I’ve been watching the debate about O’Reilly’s enforcement of its “Web 2.0” service mark with mild amusement. It’s the old world being pistol-whipped by the new. Again. And ironically (…or not, depending on how much you know), it’s the O’Reilly camp on the receiving end. Again.
Look, I’ve said it before, and I’ll probably have to keep saying it again and again, but once you go open, you can never go back. Nor is there a half-way point down the rabbit hole.
If you benefit from open source, you give back to it. You play by its rules, not ones that you dictate. Period. If you don’t, the system self-corrects and kicks your ass. (Oh, and I hope that Microsoft is listening, because if it’s just playing nice while Mr Ozzie is on top for now, it’s inching ever-closer to the biggest bitch-slap of its storied existence).
Anyway.
Here’s what I have to say, because Cory let me down and Marc is one of the fews folks making much “Policy & Law 2.0” sense about this whole thing.
Trademark, copyright and patents are the DRM of genius. They lock down possibilities and in effect, shut down imagination and inspiration. Unsanctioned and unlicensed, that is. On Marc’s blog, Ian Betteridge writes:
Trademarks laws are designed to protect consumers, not to ensure a revenue stream for companies. They’re designed so that no one can make crappy vacuum cleaners and call them “Hoover” (except, Hoover themselves, of course 🙂 ), thus fooling you out of money and incidentally protecting the company from damage to its reputation.
This is the correct interpretation of trademark law as it was intended in 1876. Yeah, that’s right, 130 years ago.
Now while many laws that’ve been on the books for a while now still apply and make sense, things have changed and as evidenced by our country’s leadership, not all laws make as much sense anymore.
Intellectual property protections at one time served to protect the consumer, the little guy, the entrepreneur. That was back when the feedback loop that corrected fraudulent activities was slow, tedious and often ended with a dual in the middle of main street. With patents being filed en masse by folks like Texas Instruments (who will likely never use or enforce the majority of their portfolio), with copyright being used to stifle creativity and expression and trademarks being applied to community-protected language and ideas, it’s clear that the original uses and purposes of these legal concepts are not only under scrutiny, but may have finally become the last ditch effort large power-mongering corporations with major budgets to go after the smaller, more nimble independents that they were designed to protect.
. . .
Now, when I originally made my case for Community Marks, it was in response to two frustrating experiences that I’d had working on SpreadSpread campaigns for Mozilla and Creative Commons, two bastions of open intellectual product. In both cases, ownership of their trademarks stymied their desire to allow their communities to assume ownership — and enforcement — of their identifying symbols (aka logos and wordmarks), and in effect, squashed nascent community-based efforts to do the work of more costly PR firms.
The Community Mark was a prediction of the kind of ongoing community tarring happening to O’Reilly. This is, after all, what happens when you try to take away the language or symbols by which a community identifies itself and serves as a warning for what could happen to Mozilla if they stepped up and stopped community projects from cropping up. Or what would happen if anyone tries to trademark BarCamp or use it for purposes that the community does not sanction or endorse.
And that’s why, without any other necessary action than merely calling it one, BarCamp has been and will continue to be, a Community Mark. The BarCamp community is a far better mechanism for detecting fraud and shutting it down than any obnoxiously-expensive legal department. And when you’re dealing with an environment as large as the web, what other choice do you have? You can’t possibly register your trademark in every single web-touching, worldwide jurisdiction (as Tom points out). And yeah, go ahead, tell me that I’m naive and that’s not how business works and blah blah blah ok-you’re-boring-me because you’ll end up in exactly the same shoes that O’Reilly/CMP/cha cha cha chimichanga enchilada find themselves in today.
I mean, honestly, wouldn’t you rather have the enormous power of the community on your side than not? Ok then, case closed.
Factory Joe 
Right on brother – I’m there with you.
See yah at BarCamp – SF with APIs in hand.
The irony of watching O’Reilly being mowed down by the cluetrain while pursuing an oh-so-1.0 stategy is very discouraging.
Cory posted a well-written piece, where he makes some good points, and tries very hard to walk a strait line… but he can’t do it with all that Foo Camp Kool-Aid on-board! His fan-boy intoxication (and perhaps conflicts-of-interest) were really showing. I was very disappointed. Sounds like he just talked to John B or someone, heard it was “all settled” and incorrectly reported that, without checking. When he posted, most people following the story were aware that the issue had not been “resolved amicablyâ€? and permission had not yet been “grantedâ€? as Cory incorrectly reported.
It’s a shame O’reilly’s corporate culture isn’t robust enough to guide them through a more reasonable course of action when Daddy’s gone. The C&D letter was an unfortunate, and perhaps understandable as a mistake. However, O’Reilly’s rude, clumsy, and ham-fisted response, shocked us all, as it seemed to contradict the basic principles of Web 2.0. This leaves many of us wondering if these people have any real clue about what it is they are hyping.
Tim’s back, and apparently not ready yet to come close to reversing course.
Hopefully we’ll see some good come from all this. It was a great demonstration of the RISKS involved in sending C&D letters. Web 2.0 has now been exposed as an empty buzz-mark, and has likely been tarnished beyond repair.
While I largely agree with you on both copyright and patent law, I disagree with you on trademarks – and I don’t see a coherent argument in your post. You claim that my description of trademark law was accurate 130 years ago, and then support your claim with examples about patents and copyright.
So I’ll ask two questions:
1. Can you give an example where trademark law – NOT patents or copyright – has been used to stifle innovation or damage the interests of consumers (and no, the O’Reilly spat can’t be used – the facts of the case aren’t exactly clear, especially if you read Tim O’Reilly’s response).
2. If trademark law was removed from the statute books tomorrow, what would be the consequences?
Chris I’m hearing you mate! Regarding having a community on your side, I blogged on a similar concept last week in my Power to the… community post – totally along the same lines. Here’s the crux of it:
“Would-be copiers know launching a competing product or service will be at the mercy of community members witnessing the conception of the original idea. Original ideas remain the property of the originator, and it becomes a lot harder to ’steal’ ideas from an originator when you’re up against a loyal and passionate community.
The benefits of community backing are priceless. What does your business have; a passionate community or a much less valuable customer base?”
Preach it dude, I’m with you…