Category: Open source

Ian Betteridge provides me an opportunity to clarify what I meant in my post on Why BarCamp is a Community Mark.

In strewing together patents, copyright and trademark, I created what he refers to as a specious argument, which, after having looked it up, means that it sounds good on the surface to the point of making sense but ultimately is wrong. Given the structure of my argument and how he interpreted what I said, I would actually agree with him.

But that’s because I was commenting on the need to reexamine all US intellectual property laws in light of the recent “Web 2.0” brouhaha, and in particular, trademark, since copyright is essentially debunked with Creative Commons and patents, well, they’re a whole different can of fish.

Let me rephrase my argument thus: Trademarks do not stifle innovation (unlike copyright and patents). They do, instead, inhibit distributed ownership of a mark or symbol, and when it comes to an idea that a community strongly connects with or takes at least partial ownership, trying to wrest it out of the hands of that community will result in the kind of tantrum we witnessed recently.

Have you ever taken a pacifier away from a contently suckling 2-year-old? Exactly.

(And I offer that metaphor not as a commentary on the behavior of anyone but to give you an idea of the attachment one might form with something it identifies as its own, even if, clearly, it’s the property of the parent who purchased it).

So, if we’re to move into a productive discourse about this area of IP, let’s, shall we?

Ian poses two questions to me in his post:

1. Can anyone 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?

To the first, I’d argue that that’s not really my point, at least in terms of stifling innovation, nor the reason why trademark must be considered.

He does combine the notion of “[damaging] the interests of consumers”, but I don’t think that’s actually the argument I’m making either. In fact, I’m more interested in the plight of Tim O’Reilly — and what he might have done differently — besides sending out the C&D letter — to protect or enforce his organization’s mark. Let me be clear: it’s important that people receive due credit for the work that they do and the ideas that they generate (and, to counter Mr Douglas’ suggestion, I have always called myself a co-organizer of the first BarCamp — pfffbttt). This is a tenant of open source chivalry and at the cornerstone of a meritocratic system.

Trademark law was designed to stop people from using a mark in unsanctioned ways — and requires obvious enforcement efforts in order to sanctify your ownership of that mark: fail to protect it, you lose your legal protections.

So what the whole idea of a Community Mark is to proactively look at this situation — at the impossibility and huge expense of trademark enforcement on the web — and find some balanced approach whereby the cost of enforcement is thrust upon those who use the term most and belong to the original creative community. I don’t think that anyone would argue that the O’Reilly camp didn’t help advance the Web 2.0 concept and phrase — just like Adaptive Path-man JJG pushed forward the term AJAX for technologies that had been in use on the web forever. The difference, as it played out last week, was that the legal department at CMP decided to try to enforce their legal protections, and got biatch-slapped because the community felt betrayed (well, in particular, Tom Raftery). His response could have easily been predicted, as it was a human one, and ended up with everyone feeling a bit indignant about how the witchhunt gathered force so quickly in the absense of an official “Tim” response (just like the response to Cheney’s shotgun wedding after 24 hours of silence).

A Community Mark is a pragmatic reconsideration of the kind of laws that were written long before we had the internet and instant forms of mass communication. And just like the Dean campaign or the Spread Firefox NYTimes campaign, time and time again it’s been shown that if you rely on your community in real ways, and give them influence of your destiny, they will come out to support you — and most notably — protect you.