Why would an organization dedicated to open source and free-sharing endorse copyrights, trademarks, or patenting something? Aren’t these legal processes in direct opposition to open source? Isn’t the point to open source sharing to specifically not patent, trademark, or copyright anything? The answer is “no” and this page explains why with the following sections:
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Oz Czersk: Lawyer Specializing in Trademark and Copyright Law
We have a page each that describes exactly what copyrights, trademarks, and patenting are and exactly how each relate to open source and our specific open source goals. The following images link to these pages:
The widespread use of open source resources is a relatively new development. The open source community, not surprisingly, is disenchanted with the current legal system’s structure and as such has created alternatives to satisfy various gaps in need. The Creative Commons is a great example of one of these alternatives that we use and support because it provides a level of legal protection for keeping open source creations like ours open source.
However, even while recent developments and innovations in this sector are highly advantageous, it is still prudent to understand, and when appropriate use, traditional legal methodology to protect organizations and make sure they can continue to meet their open source goals. The reason why is because these traditional methodologies work better to support open source creations (just like any other creations) because they:
In short, if you find yourself in court with an organization or individual attempting to limit the open source nature of something you’ve created, it is still the traditional laws that will hold the most weight in court and this page explains in detail why and what to do about that.
Firstly, let us say that any kind of system is not without its flaws, including the current judicial system. It can be manipulated and twisted to suit someone’s goals. What is important to realize is that any system can, but systems that have been around longer have less ambiguity and many more examples to support honorable intent.
Registering a copyright with the US Copyright office takes no more than 15-20 minutes online and only costs $50. In most cases, the copyright is still valid even if the creation is significantly changed and added to later on. For only $50, an organization or individual can put the most time-tested and broadly accepted aspects of legal protection to work as insurance that an open source creation remains open source and used for non-profit purposes.
Because they are so time-tested and broadly accepted, existing copyright, trademarking, and patenting laws are extremely powerful legal tools. Using both, traditional legal methods and combining them with new open source protections, ensures the strongest possible outcome; that outcome being the free, widespread, and equal use of open source creations.
In essence, you have more than one option in your arsenal when confronted by this dragon. Some legal principles have developed over decades, if not centuries, and do not disappear because of some new digital innovation that was created in just the last decade or so. Being able to positively use to your advantage what is most time-tested and recognized by the current legal system is something that should be considered, even if you are someone who is frustrated because you see these same copyrights, trademarks, and patents being used negatively as legal leverages against you and/or the open source movement itself.
The above example is for copyright, now let’s talk about trademarking. Trademark protects the use of a product, service, or organization’s name. Things like Gmail, Open Office, and Red Hat, Inc. are trademarked and registered with the US Patent and Trademark Office and are all open source. The philosophy being that you are not restricting anyone from using the open source service or product; rather, you are restricting someone from misappropriating the company, service, or product’s name. For instance, if anyone could use Gmail or Red Hat on any product, then it would be much easier for nefarious individuals to install malicious software on computers.
The purpose of trademark isn’t to restrict use of something. It is to protect the public by making sure a recognizable name cannot be misused. There are instances where counterfeit medication is sold to unsuspecting individuals that has ended up being ground up dust from a rock quarry. While counterfeit high-end clothing has, at times, ended up funding the Italian mafia. Certainly, these are extreme and rare cases, but if an individual is unable to protect his or her own name, it ultimately hurts the public.
The main thing to return to and realize is this: If ever in a dispute with an established organization, a huge organization like Monsanto or Microsoft for instance, they will use traditional legal methods to satisfy their goals because it is much more advantageous to them.
With copyrights, trademarks, and patents, an open source creator can speak with them in terms and a language they already understand while using legal tools and precedent they are more easily bound by. All while still using newer alternative tools as well.
Most open source creations follow the creative commons license of which there are a number. Generally, though, they allow for non-commercial uses of the open-source creation. There are, however, aspects of the creative commons that could easily open an organization up to a legal battle if someone wished to begin one.
Here are a few:
The term “non-commercial” may seem self-explanatory; however, it is actually quite vague.
How does one define commercial use anyways? One explanation could be that if it is being used to generate revenue, such as being in a product or service for sale, then it is obviously a commercial use. This is a given. But, what if instead of being used to generate revenue it is instead used to save money? What if it is a kind of software that makes interoffice email operate far more efficiently than anything else that currently exists. It could have been designed to be used by schools or small governments instead of Microsoft Outlook, saving low-budget entities a great deal of money that could be spent elsewhere to help local communities. But what if a large for-profit corporation decides to use it for their own private use as well? They are not selling it in any way but instead are using it to save tens of millions of dollars each year, passing those savings on in the form of increased profits to their shareholders instead of their employees? Would this qualify as a commercial use?
