p" value of 8, while the BSD license would perhaps have an "f" value of 8, but a "p" value that is much lower. Public domain software would have an "f" value of 9, and a "p" value of 0. (Proprietary licenses would presumably have an "f" value of 0, but a "p" value of 9.) No idea how one would actually go about quantifying such things, or how to do so in an "open" manner (as opposed to, say, just appointing a committee we're all supposed to trust to do this). Whatever the solution, it seems some kind of measurable metric that has a little more precision than "so-and-so has said it meets the Open Source definition" is IMHO really needed, though.

    A third metric comes to mind -- how compatible is the license with other open licenses. I.e. how much would using a particular piece of code "pollute" the rest of the code? How would one best define and measure this "c" factor?

  • What is it with Americans? How did "liberal"
    become an antonym to "capitalist"? Liberals
    are, pretty much, all capitalists. Ever heard of
    "liberal capitalism"? Capitalism is a taxon of
    a different order; it is in contrast to
    terms such as communism and anarchism, not
    liberalism.



    I suggest you waste less time on slashdot
    and get yourself an education.

  • Where does one register trademarks again? hehe =)

  • I don't really understand why people claim that GNU software is `free' as in `free speech,' rather than `free beer.' To me it seems quite the opposite.

    Let's say I acquire a GPL'd program and add a function to it. If I had the powers of free speech, I could utter this function in any way I wanted, source or binary, to anyone. But I can't; I must not give someone else a compiled copy of that function along with source and binaries for the rest of the GNU software. Thus, my free speech is compromised in that I cannot say some things I've written in the way I want to say them.

    On the other hand, the GPL does ensure that you can always get a copy of the source for a program, and any extensions, fixes or changes anybody wants to distribute, without paying any money for it (except perhaps a nominal sum to cover distribution costs). Thus, `free beer.'

    cjs

  • The GPL ensures that you _can_ add this function.
    Yes, but only at the price that my function is then taken away from me, and I no longer have the freedom to do what I want with it.

    cjs

  • The term "open source" was fairly uncommon when Perens and Raymond started using it. It would have made sense as a certification mark for a particular class of software licenses then.

    While many people may not like that kind of license (and I prefer "free software" in the GNU sense myself as well), it would still have served a useful function at that.

    However, by now, the term may indeed have become too generic, since it has rarely been claimed to be a trademark when used. Maybe GNU at least should learn a lesson from that and think about claiming a trademark on "GNU", "GPL", and "LGPL", as well as their long forms.

    Without trademark protection, anybody can release something under the "GNU Public License", and you may assume that you are getting the usual "GPL", but it may contain unexpected clauses. Getting trademark protection doesn't require registering, it merely requires using "TM" fairly consistently.

  • loss of trademark is a loss for us all (Score:4)

    by jetson123 ( 13128 ) on Monday June 14, 1999 @04:48PM (#1851263)
    Companies like Microsoft subvert technologies by abusing terminology. Their "transactional" file system isn't really transactional, their "Java" implementation makes few of the safety and security guarantees that Java stands for, and they have already indicated that they think Windows NT is open source--you give them a lot of money and sign your rights away and you get the source. Changing the meaning of words is much simpler and cheaper than actually delivering. A lot of other companies with the moniker "open" in their name also really deliver highly proprietary products.

    Trademarks ensure that people get what they think they get, and that's a very good thing in a market where companies benefit enormously from using the latest public-relations-friendly buzzwords.

    Of course, there is always the risk that a trademark isn't administered well. But a well-administered trademark on the term "open source" could have ensured that people have a clear understanding of what they get and what they don't get when, say, Apple claims that their release is "open source". It could also have encouraged companies to go the extra mile to make their releases "open source" compliant, rather than having each company's lawyers make things up as they go along.

    While a few years ago, the term "open source" was novel enough, I fear it may be too late to rescue the term "open source" as a trademark. And that's a big lost opportunity to anybody interested in open source.

  • First, IANAL, but i think it's pattents which expire if not enforced. Trademarks don't matter. Second, I hope microsoft or some other evil empire gets its hands on "Open Source" so people will stop using the damned phrase. I'm personally sick and tired of open source this and open source that. Hell we even have microsoft and al gore claiming shit is open source. It's gotten obscene. I remember the days when GNU, etc. were nothing more than software and religion. When did this all become so political?

    Now onto your two points:
    1) Who cares? "Open Source" is two commonly used english words. First off the trademark would never be granted. Second, it wouldn't hold up in court. Third, who cares? People will still keep using the phrase no matter what the backwards US legal system says.

