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"Owning" a Trademark - The SugarCRM et al License Debate
Tuesday, July 17 2007 @ 11:59 AM EDT

There is a discussion going on at SugarCRM's forum page, "Why the Sugar license is mad, bad and may be dangerous" -- part of a much larger discussion that Matt Aslett captures well in this article on the current state of such non-OSI-approved licenses -- that reminded me that I've been meaning to explain something to you about trademarks. I keep reading sentences that OSI doesn't "own" the trademark to Open Source. I think such a sentence should be written instead that it doesn't have a *registered* trademark, but here's the thing: you don't have to register a trademark to have one. I think it's important to understand that, so let me show you some materials I've collected for you on this subject.

Here's the USPTO's "Basic Facts about trademarks, and here's what it says about registering one:
Is registration of my mark required?

No. You can establish rights in a mark based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages, e.g.,

* constructive notice to the public of the registrant's claim of ownership of the mark;

* a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;

* the ability to bring an action concerning the mark in federal court;

* the use of the U.S registration as a basis to obtain registration in foreign countries; and

* the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.

When can I use the trademark symbols TM, SM and ®?

Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO. However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.

As you can see, registering has many advantages, but not registering doesn't mean you can't establish rights in a mark. Considering OSI's long association with OSI-approved lisencing, I doubt any lawyer would tell its client that OSI has no conceivable rights.

Bitlaw explains trademarks is some detail:

A mark is infringed under U.S. trademark law when another person uses a device (a mark) so as to cause confusion as to the source or sponsorship of the goods or services involved. Multiple parties may use the same mark only where the goods of the parties are not so similar as to cause confusion among consumers. Where a mark is protected only under common law trademark rights, the same marks can be used where there is no geographic overlap in the use of the marks. Federally registered marks have a nation-wide geographic scope, and hence are protected throughout the United States.

What is unique about trademark law is that it is designed to protect the public, not just the owner of the mark. By that I mean that the whole purpose is to let people know if some product or service really is what it claims it is. That's why I can't cook up some cookies and sell them as Famous Amos Cookies. He has that mark, and if I do that, people might buy my cookies thinking they are his. Trademark law is designed to prevent me from doing that. Although I do make good cookies, and you wouldn't be disappointed, you surely would be confused as to who prepared and sold those cookies to you.

Here's Bitlaw's page on common law trademarks:

Trademark rights arise in the United States from the actual use of the mark. Thus, if a product is sold under a brand name, common law trademark rights have been created. This is especially true once consumers view the brand name as an indicator the product's source....

Federal registration, a system created by federal statute, is not required to establish common law rights in a mark, nor is it required to begin use of a mark.

So with the phrase OPEN SOURCE, it has always had a clearly defined meaning, defined by OSI, and the list of OSI-approved licenses has always meant that if you see a license on that list, it has met the definition of Open Source as it has always been defined by OSI and has the right to call itself Open Source. Here's some more background on the debate, also here.

Still think OSI can have no trademark rights because it didn't register the mark?

The issue, then, isn't whether they registered; the issue is, is it so generic it can't be owned by anyone or merely descriptive, and if descriptive, has it nevertheless achieved a secondary meaning that could qualify it as a mark? I'll let Bitlaw explain that last bit:

However, it is possible for descriptive marks to "become distinctive" by achieving secondary meaning. Secondary meaning indicates that although the mark is on its face descriptive of the goods or services, consumers recognize the mark as having a source indicating function. Once it can be shown that a descriptive term or phrase has achieved this "second meaning" (the first meaning being the generally understood meaning of the term or phrase), a protectable trademark is developed. Secondary meaning can be achieved through long term use, or large amounts of advertising and publicity. The acquisition of secondary meaning is often proven through the use of consumer surveys, that show that consumers recognize the mark as a brand, such as "FORD", as opposed to a descriptive term, such as "reliable"

Black's Law Dictionary (Fifth Edition) defines secondary meaning like this:

"[A] ... party through advertising or massive exposure ... [establishing] its trademark in the minds of consumers as an indication of origin from one particular source."