This leads me to the next point:
Where is the line between commercial and non-commercial? There can be two main schools of thought on where the so-called line is:
a) Use by someone explicitly for profit vs use where profit is not the goal.
A potential problem with this is that many endeavors in business end up failing, despite the fact that they were explicitly for profit. So then, is it an after-the-fact determination? If you lose money using something that is open-source, is it okay despite the fact you were trying to make money? If your answer is no, that it is the intent that is important, then what about the inverse? What if someone ends up making money using something that is open-source through sheer happenstance and luck? What if that someone ends up becoming a billionaire by creating a completely open-source version of something that just happens to become popular? Say a website that ends up being immensely popular that uses open-source software and server architecture. What if that person ends up posting a minimal amount of advertising on the site simply to cover up various costs fully expecting they will not even come close to breaking even but ends up making an extremely large amount of money?
Should we then turn around and punish that person for something that was completely out of their control by saying they violated the terms of the creative commons license by ending up a commercial success?
Maybe, maybe not. That is the entire point of having different kinds of licenses for different kinds of uses is to anticipate these kinds of things happening.
This ties into the other school of thought:
b) Use by a for-profit entity vs use by a non-profit entity.
Would the type of person/entity using the open source creation then restrict the use of the license to begin with? What if it’s a non-profit corporation? Seemingly, any non-profit corporation would never use something for commercial purposes. However, in the US, nonprofit corporations are only required to spend 5% of their income for “charitable and administrative” purposes. That means 95% can be used for essentially whatever the non-profit chooses. The majority of non-profit corporations spend a mere pittance on their actual stated goals and missions (cancer research, urban development, equality campaigns) and instead use whatever income, which is tax free, to perpetuate their own organizations.
The thought process behind this is that 5% is the ideal amount of money to ensure a non-profit’s perpetual existence. If it can operate while still serving the community indefinitely then overall it will serve its goals and the community in the best way possible. For instance, if Goodwill is allowed to make a profit, and then spend 5% of its profit directly to help a community, then it can expand and open locations in other communities, thus helping even more people. However, this argument tends to break down once you look at how the majority of non-profits operate.
Note: 100% of One Community donations goes to charitable and administrative purposes.
The National Football League, for instance, was a non-profit corporation from 1942 until 2015 and in 2014 it generated an income of $100 million, while claiming to end up posting a loss, even though, as a whole, professional football generated about $9.8 billion that same year. Granted, each NFL team is a completely separate entity from the League (The NFL hires the referees and disciplinary administration while it is the teams that hire the players and collect the revenues. The NFL then collects money from each of the teams to fund its operations.). However, it is hard to imagine the League will not continue to function year in and year out as it has before.
Surely, everyone can agree that a school is a non-profit entity. But what about large, private colleges such as Harvard University, which has a current net worth of $34.6 billion? Should Harvard, which can clearly afford the email software example used above, be held to the same standard as an inner city community college?
Don’t forget that every single Political Action Committee (PAC) and political campaign operates as a nonprofit. Bruce Springsteen’s music was used by more than one Republican presidential candidate and he successfully told them to stop using his music in their campaigns. If his music were open source, there would be absolutely no violation of terms and thus no grounds for him to require them to stop. Although, one could argue they probably would anyways since they would not want to get into a dispute with anyone over something as trivial as use of music.
What about churches, temples, mosques, or other religious groups? Surely, they would all get a free pass. But what if a particular religious group’s philosophy were morally reprehensible to an individual or group?
These reasons are just some of the many for why an open source organization may wish to claim ownership of intellectual property. From the very beginning you are able to decide how it will be used. If something is open source and follows the creative commons license anybody will be able to use it, which is a double-edged sword. It would be difficult to argue a revocation of license that guarantees free use for everyone and what’s more, according to the license they would be required to give you credit, which might lead to people believing you are endorsing their use or various views.
a) Arbitrations are not one-way win or the other, but usually a compromise.
Generally, in intellectual property (“IP”) cases, such as those dealing with open-source creations (such as copyright and patent), there are clear winners and losers. Either there is infringement or there isn’t and one side gets awarded some damages, depending on the egregiousness and extent of the infringement, while the other has to pay. This is not the case with many arbitration outcomes. Generally, they follow a less harsh penalty system with a single arbitrator or panel of arbitrators deciding on an outcome based on a totality of informal evidence. While this may be advantageous to a smaller defendant, this may not be the case for a smaller plaintiff. The circumstances being correct, what a plaintiff would get from an arbitration hearing against a Monsanto-sized corporation would pale in comparison to what they would get against that same corporation in a court case.