    2) People already are abusing the term. Al Gore described his damned website as "open source." Microsoft claimed that licensing the winNT source code to universities was "open source." Hey, my mouse is "open source" (it's just as legitimate in this sentence as it is in the others).
  • Guess what: Open Source still is a trademark, and always was. Trademarks are like copyrights. All Eric Raymond has to do is say, "Open Source is my trademark," and it is. If someone else thinks they have a right to it, they can contest it, but unless they can show prior usage or transfer of the mark or something like that, ESR's claim stands. The fact that Open Source is not registered in no way invalidates it as a trademark. Frankly, I'm quite astonished nobody has mentioned this yet.
  • Check out http://www.spi-inc.org


    Here's a quote from SPI:


    "The Open Source trademark is managed by Eric Raymond on behalf of the free software community. "


    That's taken from the "trademarks" section of their web site.

  • There seems to be a mistaken assumption in the article, that "open source" is a term just waiting to be snapped up by profiteering companies and whored to uneducated consumers. This is patently wrong.

    The fact is, the term "open source" has very few connotations in the mind of the consumers that translate into positive market value. People may look upon it as cool, even courageous, but that's before they go to the store. Business executives still, to a large extent, view "open source" as being synonymous with "hackerware" and "unsupported". Companies that go open source (in name) are either dedicated solely to the Open Source community for a demographic (e.g. RedHat) or are quick to skip over the term when going after corporate customers. This isn't because they are trying to hide from the Knights Errant of Free Software. They just don't need the term as anything more descriptive than an advertising ploy.

    Is it really the duty of the Free Software Movement to regulate the term? I don't think so. After all, the same people that are going to continue to be influenced by a company being Open source (us) are the same people who can recognize a fraud at twenty paces. "Open Source" might not be trademarked, but "BSD" and "GNU" are, and when strange new licenses start cropping up, we will take note.

    When it's all said and done, is the loss of the trademark really a bad thing? I think a much more important concept, although maybe not completely independent, is maintaining the purity of the Movement. That doesn't mean that companies have to obey strict guidelines in order to release their source and get recognition for it; if anything, that would simply scare those companies away. It just means that the people already committed to the movement need to remain productive.

  • That's correct, but there is a reason to officially register your copyright: It increases the liability of anyone who copies it.
  • In what way "not free"? Free doesn't necessarily == "with source", it just as easily means "no payment" eg freeware.
  • When trademarks are held, they have to be actively enforced or the Trademark looses its validity. It seems to me that a trademark on "Open Source" would be uninforcable, at least without spending a lot of money and generating a lot of ill will, so it seems better to me that it remain untrademarked.

    There are two problems with this.

    1) MS, or someone evil, will register the trademark and make things difficult for Open Sources. They have the resources, but I hardly think it would be worth their while, given the difficulty of reclaiming "Open Source" from the violent and chaotic sea that washes upon it.

    2) Someone will abuse the term. Possible, even likely, but I think it is better to mobilize grass roots to deal with these than to have an organization that owns the trademark and arbitrates what is or isn't open source.
  • I would suspect that the phrase is in the public domain (nyuk nyuk) at this stage. I'm sure someone will register it, but the first time they try to sue someone they'll come up against the combined might of the FSF and, well, everyone. It'll (I think and hope) stand up in court, even if they're willing to spend godzillions on lawyers.
  • I would be interested in knowing if the term can still be trademarked, and if so, if it is the FSF Eric Raymond, or someone else's interest to do so in order to protect current projects started with the words "open source" as part of the description.

    Or would the fact that the SPI/Perns/Raymond application lapsed make all of the existing "open source" projects prior art to any new applicant, and thus place the term in the public domain.

    Thoughts, anyone?

  • IANAL, but I think trademarking "open source" would be like trademarking "object oriented". The trademark office might grant it (since they seem to be clueless), but I doubt it would hold up in court, since many different companies are using the phrase.

    Wicked Werdna, what's your opinion?
  • If you're aiming for German, kostenlos is definitely the wrong word. It is free as in beer, not speech.

    Mike
    --

  • 3rd vote for "Community Software".

    (CommunityWare...? Naah!)
    --
    - Sean
  • Seriously, to trademark "Open Source" would go against what it represents, IMHO. The term should be protected only by repeatedly using it correctly, hence making it obvious when it is used incorrectly.

    Hmm... the same way it's obvious to most people when the word "hacker" is used incorrectly...?
    --
    - Sean
  • I see what you mean.
    "A descriptive term tells the consumer something about the product and may only become a trademark after it has acquired secondary meaning. This occurs after a period of time during which the term's association with that product is exclusive."

    Note the last 10 words, boys and girls: "during which the term's association with that product is exclusive."