Can't you imagine a plausible court argument that Open Source has now achieved secondary meaning, that the public associates it with OSI approval? IANAL, but I sure can. That same page goes on to explain what courts look for in determining if a mark has reached secondary meaning:

Courts examine the following factors in determining whether a name, word, term, or trademark has acquired secondary meaning:
1. The length and manner of use;
2. The nature and extent of advertising and promotion; and
3. The efforts made in promoting a conscious connection between the name, word, term, or mark and the product, service, or business in the minds of consumers.

Do you really think OSI would have any difficulty meeting the requirements of that list? To add to the pot, OSI does have a registered mark on OPEN SOURCE INITIATIVE APPROVED LICENSE, which I can't link to because the USPTO hasn't joined the 21st century yet technically. What that mark means is that no one else can use that complete phrase in the areas that OSI does, and frankly, that would seem to add weight to the secondary meaning argument. No one can claim to meet the OSI credentials without actually meeting them, and for sure no one could assert a claim in the phrase Open Source higher than OSI's, I don't think, because of the well-known history.

To my thinking, it's more like the Open Group, which owns the UNIX trademark. Unix is also arguably a descriptive term, but you can't call your software UNIX without meeting the Open Group's requirements, and that does mean something to people. It means exactly what Open Source means: that the product has met specific requirements set by an entity recognized as having the authority to decide who does and who doesn't meet them.

So, with that background, you will comprehend why Aslett reports that SocialText and others have adjusted their licensing to be OSI-approved. SugarCRM has said it might consider GPLv3, but so far is has made no public change. Hopefully it will, so we can all move on to other discussions. Here's their current license, SugarCRM Public License.

The comment on SugarCRM's forum relates not so much to issues of control of distribution and modification or whether it's OSI-approved, but specifically objects to the requirement in the license that every splash screen show the phrase "Powered by SugarCRM":

However, in addition to the other notice obligations, all copies of the Covered Code in Executable and Source Code form distributed must, as a form of attribution of the original author, include on each user interface screen (i) the "Powered by SugarCRM" logo and (ii) the copyright notice in the same form as the latest version of the Covered Code distributed by SugarCRM, Inc. at the time of distribution of such copy. In addition, the "Powered by SugarCRM" logo must be visible to all users and be located at the very bottom center of each user interface screen. Notwithstanding the above, the dimensions of the "Powered By SugarCRM" logo must be at least 106 x 23 pixels. When users click on the "Powered by SugarCRM" logo it must direct them back to In addition, the copyright notice must remain visible to all users at all times at the bottom of the user interface screen. When users click on the copyright notice, it must direct them back to

Not only can such a requirement result in ridiculous looking splash screens if everyone starts doing this, and the comment includes what such a page could look like, but it also can result in juxtaposition of the mark with content SugarCRM might not really wish to be associated with, as delineated in the forum discussion. And with trademarks, there are rather onerous policing requirements, which in my view can become an unsupportable burden if your mark is now required to be plastered everywhere. Here's a law firm explaining the pragmatic aspect of trademark policing, and it mentions that it costs on average a half million dollars for just one lawsuit to enforce your mark in the US. License terms have consequences, because there is always the implied need to make someone comply, so the more complex your license becomes, the more it is likely to cost to make the world and its dog comply.

So why might a company want such a requirement? Zimbra and others have used similar licenses, and on here is Zimbra's explanation back in 2005:

The Zimbra AJAX Public License (for our AJAX Toolkit) is vanilla Mozilla, but (as you point out), the Zimbra Public License (which is also derived from the MPL) does have a UI attribution requirement that may prove controversial in some quarters. The Zimbra Community is not alone in taking this approach, and moreover, we expect this trend to grow with the proliferation of open source applications that are architected as a rich AJAX/Web 2.0 user-interface married to a supporting server that exports XML bindings to the AJAX client.

Our goal at Zimbra for such attribution was and is to encourage large commercial companies that elect to retarget rich open source UIs like Zimbra's to their own proprietary back-ends to also give some recognition back to the open source projects from which they derived their solutions. Otherwise, we felt there was some risk that a nascent open-source project like Zimbra could become fragmented or co-opted by bigger companies. Our hope is that this strategy will encourage balanced investment in both the client and server technologies necessary for the Zimbra community to be successful.

