Fri, 16 Sep 2005

I’m not a huge fan of our trademark policy, though I believe it is better than not having one (just barely) and I don’t have a better one to offer right now. I’ve been meaning to write an essay to condense and explain what features I find seriously problematic in our current policy, and highlight potential alternatives, but especially with the new job looming I may not get time to finish the essay. In the mean time, here is a (slightly edited) sketch of the major topic of the essay that I sent to a private list which is currently discussing the problem.

‘you’ here is generally other free software groups who might be considering seeking legal advice on a trademark policy.

I’m writing excessively on this topic because I do want people on this list who are considering talking to their lawyers about trademark to understand some of the assumptions that drive traditional trademark policies, so that they can take them into account when talking to their lawyers. Sketchy outlines of the key ones, scavenged from the bones of an unfinished essay, scavenged from the bones of a bloated and dead research paper: [IANAL, etc., etc.]

* TM law is completely based on the assumption that the ‘source’ of a product to which a mark refers is a cathedral which exercises control over quality, not a bazaar which disclaims many forms of control (though not all- the right to fork and fold back in forks are extremely powerful forms of control). Sadly, as far as I’ve been able to find US trademark case law has no notion of a bazaar-like source, though a good trademark lawyer should be able to discuss the case law of remanufactured golfballs and spark plugs with you, and whether or not your organization might be well positioned to boldly forge exciting case law where none has been forged before :) [If one thinks that cathedrals are a feature and bazaars are a bug, stop reading me now and go copy Moz’s trademark policy verbatim; it is most excellent for a cathedral.]

* TM law is based partially on the notion that high barriers to entry protect brand coherence and hence protect customers, and so they are good, usually the higher the barrier the better. This directly contradicts our collective experience in copyleft, where extremely low barriers to entry create all kinds of useful contributions that would not have happened with high barriers to entry. Mind you, there isn’t necessarily much the lawyer can do to craft a trademark policy with a low barrier to entry, because of the consumer focus of TM law, though you should push for that as much as possible, and might enquire about collective marks or certification marks as options with potentially lower barriers to entry for your communities.

* TM law and lawyers tend to assume that all creativity and activity around a mark should be centralized; i.e., that if someone is modifying or redistributing your mark without your very explicit permission and control, it is detrimental to you and more importantly to your customers. Again, this is a difficult problem to resolve because our entire legal framework treats unsupervised modifications of a mark as a sign that the mark owner has lost control, instead of a sign that the mark ‘owner’ is a vibrant, thriving, creative community creating more value around the brand and hence around the product. Within that constraint, any policy you construct should seek to allow easy remixing and rebroadcast of your community’s brand by your community as much as humanly and legally possible.

* related to the previous point, the law assumes that there is one entity that ‘owns’ the mark and is in charge. In some cases, of course, this is true- eclipse and moz, for example, are completely constructs of the driving forces behind their foundations, and would not exist otherwise. For many of us, though, the foundations are something tacked onto existing, thriving communities after the fact. The communities, in this case, are the true moral owners of the mark (as implied by their collective ownership of the code and their control of the means of production of the code which makes the community interesting), but by necessity, the foundation presents to the PTO a legal fiction of ownership and control, and then turns around to the same community and says ‘by the way, to say you are part of us, you now have to ask the foundation’s permission.’ Again, this is in many ways required by the legal superstructure we’re under, but probably worth asking about ways to mitigate the impact of this as much as possible, and giving the community lots and lots of explanation about why you’re doing it and as much background as possible as to when and how you will or won’t turn a blind eye.

Now, unfortunately, I don’t have good, explicit things to tell your lawyers to do to resolve these issues in ways that work for us- so far GNOME has not found the magic recipe. It is my hope that by sharing some of my observations, the next wave of you will go out to your lawyers, discuss these issues, and maybe one of them will be the one that breaks the impasse and frames the question in a way that gives us a useful tool to wield against these limitations.

Sort of rambles, but you should see the essay and the research paper, and they weren’t written at 2am. Anyway, g’night…