    Kinda hard for anyone to trademark "Open Source" as things stand... there you go, from a (more-or-less) definitive source!
    --
    - Sean
  • Pure BS. No trademark can exist for "Open Source."

    Check it out:

    http://www.wld.com/conbus/weal/wtradmk1 .htm [wld.com]
    --
    - Sean
  • No, MS is not going to trademark it.

    They can't, and neither can anyone else. Here's why:

    http://www.wld.com/conbus/weal/wtradmk1 .htm [wld.com].

    Pay special attention to Paragraph 7 (the one that starts, "A descriptive term...")
    --
    - Sean
  • The problem with "free software" is that it is neither "free beer" nor "free speech". It is merely software with a more permissive license. To equate "follow my rules in order to use my software" to the concept of "free speech" is ludicrous.

    Or to put it politically: if my free speech is predicated on the free speech of others, then my right to distribute my software as I wish is predicated on the rights of other to distribute their as they wish. To say that non-free software is slavery is to say that speeches we don't agree with are slavery.

    In a world with 100% software freedom (no copyright or intellectual property laws) everything would be in the public domain, software could be released without source code, and the GPL could not exist.
  • I've always been partial to the term "community software". It more accurately describes the software than either open source or free. It is also a better to term to explain stuff to a non-programmer, who often times doesn't care whether they have the source code or not. All member of the community have a role in community software, whether or not they are programmers.

    The problem with "open source software" is that is is easily confused with "open software" or with software whose source is available, but wholly proprietary (like MFC).

    The problem with "free software" is that it tends to make people think "political freedom" and then to extrapolate non-existant political rights from it (and all the resultant political correctness).
  • Have you also ''burnt out, given up, folded tent, and stolen off into the night?''

    Go and read your own response.

  • I use a software program called "Semprini."

    (gets taken away by the police)
  • Can someone get on this _now_? The sooner we solve this problem the better. I have a bad feeling some Eeeeevil Company takes it before you can say Microsoft.
  • Eh..., English is not my native language, but why not a plain and simple "public software" ??

    Kees B.
    (Amsterdam, The Netherlands)
  • I don't know...people accuse free software advocates of being anti-capitalist enough already. "Community software" could do without the "communi-" part, IMHO, although it does sum up the idea fairly well.

    Here's an thought. The idea here is to market free software to suits (since clueful folks can simply bother to learn how software licensing works ;^] ). It seems to me that open source software works by companies providing services -- such as fueling development, or having good support centers, or putting out nice installation CDs with manuals and such -- and not by controlling software products. Open source software is a move away from "software as a product" and over to "software as a service." So if "open source" turns out to be a dead-end buzzword for the PHBs, how about "serviceware"? Says nothing about freedom, but no exec cares about freedom. It does, however, describe a different (and perhaps more lucrative) business model.

    Maybe that's too abstract. Plus, OSS seems to have really exploded in the press recently, and has become a pretty well-known buzz word. Media-wise, we may be stuck with it, even if all trademark attempts (past and future) fall through.
  • I don't know.. reminds me of liberal.. and many people who use linux and other free software are accually believe it or not capitolist when it comes to everything else.
  • First of all, you can trademark "Ford" or "GM" or whatever.
    Second, you can trademark "Dolby", even though it doesn't refer to an object, but a process or set of conventions.
    Like "Dolby", "Open Source" is a process and set of conventions. Like the software it describes, it needs protection, so that no one can claim to be OS when they aren't.
  • Actually In object oriented programming terms the logical specification of a complex entity is a class and instances of classes are objects.

    And its a lousy metaphor - you should have used platonic forms or Jungian archetypes if you wanted to be pretentious and nearly accurate =)

  • That, or "internet"

    or "information superhighway"


    on second thought, he can have "information superhighway."

    :)
  • Open Source means that anyone can see the source... BSD, GPL, and most other Open Source licences are open source.

    As long as software is covered under BSD it is Free(free == freedom, not beer) because you are relatively unrestricted as to what you can do with it, you can reverse engineer it if you don't get source, even to the exent that you can redistribute the code as a closed-source project. That is freedom.

    GPL, restrict you. You must remain open source under the GPL, and you must use GPL. This isn't neccesarily bad, and BSD isn't neccesarily good, it all depends on your personal opinion.

    Restriction == Not Free
    Unrestricted == Free
    Open Source == the source is open.... (restricted or not)

    Thank you, have a nice day
  • I think we need a short catchy name along the lines of "shareware" but which embodies the philosophy of open source etc. My first idea was "fairware" but thats sounds a bit lame.