I think it's not impossible to comprehend or even relate to that worry, but they may not have thought it through. By the way, here's their license.

I can't resist reminding everyone that asking for recognition by requesting that everyone say or write GNU/Linux instead of just Linux is something Open Source folks have derided for years. And while one can request, once you make it a requirement, you have encumbered the code with a requirement that isn't part of the Open Source Definition and that clashes with it. For clarity, I'll remind you that the OSD is not identical to the Free Software Definition, and you won't find Sugar's license on FSF's list either. So SugarCRM is a bit in limbo and would enhance its standing in both communities by clarifying what exactly it is. Hence the question Dana Blankenhorn raised, is this license and others like it really Open Source? By the way, I noticed that Palamida now lists 171 projects that have adopted GPLv3 already.

Can a company say, "It's Open Source enough to me by my personal definition"? Or isn't there already a definition the community has long supported and accepted? So while companies can use any license they wish, the argument is that they ought not to use a phrase that already has a clearly defined meaning and attach it to a new definition, particularly when the phrase isn't theirs to define. Hopefully, this little tour of trademark law will help you understand the arguments on both sides better.


"Owning" a Trademark - The SugarCRM et al License Debate | 294 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: PhilFrisbie on Tuesday, July 17 2007 @ 12:08 PM EDT
And the first is lisencing!

[ Reply to This | # ]

OT here please (Off-Topic)
Authored by: rc on Tuesday, July 17 2007 @ 12:11 PM EDT
Things not directly related to the article go here, please.

Be sure to read the 'important stuff' before posting!


[ Reply to This | # ]

"Owning" a Trademark - The SugarCRM et al License Debate
Authored by: tknarr on Tuesday, July 17 2007 @ 12:14 PM EDT

To SugarCRM and Zimbra and others, I have only one suggestion: look back on the long history of discussions on the BSD license with the attribution clause. There's a reason the BSD folks decided that dropping the attribution clause would be a good idea, after all.

Learning from your own mistakes is good. Learning from someone else's mistakes is better.

[ Reply to This | # ]

Comments on newspics here, please
Authored by: rc on Tuesday, July 17 2007 @ 12:18 PM EDT
In accordance with the new schema, here's where newspick comments go, please.

As usual, please read the Important Stuff below your Post a Comment box, and use clicky links (in html mode) if appropriate.

And, please remember: 'Preview' is your friend

BTW - what is the industry-standard title for this comment supposed to be?


[ Reply to This | # ]

Serving the Public Good
Authored by: racergreg on Tuesday, July 17 2007 @ 12:24 PM EDT
What is unique about trademark law is that it is designed to protect the public, not just the owner of the mark.

This concept of "protecting the public" is not unique to trademarks. Let's not forget that the whole point of copyrights and patents is to trade a limited monopoly for release of the information to the public.

Unfortunately, this concept has been subverted in recent years, such that we are supposed to believe that copyrights and patents are solely to protect the business plans of the holders. The result? Fair use is infringement, copyrights should last forever, patents can control ideas, etc.

[ Reply to This | # ]

"Open Source" predates OSI
Authored by: Anonymous on Tuesday, July 17 2007 @ 12:27 PM EDT
The phrase "Open Source" to describe software predates the founding of
OSI. Can someone explain how a generic term, one that doesn't even have 'tm'
around it when used by OSI, could be co-opted by OSI?

That's the part of trademark law I don't understand.

[ Reply to This | # ]

"Owning" a Trademark - The SugarCRM et al License Debate
Authored by: Anonymous on Tuesday, July 17 2007 @ 01:10 PM EDT
I guess I don't understand why the mark isn't registered. It isn't that
expensive, is relatively easy and offers a great deal more protection.

I know my business registered its trademark after somebody in another state did
a state registration and then sent us a cease and desist order. We did a
federal registration and that solved that problem.

You may have the mark in service before somebody else comes along but if the
second part registers the mark, you're basically out of luck because 1) you
didn't register the mark; 2) public notice was made of the registration
application; and 3) the new registration applies to various defined use which
you would now be prohibited from using.

Get a Good Patent & Trademark Attorney!