The court system is set up to make a plaintiff whole, meaning they can only recover the amount of money they need to put them in the situation they were before the infringement, but there are certain times when Congress has stepped in and made laws to not only punish blatant disregard for laws and human common sense but also to serve as a warning against future wrong-doers. An instance of that would be statutory damages in copyright. Statutory damages exist because art is a very unpredictable thing. What one person would pay for a painting of dogs playing cards could be dramatically different from another. That is why, to dissuade future wrong-doers, Congress enacted a part of the Copyright Statute to allow for anywhere from $30,000 – $150,000 in damages per instance of infringement. This is why individuals were found to be liable of millions of dollars worth of copyright infringement when recording companies sued them for illegally downloading songs back in the late 90’s/early 2000’s.
On the one hand, yes, it can be abusive; but on the other hand, it also protects smaller artists as well. It gives new artists the opportunity to protect their works, live off of their art, make more art, and then enrich the public’s lives by introducing new ideas and topics into culture that may not necessarily be discussed. Think of cultural revolutions that rock and roll sparked in the 50’s, hip-hop sparked in the 80’s and 90’s, and film and television is starting to spark today (i.e. shows like “Transparent,” or films like “Selma”).
Going back to the original point, statutory damages are not available at all in arbitration, thus there is no mechanism to punish a truly egregious violation of a license or serve as a message to future wrong-doers.
b) Arbitrations, since they are not court cases, follow NO rules of law, including evidence or legal precedent.
Arbitration derives from the French/Latin term “arbitraire” meaning depending one’s will or pleasure. It has the same root as arbitrary. Meaning that the outcome is largely dependent on the individual arbitrator or panel of arbitrators with sometimes no weight given to legal precedent. Eye witness testimony, verifiable documents, and the like may not even make it into the hearing.
Further, in very egregious cases, such as civil rights, employment, or housing disputes, plaintiffs may be eligible to get their attorney’s fees completely covered by the defendants, which does not happen at all in arbitration.
Arbitration rulings are generally confidential. This means that it is difficult to ascertain their actual outcomes, what was said, what the actual issues were, how those issues were discussed or argued, what kinds of evidence were offered, how that evidence was weighed, and what logic was used to decide the eventual outcome. This offers a number of problems since although many arbitrators are retired judges, if that particular person is inexperienced or just plain ignorant of the particular field or subject matter of the issue it is wildly unlikely the decision will be accurate, appropriate, or just.
One does have the ability to appeal an arbitration and get into the actual court system, but this pretty much defeats the entire purpose of the hearing in the first place, the savings in time and money essentially being wiped out.
But, the largest problem with arbitrations is that they set up no legal precedent.
Whenever you hear a lawyer speak of or cite a case they are essentially saying, “This happened before in this previous case, which may not be the exact same circumstances, but it is enough to get that same outcome.” Think of Brown v. Board of Education or Roe v. Wade or the Supreme Court decision legalizing gay marriage throughout the United States.
These cases are important because they effectively change the law and make history and can be used almost like a magic spell in a court-room. “This violates Brown v. Board of Education,” or “No, Ms. Davis, you actually HAVE to issue me a marriage license now. That is why you were in Azkaban last week.”
Currently, there aren’t that many open source creation cases. This is really a newer trend in intellectual property and so it is difficult to determine many things such as “What is commercial use” or “At what point exactly is an open source license violated.”
Like most legal structures, copyright law has examples where it has provided tremendous value and examples where it has been abused. To aid in understanding (and because it is interesting), here are a couple examples:
Campbell v Acuff Rose is a seminal copyright case that illustrates a really good example of transformative use in the fair use context. The band 2 Live Crew released a popular song called “Oh Pretty Woman” that sampled from Roy Orbison’s “Pretty Woman,” as many hip hop songs did and still currently do. 2 Live Crew’s manager asked for a license from the owners of Orbison’s work to use in a parody but was denied. Later the song was sampled and released as a parody and sold a quarter of a million copies. Orbison’s people sued for infringement and the case made it up to the Supreme Court, which ruled that it wasn’t infringement since it indeed was a parody, looking at a number of factors, including the effect the 2 Live Crew song would have on the market of the original song. The basis of the Supreme Court’s argument, among other things, was that people that listen to 2 Live Crew most likely do not also listen to Roy Orbison since they are two completely different genres of music from two completely different decades appealing to two completely different type of people. Taken in the totality of the circumstances of the case and the fact that 2 Live Crew’s version of the song is really more or less making fun of the original while also making a commentary on the dating/sexual habits of individuals at the time and comparing them to those of when the original song came out the use of Orbison’s song is not infringement. The two eventually settled on an undisclosed licensing fee since the Supreme Court remanded the case down to the Appellate level.
