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"Open Source" indefensible"Open Source" indefensiblePosted Jun 28, 2007 5:19 UTC (Thu) by ncm (subscriber, #165)Parent article: Defending "open source"
Exactly this sort of a abuse was implicit in the choice of the name, and in the politics of its originators. They wanted a name that could not be imputed to imply freedom, and they found one, and promoted it. Why should anybody be surprised that somebody chose to take advantage of their deliberate choice?
Any court would agree that distributing readable source code along with your product makes it "open", by a very defensible definition: if it "breaks", you are equipped to fix it. In the old days consumer electronics always came with a schematic diagram, along with a list of patents covering the design. That reassured buyers that they could get their purchases repaired at the local shop, making the design "open", even though competitors were barred from reproducing it.
Any attempt to defend the term "open source" is doomed. We would be much better off choosing new name that is both more directly meaningful and symbolic of our goals and of the license terms we demand. Probably "Software Libre" would be more usable now than in the last millennium, and is both impervious to to misinterpretation, and eminently trademark-able. If it frightens some die-hard proprietarists, maybe that's good. They should be frightened, because they're about to be crushed. The people we're trying to reach aren't frightened any more.
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"Open Source" indefensible Posted Jun 28, 2007 7:47 UTC (Thu) by bronson (subscriber, #4806) [Link] CentricCRM includes "schematics" (source code) with their product. If it breaks, those schematics allow me to fix it myself or hire a software repairman to fix it for me. I am not allowed to distribute CentricCRM, however, just like I can't legally use Zenith's schematics to start distributing knock-offs of one of their designs.
So, while it may be considered good behavior in the hardware world, I think we can agree that this is insufficient when it comes to software.
Unfortunately, I have to agree with your last point: the OSI has done an exceedingly poor job of defining open source in public (I'm one of the few people who have actually read "The Open Source Definition"). Given the huge number of people who interpret it differently, I'm afraid the term "open source" will go the same way as "open systems" did in the 90s... perverted by greedy companies into irrelevance.
"Open Source" indefensible Posted Jun 28, 2007 8:10 UTC (Thu) by ncm (subscriber, #165) [Link] "however, I am not allowed to distribute CentricCRM ... this is insufficient when it comes to software.""We" can agree, but no court would. In particular, Centric are not engaging in misrepresentation in calling their software "open", unlike (e.g.) someone advertising "free beer" but charging for it. They would not be able to justify calling it Software Libre, though, if "we" (probably SPI) were to register for a trademark on the term. That registration event would also be an ideal opportunity to prune drastically the set of licenses that qualify for the term.
"Open Source" indefensible Posted Jun 28, 2007 17:43 UTC (Thu) by bronson (subscriber, #4806) [Link] I agree. Now we just need to come up with a new and catchy term that everybody can agree on.
Knowing the community, I'm not optimistic! :-)
"Open Source" indefensible: OSI aims and methods in conflict Posted Jun 28, 2007 11:28 UTC (Thu) by copsewood (subscriber, #199) [Link] I agree. There is a fundamental mismatch between the stated aim of OSI and their current methods. The stated aim of OSI is promoting software that meets a restatement of the FSF definitions of free software but in a business friendly manner (i.e. by avoiding ethical and political issues). But OSI getting themselves in a tangle concerning trademark registration of the term they wish to promote, and finding this term unenforceable is not businesslike. OSI, on belatedly discovering this, now turn to ethical persuasion, complaining that alleged misuse of the term "open source" is unethical and requesting community support. But requesting an ethically and community-based political campaign defeats the distinctiveness of the open source concept as a ethically neutral and politics-free promotional tool in the first place.
I therefore think this is time for a rethink about terms and definitions, and to consider whether or not the "open-source" term is worth the cost of trying to defend it. Those who would ask us to consider doing so should not imagine the value of the time and effort they are suggesting should be taken up by this project within the free software community in responding to their request for community pressure to be brought to bear adversely against alleged misusers of the "open source" term, to be free as in beer.
Taking out a trademark on a new term which captures the ethical and the business advantages of the FSF free software definitions could be a better way forward. So perhaps it is time to ditch "open source" in favour of the term "software libre" for this purpose. Once this is trademarked and the trademark held by an organisation in good standing, we then have the opportunity to promote this as something new, combining the sense of freedom with the practical and commercial benefits relating to a term that can be applied to FSF definition conforming products, and which can be legally enforced against fakes.