[ Reply to This | # ]

"Owning" a Trademark - The SugarCRM et al License Debate
Authored by: raya on Tuesday, July 17 2007 @ 01:35 PM EDT
The issue, then, isn't whether they registered; the issue is, is it so generic it can't be owned by anyone or merely descriptive, and if descriptive, has it nevertheless achieved a secondary meaning that could qualify it as a mark?
Surely we also need to consider _why_ they don't have a registration ? IIRC they tried and failed - it was deemed either too generic or descriptive (or maybe both) to protect. In which case if they try to assert rights, the failed attempt to register will be used by the defence to show it is unprotectable.

In other words, hasn't the issue about generic/descriptive already been decided by the rejection of the registration ?

Can a court really find that a mark is protectable when registration of the mark has been denied because the mark was considered unprotectable ?

[ Reply to This | # ]

So, why did a fork appear of SugarCRM?
Authored by: Peter Baker on Tuesday, July 17 2007 @ 01:49 PM EDT
SugarCRM seemed a nice enough package, but then I came across vtiger which is making a big song & dance about being a 'SugarCRM derivative' that is really "open" - I will have to find out what caused that split.

You can download the whole shooting match including Thunderbird integration and there's a handy version which you can install even on a Windows laptop to have your own private service so you can test to your heart's content - something I found less possible with SugarCRM.

But both of them have made no move towards OpenOffice integration yet, which is IMHO a missed opportunity. Shame.

= P =

[ Reply to This | # ]

"Owning" a Trademark - The SugarCRM et al License Debate
Authored by: Anonymous on Tuesday, July 17 2007 @ 01:57 PM EDT
"Can't you imagine a plausible court argument that Open Source has now
achieved secondary meaning, that the public associates it with OSI

I can imagine it, but that's all. That isn't reality, at least not today.

Simple test: Ask people "What is open source?" Then ask them
"What is the OSI?" Lots of people will have an answer to the first
question that probably doesn't mention the OSI. Only a few will be able to
answer the second question.

[ Reply to This | # ]

I disagree
Authored by: Anonymous on Tuesday, July 17 2007 @ 02:00 PM EDT
This is the first time I have disagreed with PJ. I am happy to say that if a
licence is approved by the OSI then it's good enough for me, and also that if
the OSI disapproves of a license then I'm probably not interested either.
However, to claim that the OSI "owns" the phrase Open Source strikes
me a particularly arrogant, and rather more the kind of claim I would expect
from SCO or MS than from PJ (or the OSI).

That attribution clause would probably be enough to prevent me from considering
using SugarCRM (if I was looking), but no way would I want to claim that it was
illegal for them to describe their software as Open Source, or try to sue them
for using the term.

[ Reply to This | # ]

"Owning" a Trademark - The SugarCRM et al License Debate
Authored by: Nick.Barnes on Tuesday, July 17 2007 @ 02:01 PM EDT
The OSI tried to register "Open Source" as a trademark when it was founded, but the USPTO rejected it in 1999-06 as being too descriptive. The term itself was chosen at a meeting in 1998-02. Some history here, here, here, and I'm sure elsewhere.

[ Reply to This | # ]

Famous Amos - interesting example
Authored by: Anonymous on Tuesday, July 17 2007 @ 02:07 PM EDT
Your use of Famous Amos as an example is both amusing and instructive, as the actual gentleman in question long since lost any rights to that trademark, and in fact cannot use that name to sell cookies any more. This MSNBC story might be of interest.

[ Reply to This | # ]

Wally no longer controls Famous Amos
Authored by: Anonymous on Tuesday, July 17 2007 @ 02:17 PM EDT
That's why I can't cook up some cookies and sell them as Famous Amos Cookies. He has that mark...
According to Wikipedia, Famous Amos is now a Kellogg brand.

[ Reply to This | # ]

"Owning" a Trademark - The SugarCRM et al License Debate
Authored by: DannyB on Tuesday, July 17 2007 @ 02:27 PM EDT
PJ Wrote...
Can a company say, "It's Open Source enough to me by my personal definition"?

Similarly, I'd ask...

Can a company say:
  • It's Unix enough for me by my personal definition.
  • It's Microsoft Vista enough for me by my personal definition.

This is brazenly abusing an accepted mark.

