Ubuntu developers: Benjamin Mako Hill: Open Brands | Linux ...

In late July, the Awesome Foundations invited me to participate in
an interesting conversation about open brands at their
conference. Awesome is a young collection of organizations
struggling with the idea of if, and how, they want to try to control
who gets call themselves Awesome. I was asked to talk about how the
free software community approaches the issue.

Guidance from free software is surprisingly unclear. I have watched
and participated in struggles over issues of branding in every
successful free software project I?ve worked in. Many years ago, Greg
Pomerantz and I wrote a draft trademark policy for the Debian
distribution over a couple beers. Over the last year, I?ve been
working with Debian Project Leader Stefano Zacchiroli and lawyers
at the Software Freedom Law Center to help draft a trademark policy
for the Debian project.

Through that process, I?ve come up with three principles which I think
lead to more clear discussion about whether a free culture or free
software should register a trademark and, if they do, how they should
think about licensing it. I?ve listed those principles below in order
of importance.

1. We want people to use our brands. Conversation about trademarks
seem to turn into an exercise in imagining all the horrible ways in
which a brand might be misused. This is silly and wrong. It is worth
being extremely clear on this point: Our problem is not that people
will misuse our brands. Our problem is that not enough people will use
them at all. The most important goal of a trademark policy
should be to make legitimate use possible and easy.

We want people to make t-shirts with our logos. We want people to
write books about our products. We want people to create user groups
and hold conferences. We want people to use, talk about, and promote
our projects both commercially and non-commercially.

Trademarks will limit the diffusion of our brand and, in that way,
will hurt our projects. Sometimes, after carefully considering these
drawbacks, we think the trade-off is worth making. And sometimes it
is. However, projects are generally overly risk averse and, as a
result, almost always err on the side of too much control. I am
confident that free software and free culture projects? desire to
control their brands has done more damage than all brand misuse put
together.

2. We want our projects to be able to evolve. The creation of a
trademark puts legal power to control a brand in the hands of an
individual, firm, or a non-profit. Although it might not seem like
such a big deal, this power is, fundamentally, the ability to
determine what a project is and is not. By doing this, it creates a
single point of failure and a new position of authority and, in that
process, limits projects? ability to shift and grow organically over
time.

I?ve heard that in US politics, there is no trademark for the terms
Republican or Democrat and that you do not need permission to
create an organization that claims to be part of either party. And
that does not mean that everybody is confused. Through social and
organizational structures, it is clear who is in, who is out, and who
is on the fringes.

More importantly, this structure allows for new branches and groups
outside of the orthodoxy to grow and develop on the margins. Both
parties have been around since the nineteenth century, have swapped
places on the political spectrum on a large number of issues, and have
played host to major internal ideological disagreements. Almost any
organization should aspire to such longevity, internal debate, and
flexibility.

3. We should not confuse our communities. Although they are often
abused, trademarks are fundamentally pro-consumer. The point of
legally protected brands is to help consumers from being
confused as the source of a product or service. Users might
love software from the Debian project, or might hate it, but it?s nice
for them to be able to know that they?re getting ?Debian Quality? when
they download a distribution.

Of course, legally protected trademarks aren?t the only way to ensure
this. Domains names, internal policies, and laws against fraud and
misrepresentation all serve this purpose as well. The Open Source
Initiative applied for a trademark on the term open source and
had their application rejected. The lack of a registered trademark
has not kept folks from policing use of the term. Folks try to call
their stuff ?open source? when it is not and are kept in line by a
macommunity of folks who know better.

And since lawyers are rarely involved, it is hardly clear that a
registered trademark would help in the vast majority of these these
situations. It is also the case that most free software/culture
organizations lack the money, lawyers, or time, to enforce trademarks
in any case. Keeping your communities of users and developers clear on
what is, and what isn?t, your product and your project is deeply
important. But how we choose to do this is something we should
never take for granted.

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Source: http://www.linux-support.com/cms/ubuntu-developers-benjamin-mako-hill-open-brands/

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