  • you forgot to hit the "Check Status" button at the top of the page... it indeed is "Abandoned" as of May 24th, 1999.

  • "Open Source" shouldn't be trademarked, it should be GPL'd!

    Then any changes or modifications that are made to it must be made in a public release. For example, "Open Sourced" would really be "Open Source" version 1.1. For the 2.0 version, we would have "Open Coded". A complete rewrite for version 3.0 could leave us with "Openly coded by thousands of happy programmers" and would leave room for modular based design. Then anyone could add the "who love their life" module (since it will be made freely and publicly available) to make "Openly coded by thousands of happy programmers who love their life." At this point, the boys in Redmond will compare the results of GPL'ing terms to ending up with product names like "Word" and "Works" (blah! boring!) they will have no choice but to submit to the superior ways of the GPL.

    Seriously, to trademark "Open Source" would go against what it represents, IMHO. The term should be protected only by repeatedly using it correctly, hence making it obvious when it is used incorrectly.

  • I don't know.. reminds me of liberal.. and many people who use linux and other free software are accually believe it or not capitolist when it comes to everything else.

    Two things. First, "liberal" doesn't always mean politically liberal. Secondly, Linux is capitalist when it wants to be.

    The term "liberal" isn't always dirty, and it isn't always the political left. Have you ever seen a conservative arts college? Ever borrow a book from a conservatory? "Liberal" is not always associated with "Left", "Democrat", or "Socialism".

    Concerning capitalism, a lot of us Linux types are pretty capitalist when it comes to Linux. I would certainly suggest that someone like Bob Young is at least fairly capitalist.

    Free software is free as in speech, not beer. You just can't charge for licensing, because you can only limit licensing in certain ways. While this is more liberal than the license fee business model, this is right in line with the business model common to most "hard goods". That is, if you sell me a car, I own it and can do whatever I please with it, no strings attached.

    Linux is both community and capitalist. You won't make money in Linux by selling licenses. For a time, you can make money selling the CDs (until everybody has fast download capability). You can make money by being a Linux guru, by writing books, supporting and maintaining, and providing service. The model works because those gurus who make money on Linux will want to code for it (and often will in the course of their professional duties).

    How capitalist is Linux? A lot of people are betting a lot of money that Linux can take market share away from Microsoft, the undisputed king of the license-fee business model, while that business model is in place. Red Hat thinks that they can make money without licensing fees in an environment with a very hostile, license-fee-fortified market leader, as competition.

    If making money by serving the customer is liberal and anti-capitalist, then Linux businesses are liberal and anti-capitalist. I am not cynical enough to believe that this is the case. Free software produces profits with a nonstandard business model, and is willing to prove it in the capitalist arena.

  • Inquiring minds want to know.


    Apparantly you can't get throw this post with a bold word in every sentence.
  • You mean, like the OSD [opensource.org]?

    Sorry, but you're inventing a wheel.
    -russ
  • For those who would like to find out how trademarks really work, may I suggest dropping by nolo.com [nolo.com].

    If y'all take the time, you'll learn that trademarks don't need to be registered, and in fact cannot be registered until they've been in use and established. Actually, only a fraction of trademarks are registered. An ordinary, unregistered trademark is indicated by the little "TM" symbol, while a registered trademark is indicated by the "R in a circle".

    IANAL, thank Heavens.

  • The term "Open Source" was controversial when it first came up, as those in the "Free Software" camp felt it compromised some of the principles they stood for.

    Maybe now is the chance to chose a better name. Free Software advocates have long complained that there is no word in English to distinguish between free beer and free speech, although they note that such a difference exists in other language.

    So why not borrow from another language? Maybe something like Libre Software (or Liberated Software even if that isnt seen as perjorative) could be used to really say what is meant. Of course this probably won't please everyone still, as I suspect that many who use the term "Open Source" really don't want to give users as much freedom as Free Software authors would.

    Marv

  • Any response from Perens, Raymond? (Score:3)

    by HarpMan ( 53271 ) on Monday June 14, 1999 @12:32PM (#1851312)
    Would Bruce Parens, Eric Raymond, or anyone else from OSI or SPI care to talk about this? I don't recall the exact wording of Peren or Raymonds statements, or the wording on SPI's page, but they certainly left the impression that there was something worth disputing about -- that either the term was trademarked or registered to be.

    Why the big soap opera much ado about nothing? Were these guys hiding the truth from us (that there was no Open Source trademark)? Or were they ignorant of the fact that the trademark expired? If the latter, then they're incompetent in legal matters and shouldn't be handling trademark issues at all.

    Not that I'm flaming Raymond, Perens, et al, but this is really embarassing.

    -----------------------------

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