You might be able to get away with fuzzy terms like "It's fuel efficient enough...", "It's high quality enough...", "It's as secure as any Microsoft product and that's good enough for me by my personal definition of secure.".

So does "open source" fall into the former (Unix, Vista) category of trademark violation, or the latter (fuel efficient, high quality, secure enough) category of weasel words?

I would hope the former.

The price of freedom is eternal litigation.

[ Reply to This | # ]

Missed requirement
Authored by: achates on Tuesday, July 17 2007 @ 03:27 PM EDT
I can't say I found the arguments in the note very convincing. As others have
noted, the term predated OSI, and OSI does not bother to put the TM bug on it,
which would suggest they don't claim any right to it. Also, the fact that they
did register an alternative term suggests they felt it was important to
distinguish (and that they did not have a sufficient claim on "open

I was curious, though, that the note brings up the policing requirement (unlike
copyright, you're supposed to make an active effort to detect misuse of your
trademarks). Why did PJ mention this in passing in discussing one case (to which
it didn't really seem to have any relevance) and fail to discuss why the lack of
OSI policing of the "open source" mark isn't also evidence that it
isn't/shouldn't be protectable?

[ Reply to This | # ]

There Isn't Any Limbo!
Authored by: iceworm on Tuesday, July 17 2007 @ 03:28 PM EDT

"SugarCRM is a bit in limbo"

It seems clear to me that SugarCRM has decided to exclude itself from the definition by adding the requirement for display of their logo, etc. Thus, there is no limbo!

[ Reply to This | # ]

"Owning" a Trademark - The SugarCRM et al License Debate
Authored by: iabervon on Tuesday, July 17 2007 @ 04:06 PM EDT
It's worth pointing out that the GPLv3 is not an OSI-approved license currently.
It would be somewhat surprising if it ended up getting rejected for some reason
that didn't convince the FSF to revise it acceptably. But, strictly speaking,
Samba is out of compliance at the moment, because it claims to be Open Source
but the license text it points to is not OSI-approved right now.

As for whether "Open Source" is a trademark, it may have acquired the
secondary meaning that the OSI proposed, but I don't think that it is associated
in people's minds with OSI as stewards in particular. That is, people think of
the Open Source Definition as what "Open Source" means, but I doubt
that many people (you yourself included, it seems) actually think of OSI and
their approval process or their judgments on whether licenses meet it. In this
sense, I think that "Open Source" is a lot more like
"chocolate" than "Hershey's", and the relevant area of law
is false advertizing rather than trademark.

[ Reply to This | # ]

The App of Attribution
Authored by: Anonymous on Tuesday, July 17 2007 @ 05:30 PM EDT

It's easy to imagine the following scenario:

  1. You buy an application.
  2. Get home and install it on your computer.
  3. The first screen shows up and there's a button called "start scrolling".
  4. Underneath the button start a host of labels for various parties whose code has been used by the App.
  5. You hit the button and watch as the screen slowly scrolls up. Slowly because you might want to click on one of the Logos to send your web browser to their home-page.
  6. Curious, you start counting.
  7. You're amazed when you get to 83 and the attribution list finally stops.
  8. You're at the main screen of the App. No more attribution.
  9. You select the "Query" button and a pop-up appears.
  10. At the top of the pop-up is a "start scrolling" button.
  11. You think... "you gotta be kidding me" as you hit the button.
  12. You sit back amazed as the list you just scrolled by, starts scrolling by again.
  13. You realise that there have been no scroll-bars on either of the two screens you've seen so far....
  14. Once the list is complete, you see the search functionality and feel a pang of dread about touching any button.

Here's a suggestion for those that insist on visible attribution. Change your requirements so it can show up in an appropriate area of the "Help -> About" section. If you insist on having your logo show up on every page. The more contributors there is to an App, the less useful the app is going to be.

It doesn't matter if the app is a full A.I. capability that duplicates Data on Star Trek, if you have to sit through a host of logos every time you start to do something, you're not going to accept the App.

Think of it this way: how many of you sit through the credits reading all of them at the end of a movie? Do you do so every time you re-watch that movie?