"Open Source" indefensible? Hardly. Posted Jun 28, 2007 16:29 UTC (Thu) by rickmoen (subscriber, #6943) [Link] Nathan, you know that I esteem you highly, but I have to question much of your logic, here. The fact that the word "open" by itself has a long history of being abused to the point of being functionally meaningless (e.g., in the 1970s/80s standards wars among proprietary Unix companies) in no way dictates "open source" being doomed to meaninglessness in the software context -- any more than the inherent vagueness of the term "record" dooms the related term "phonograph record" to meaninglessness. Any attempt to defend the term "open source" is doomed. You state this, but don't even attempt to say why. I find this odd. Moreover, in my experience, it's been simply not so, over a period of many years. Consider, in fact, CentricCRM. In the past few days, aware of the burgeoning PR problem they've set themselves up for, they've tasked a public relations firm with arranging briefings of reporters with executive vice-president Michael Harvey about how, despite recent controversy, they're genuine open source players because their product "Centric Team Elements v. 0.9" is being released under OSL 3.0. Now, that's really good news, despite a bit of sleight-of-hand in the short run. The latter is because Centric Team Elements isn't (yet?) the firm's flagship product -- Centric CRM 4.1 is, and it remains under a highly proprietary (no redistribution) licence, a licence that continues to be deceptively portrayed on the company's Web site as "open source". This is good news anyway, because (1) it shows that the firm is aware of, and sensitive to, the PR debacle they've created for themselves, and (2) they seem to be at least starting to fix it. (Maybe they're intending to phase this apparently new product in, as the replacement flagship product.) My point is that, even in this most egregiously cheeky of violation cases, the term "open source" is proving to be defensible. You say it can't be; I say it already is, and has been all along. Rick Moen
"Open Source" indefensible? Hardly. Posted Jun 28, 2007 19:48 UTC (Thu) by ncm (subscriber, #165) [Link] You state this, but don't even attempt to say why.We all know the trademark registration attempt failed. I already explained why a business has no reason to fear being accused of misrepresentation for using the term in ways the OSI hasn't blessed. Therefore, it is not just "open" that is vague the point of meaningless: "open source" has been delared officially indefensible, legally. It may be, as you suggest, that Centric has reason to want to maintain good relations with the Free Software community and with defenders of the "open source" non-trademark, and can be expected to come around. That is not true of hundreds of other, similar vendors. Once one or a few companies with no need for good relations with us begin "mis"-using the term in their business communications, there will be nothing to stop the rest. They will say, correctly, that their customers are happy with their implementation of their definition. Once a few other vendors do, Microsoft may happily join in, announcing that their "Shared Source" scheme qualifies for the term too. At the time "open source" was coined, many business people were afraid of Free Software. Nowadays, MS takes out double-page ads claiming that their software is as fast, as reliable, or as secure, as ours. There's no need for us to mince around any more. We have all seen what happened to "open systems": everybody bemoaned the dilution of the term, but nothing could (legally) be done about it, and community approbation had no ultimate effect. The sooner we leave the "open source" swamp for firmer ground, the better it will be for Free Software, and (should it catch) for "Software Libre(TM)". The writing is on the wall. The only question is, will we wait until the damage has been done and try to react, or will we act now to prevent the damage?
"Open Source" indefensible? Hardly. Posted Jun 28, 2007 21:23 UTC (Thu) by rickmoen (subscriber, #6943) [Link] Nathan wrote:I already explained why a business has no reason to fear being accused of misrepresentation for using the term in ways the OSI hasn't blessed. With respect: No, you did not. You said the founders' omission of an explicit goal of freedom made it inevitable that abusers would try to misappropriate the term. I'm not sure I agree on any such causal connection -- but even if one agrees that abusers will be motivated to try, that doesn't establish that they will succeed (that they were "have no reason to fear being accused of misrepresentation"). Moreover, as I've pointed out and cited one of many possible examples to illustrate my case, facts on the ground confirm that they do fear being accused of misrepresentation: Over time, they find that the PR drawbacks tend to outweigh any gains with customers. (I certainly cannot say that such will always be true. However, the longer we of the software using public insist on the word's real meaning, the more squirrely people who violate that understanding will look to fair observers.) Once one or a few companies with no need for good relations with us begin "mis"-using the term in their business communications, there will be nothing to stop the rest. With respect: No. If that were the case, it would have happened years ago. You act like this is somehow a new problem: It's not. We've been through cycles of businesses infringing and retreating on this matter, repeatedly, for most of the past nine years. Even the "badgeware" ("Exhibit B") Web 2.0/ASP firms are gradually backing down and are either switching to genuine open source (Alfresco and Compiere) or are making impressive efforts to change their substantive licence terms to reasonably accomodate licence critics from the community (MuleSource, Medsphere). At the time "open source" was coined, many business people were afraid of Free Software. Nowadays, MS takes out double-page ads claiming that their software is as fast, as reliable, or as secure, as ours. There's no need for us to mince around any more. Clearly you (still) don't like the term "open source", and I respect that. But your arguments against it being defensible simply don't make logical sense. We have all seen what happened to "open systems": Yes, we did. But the question is, which one of us remembers that historical episode more clearly? The way I remember it, "open systems" was never more than a vague marketing term approximating the concept of binary interoperability and published protocol standards. Nobody (let alone an industry-neutral foundation like OSI) established it ab initio as a formally defined concept with a standard of identity; it was in essence nothing more than brochureware ammunition for the consortia wars between various proprietary Unix companies. It started out meaning almost nothing; it ended up exactly the same. If you don't see the difference, I think you need to look a little closer. Rick Moen
"Open Source" indefensible. Posted Jun 28, 2007 22:47 UTC (Thu) by ncm (subscriber, #165) [Link] Vendors' use of "open source" to describe their proprietary software is not misappropriation, in any sense. They cannot misappropriate a term that is in the public domain, so they have no need to "try"; they just use it. Since the term is legally undefined, claiming their products qualify for it is not misrepresentation. It's just ordinary business buzzword BS. Accusations of "misappropriation" or "misrepresentation" amount to no more than bluster.I think Rick is confusing, here, legal consequences with (hoped-for) P.R. consequences. Many vendors have no reason to fear any such P.R. consequences, and many actually stand to benefit from them. (One may present any number of examples of companies that do care without contradicting the previous statement.) Some vendors even game the P.R., first claiming to offer "open source", then defying OSI criticism, and then "coming to an agreement" with OSI, getting free publicity each time, all with no fear of commercial or legal consequences. OSI will always be on the defensive with "open source", because of its nonexistent legal position, and always readily gamed.