This case is important since it really fleshed a large portion of copyright law that at the time was uncertain. This case is still used today as a template for copyright defense in media all the time.
So, a review site like Yelp or Angie’s List will most likely have a system in place to comply with these rules so they can skirt the liability of one of their users. Sending a take-down notice to an automated system is a very quick, cheap, and easy way to eliminate negative reviews that you don’t want to be seen. Eventually, though, people caught on and suits were brought against Medical Justice and even the Federal Trade Commission stepped in to halt this practice. As of now, Medical Justice no longer offers those particular contracts to doctors.
This example shows the power copyright has in the digital landscape and how combining it with fine print can prove to be quite abusive.
Here are a couple examples of trademark law providing value versus being abused too.
Monty Python is a comedic acting troupe from England who have created various films, stage productions, and TV shows. One such show was called “Monty Python’s Flying Circus,” which ran in the UK for a number of years before making it over to the United States. The US broadcaster of “Flying Circus,” feeling that many sketches were either too bizarre or risque for American audiences, edited the sketches before they were broadcast. The show ended up doing very lackluster and the troupe sued once they discovered the heavy edits to their show.
In Europe there is a subset of artist’s rights called Moral Rights that did not exist at all at the time in the US (and only exist to a very limited degree now). The main protections of Moral Rights are the right to attribution and the right against mutilation (i.e. changing or damaging a work, outside of transformative use). Monty Python could not sue using Moral Rights since it did not exist in the US at the time, so they sued under trademark law, claiming that by editing their shows the US broadcaster diminished the value of their brand, meaning that people would think they are not as funny or creative as they truly are, and that it would confuse consumers as to the quality or origin of their future work.
Monty Python eventually won in the Supreme Court, paving a way for artists to enforce rights they otherwise would not have and eventually forcing Congress to codify very limited Moral Rights provisions into existing law.
An excellent example of trademark abuse is a guy who claimed he owned the word “stealth.” Leo Stoller (who is at the time of writing this in jail for bankruptcy fraud) trademarked the world “stealth” in the 80’s and essentially ran a business suing companies and individuals whenever he came across that word in one of their products or services. He filed for the use of the word across a number of different industries and products (for use in sporting goods, t-shirts, air conditioners, etc) and eventually appeared in court over 60 times in the course of about 6 or 7 years. He even sued Northrup Grumman, the manufacturer of the B2 stealth bomber, which is most likely the most famous use of the word. They came to an out of court settlement, Northrop agreeing not to use the word in products such as video games or remote control airplanes, while Stoller agreed he would not sue the company for use in any aerospace or military products even though Stoller could never show he ever used stealth in those industries.
This is an example of not only abuse but just plain being wrong about trademark law. Registering a mark does not give you the exclusive rights to it. You only own your mark in the particular product in the particular industry you use it for as long as the use takes place. And you actually have to show use of that mark (i.e. you have to show that you’re actually providing, selling, or doing something). For instance, there is Delta Faucets, Delta Airlines, and Delta delivery (a parcel delivery service like UPS or FedEx). Registering the word Delta does not give any of the above companies exclusive rights in the word Delta, much like registering the word stealth never gave Stoller exclusive rights in that word. He claimed he used stealth in t-shirts in a company he owned, but that company had stopped selling shirts a number of years prior to that particular case. Out of the 60 times his cases made it to court he lost or settled out of court every time. But, it is currently estimated that on average only about 5% of disputes ever make it court, the rest settling out of court before any suit is ever filed. Which means that on average there may have been over 1000 instances of Stoller essentially extorting money from individuals who did not have the money to mount a defense, did not have the time or patience to deal with him, or simply may not have known any better.
Here are some additional resources that you may find helpful:
If you haven’t already, please also visit each of our pages that describe exactly what copyrights, trademarks, and patenting are and how they can be used to specifically support open source goals. The following images link to each of these pages:
One of One Community’s top 3 values is open source creation. It is our dedication to creating everything we do as open source that has led us down the path of understanding and endorsing copyrights, trademarks, and patenting as the path to truly preserving intellectual property in the public domain. Hopefully this page helps people understand why while also providing value and understanding for those not interested in copyrights, trademarks, and patenting for their specific works.
CLICK HERE IF YOU HAVE A QUESTION YOU THINK SHOULD BE ADDED TO THIS SECTION
Q: I have questions and would like more information on copyrights, trademarks, and patenting in relation to open source. Where would I find this?
The following images link to each of these pages:
Q: What has One Community copyrighted, trademarked, and/or patented?
As of now, we’ve applied for copyright protection of our logo and trademarking of the following terms:
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