From my perspective, I only pay attention to the credits when I want a particular peice of info - like who played a particular character. Then I reference the credits for that peice and ignore all else. If they ever make DVDs such that I have to sit through the credits every time prior to watching a movie, I'll stop buying them. Considering the size of my library (some 900+ est. dvd's purchased over a span of 4 years), I doubt that industry wants me to stop buying.


[ Reply to This | # ]

SugarCRM isn't Open Source by traditional standards..
Authored by: Anonymous on Tuesday, July 17 2007 @ 07:04 PM EDT
SugarCRM isn't Open Source by the GNU or GPL standard. There are CRM packages based on Sugar source code that are much more functional than the "original" from which they were derived, but the Sugar license is a bit different. If the only requirement for Open Source designation was to make your source code publicly available, then we would certainly have a different perception of what Open Source is - regardless of the literal meaning of the term. I think that the issue OSI takes with Sugar is the fact that it is not Open Source in the traditional, or widely accepted understanding of what Open Source is. Microsoft released the code for it's msi api a few years ago to encourage developers to write windows applications. I don't know of anyone that would really consider this an Open Source move, but that is how MS announced it. I doubt that MS is using the Open Source version in their production code anyway. It's okay for the OSI to look out for folks by maintaining a very specific definition of what Open Source is. <tangent> In respect to trademark issues, I wrote a brief article about cybersquatting how trademarks are related. </tangent>

[ Reply to This | # ]

GPLv3 and attribution
Authored by: finchtwo on Tuesday, July 17 2007 @ 07:21 PM EDT
Perhaps they might be better off with the "permissions" section of GPLv3?
10. Additional Terms. The GPLv2 did not permit any modification of its terms which led to incompatibility with other FOSS licenses and potential problems in countries other than the United States where the wording of disclaimers and limitation of liability required to eliminate warranties and limit liability may differ from the United States. In Section 7, the GPLv3 permits limited modifications in these terms which will help solve these problems. In addition to making the GPLv3 compatible with the APL and permitting modified disclaimers of warranties and limitations, the provision permits adding limited attribution information (an approach which is being used by about twenty companies but using the Mozilla Public License as the basis) and various provisions to protect the use of trademarks and personal names.

[ Reply to This | # ]

OSI != Open Source
Authored by: Anonymous on Wednesday, July 18 2007 @ 03:16 AM EDT
If I create a license which reads "you're free to do anything you want with
the source-code", it won't be OSI-approved until I pay them to review the
license. Does that make the license any less "open source"?

[ Reply to This | # ]

The OSI website....
Authored by: Anonymous on Wednesday, July 18 2007 @ 03:39 AM EDT
...can be seen here.Link (note TM)

[ Reply to This | # ]

What percentage of the people are needed?
Authored by: Anonymous on Wednesday, July 18 2007 @ 08:01 AM EDT
You and I know about the OSI and who they are and what they do, but I only
learned about them recently. On the other hand, I have heard and used the term
"OPEN SOURCE" in describing computer software for a very long time,
and until just recently I had assumed it was a generic term.

How many people have to agree to the "secondary" meaning of the term
before it would be recognized by a court as a trade or service mark? If you
polled the majority of people in the IT industry about the term "OPEN
SOURCE", how many of them would say that it is a generic term and how many
would know about the OSI and relate the term to them?

[ Reply to This | # ]

Badgeware & Linking
Authored by: jjs on Wednesday, July 18 2007 @ 08:47 AM EDT
Several issues with these licenses, and many have discussed the advertising issues - although not the overlapping that may occur (what if you want to combine 2 code bases that BOTH say you must put a 64x64 icon at the bottom right corner of the screen?)

However, another big issue is most of these require LINKING back to the original source. This has two problems:

  1. What if the original source (Sugar, for example) goes out of business?
  2. What if you don't have internet connectivity (you're on a romote island, for example?
In both cases, that removes your ability to run the code - and violates the Open Source Definition of "No discrimination against fields of endeavor" and "No discrimination against Persons or Groups" as well as "Must be technology Neutral" (and also FSF Freedom 0 - freedom to run for any purpose)

Yes, this means these licenses restrict what YOU can do if you want to run them - even forbid you running them if you're not hooked to a network

In terms of those stating that OSI doesn't have a trademark - these companies are marketing to those looking at the results of Open Source - my suspicion is they know they are confusing the issue - and want that. They act like they want the benefits without following the rules (IMHO). Not that any company would EVER confuse things like this - it would be like pretending to be another company just because you changed your name to something similar ;).