"Open Source" indefensible? Still no. Posted Jun 29, 2007 1:42 UTC (Fri) by rickmoen (subscriber, #6943) [Link] Nathan wrote:Vendors' use of "open source" to describe their proprietary software is not misappropriation, in any sense. Again, with respect: No. Absolutely false. OSI has an overwhelmingly clear moral and historical claim to being continuously the custodian of the definition of "open source" in the software context, ever since having invented and promoted that concept and (very explicit) definition. (To repeat a point I made on another recent LWN feedback, once on OSI license-discuss, a detail-freak attempted through Herculean research efforts to challenge the latter fact using the then newly restored DejaNews^WGoogle Groups archive. He eventually found, if memory serves, exactly two brief, one-off coinages of the term that arguably, maybe, briefly anticipated OSI's by a small margin -- but those persons never went anywhere with their arguable brushes against the concept, while OSI has continuously promoted and carefully defined it formally, and made it famous.) Attempting to recast this discussion into terms of what vendors can get away with legally completely misses the point. I'm really very surprised I have to point this out, especially since I've said it before on LWN, very recently -- and doubt greatly that any legitimate controversy can be said to exist. I think Rick is confusing, here, legal consequences with (hoped-for) P.R. consequences. No, sir, I most certainly am not, and I cannot fathom why you would think so. Many vendors have no reason to fear any such P.R. consequences.... Nine years of experience in this area, so far, have failed to support your assertion. Again, I have already pointed this out, supra. OSI will always be on the defensive with "open source".... If you will please carefully read my explanation to "smoogen" of some of the legal realities of trademark registration (see in particular point #2 and the link to the page on trademark law at Harvard Law), you will realise that any attempt to register trademark based on a general concept rather than a defined brand identity is going to be resisted by USPTO and probably rejected because it will be classified as a "descriptive" mark without the required "secondary meanings" needed for that sub-category. But, more fundamentally, your implicit assumption that a concept that cannot be enforced through lawsuits for trademark violation is hopeless -- is plainly incorrect. Again, I point to the long (nine-year) history of exactly the opposite occurring, concerning "open source" Some vendors even game the P.R.... Maybe -- but all of the incidents I've seen (and I think I've seen pretty much all of them) strike me as having the flavour of stepwise improvisation following initial inadvertancy. Rick Moen
"Open Source" indefensible? Still no. Posted Jun 29, 2007 1:57 UTC (Fri) by JoeBuck (subscriber, #2330) [Link] Besides, there's another issue that goes beyond trademark law: fraud.If a term is widely interpreted as meaning one thing, and a product is sold using the term to mean something completely different, it's false advertising, whether or not the term is trademarked.
"Open Source" indefensible. Posted Jun 29, 2007 2:52 UTC (Fri) by ncm (subscriber, #165) [Link] "Accusations of "misappropriation" or "misrepresentation" amount to no more than bluster.Likewise, "fraud", same reason.
"Open Source" perfectly defensible Posted Jul 10, 2007 14:17 UTC (Tue) by pdundas (guest, #15203) [Link] Accusations of misrepresentation and fraud, if well founded, are certainly not mere bluster. The criminal law and advertising regulators in various jurisdictions are certainly be able to take an interest, if a company seems to be making untrue claims about their products.And if the term "Open Source" has a clear and generally accepted (within the trade) meaning - and I believe it does - then unfounded claims to be "Open Source" do amount to fraud or false advertising, and can have legal consequences. The fact that the term could not be trademarked because it was "descriptive" is no indication that the descriptive meaning is not clear or generally accepted.
"Open Source" indefensible? Posted Jun 29, 2007 18:17 UTC (Fri) by giraffedata (subscriber, #1954) [Link] "open source" has been delared officially indefensible, legally. It looks like you're referring to the USPTO's refusal to register it as a trademark. But that's very different, largely opposite, of saying you can't stop anyone for using the term for anything. That says you can't arbitrarily stop someone from calling a product "open source," but you can certainly stop someone for using it in a way inconsistent with the common meaning of the term. Refusing trademark registration implies the term has a common meaning. Various laws other than trademark control advertising a product as something it isn't. So that leaves the question of what the common meaning of "open source" is, which I won't comment on because my point is just that the USPTO's refusal doesn't make the term indefensible.
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