(Note IANAL, I don't play one on TV, etc, consult a practicing attorney, etc, etc)

[ Reply to This | # ]

Is OSI good or evil?
Authored by: bradley13 on Wednesday, July 18 2007 @ 10:06 AM EDT
Whenever I see an organization like OSI, I am immediately overcome by cynicism.
OSI may have been founded by the best people for the best of reasons, a
few years, organizational rot (alternatively known as Pournelle's Iron Law of
Bureaucracy) will set in.

People want salaries. More people will be hired. Gotta make those house payments
- and big businesses are the only possible sponsors. In a very few years, the
organization will be "owned" by big business, and ideals take second
place to next year's budget.

Want an example? Look at W3C. They did superb work at first. For the last 10
years or so, their efforts have ranged from irrelevant to downright

In a nutshell: allowing OSI to acquire any sort of rights to the phrase
"open source" could be a really, really bad move...

[ Reply to This | # ]

Is Open Source a trademark? - "Owning" a Trademark - The SugarCRM et al License Debate
Authored by: Anonymous on Wednesday, July 18 2007 @ 11:50 AM EDT
To my mind open source has always refered to a model for developing and
distributing software and software source, as opposed to closed source or
propriatary. I understand the OSI has approved a number of licenses as open
source licenses. But I always thought that I could develop and distribute my
own software under a license that was open source, that is people could download
it, modify it and re-distribute it under some set of rules, and still not be
using an OSI approved license.

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U.S. Government definition of OSS is a summary of the OSI's
Authored by: Anonymous on Wednesday, July 18 2007 @ 01:56 PM EDT
U.S. policy memo M-04-16 says that "Open Source Software’s source code is widely available so it may be used, copied, modified, and redistributed. It is licensed with certain common restrictions, which generally differ from proprietary software. Frequently, the licenses require users who distribute Open Source Software, whether in its original form or as modified, to make the source code widely available. Subsequent licenses usually include the terms of the original license, thereby requiring wide availability."

Notice that it's NOT just "you can view the source".

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Took me a while
Authored by: GLJason on Wednesday, July 18 2007 @ 05:33 PM EDT

I had to read the articles to understand what 'trade mark' you were referring to. If you are referring to "Open Source" as a trademark, I must disagree if you think to say that the OSI has exclusive use of it under federal or common law. For one thing, the term "Open Source" has been around for over 20 years, the OSI wasn't formed until 1998. You cannot appropriate a term that has been used in the industry for your own "product", especially when the words are descriptive. That would be like McDonalds registering the trademark 'Apple Pie' for their own apple pies.

"Open Source" is a term used in the computer industry, but people do not generally associate it with the OSI, but with actual products such as Linux or BSD. This sounds more like they want to restrict the definition of a term, not associate it with their "products" (licenses?). I take open source to mean that source code is available, and that you can compile the product yourself and give the source code away.

Do people need to be reminded that the original BSD license, I would argue the foundation of 'Open Source", included an attribution clause? Would anyone say that BSD wasn't open source before that clause was removed?

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Strong case for generic nature of "open source"
Authored by: Anonymous on Thursday, July 19 2007 @ 09:41 PM EDT
1. Caldera was using the term "open source" well before OSI's purported invention of the term.

2. So were people on usenet (the following are approximately in reverse chronological order, and is a very incomplete list): example, example, example, example, example, example, example, example, example. Here's one as far back as 1995. And one going all the way back to 1990.

3. It's also worth considering the term "closed source". Most people seem to be using that as the opposite of "open source". While you might make a (weak, in my opinion) argument that when average people say "closed source", they are thinking "license that is approved by OSI", I think you'd have a hard time making even a weak argument that when they say "closed source" they mean "a license that is not approved by OSI", or that they would apply the term "closed source" to a license like the SugarCRM license. Generic usage is clearly that "closed source" and "open source" are opposite, which I think argues that "open source" is generally used for its generic meaning, just as "closed source" is. meaning.

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