Open Source&#174 ... not now, never was

Here's a summary of the gory details.

• February 24, 1998, Software in the Public Interest (SPI) applied to the U.S. Patent and Trademark Office (USPTO) to register the term Open Source as a certification mark (a specific form of trademark). This means that SPI, if successful, would have complete control over who could legally use the term Open Source to describe their software. SPI could license the term for a fee if they chose, or could shift the definition of the term on a whim.
• The USPTO issued an "office action," or a request for clarification, on September 17, 1998. SPI was given six months to amend the application to be more specific about what it was asking to certify, and to provide examples.
• No response was received by the USPTO by March 17, 1999, and thus the application is officially considered to be abandoned. Any attempt to reopen the issue will need to start from scratch.

The public was told by the USPTO about the abandonment a few weeks ago. Yet SPI, which should know more than anyone else about what's going on, continues to assert (at least up until early June, when this piece was written) that the term Open Source is a registered trademark of SPI.

That claim is patently false, pardon the pun, and always has been. The term has never been a registered trademark, and it's no longer even pending registration.

Open Sores?
The discovery that there is no such thing as a trademark on the term open source is exteremly welcomed in my neck of the woods. I've been avoiding the term religiously for fear of running afoul of the SPI's language lords. (Having been raised in Quebec, where there are still police making sure that you use enough French, maybe I'm more sensitive than most to court regulation of language.)

But I still marvel any time people in the free software community, who are otherwise fighting against conventional concepts of intellectual property, try to claim such property for themselves.

I could see the point of trademarking the term "Linux." After all, William R. Della Croce, Jr. tried in 1995 to claim the name for himself and extort money from companies working with Linux. But trademarking the term open source just made no sense at all, especially in hindsight given all the juvenile games fought in its honor.

The coining of the term open source by Eric Raymond was a brilliant act, defining the movement just at the time it was starting to mature. Better still, it eliminated any confusion stemming from the English-language ambiguity of the word "free," which is split in other languages into multiple words (such as the French "libre" and "gratuit").

Having to explain the term "free software" in the context of "free speech" (as opposed to "free beer") became tiring in the early days of Linux. (Actually, it's still tiring.) Invention of the term open source, simple yet descriptive, solved all that -- or so we thought.

Then Raymond and friends went and undid all that brilliance overnight, by running to the USPTO to claim ownership.

Raymond, through Bruce Perens, first bequeathed the term to SPI, which also does high-level management for the Debian Linux project. The plan was that SPI, which was incorporated, would legally own the trademark and Raymond would administer and enforce its use. So it was SPI that actually tried to register open source.

Then Raymond and Perens went to help form the Open Source Initiative (OSI) in November 1998, and claimed that the trademark went with them. The SPI disagreed, responding with a call for public consultation that happens to include a fairly good history of this whole soap opera. The OSI homepage, while stating that Open Source is a registered trademark that OSI "manages," never explicitly acknowledges who owns the term.

Indeed, their assumption that someone actually owns the term at all is (and always has been) highly unfounded.

Free software lingo
You'd think that a bunch of people as obsessed with liberty as our various open source protectors are would know better than this. Folks who value freedom usually don't like having self-appointed nannies dictating what's good for them. And most people in the Linux-using world are intelligent enough to make up their own minds about whether a given piece of software is sufficiently open for their needs.

Certainly, if these non-profit groups have money, they have better uses for it than to legally protect a term that should be (and, in the end, thankfully is) part of the common lingo. Besides, trademarks with real value don't just bounce between owners at the inventor's whim.

I also find it fascinating that neither SPI nor OSI would talk about the issue despite repeated attempts to contact them. Both are media-hungry groups that usually salivate at getting publicity, but apparently not this time -- or this kind of publicity.

I'm still slightly annoyed by the pompous name of the SPI, Software in the Public Interest. Groups that feel the need to claim they're working in the public interest usually aren't. It's like a country whose name begins with the words "people's republic." However, SPI is doing a crucial service for the community through its maintenance of Debian -- it's a necessary foil to the increasing commercial involvement in Linux.

In this little sordid story, SPI did the right thing in throwing its hands up in disgust and asking for the public's advice. If taking that advice meant that it abandoned the legal fight to claim ownership, so much the better.

So this tale has a happy ending. The term open source is now as free as the software it describes. Actually, it's always been free, but at least the attempt to kidnap it has failed. And that news most certainly is in the public interest.

Does the name game bother you? Let us know in the ZDNet Linux Forum. Or write to Evan directly at evan@starnix.com.

Evan Leibovitch has been working with Unix and Linux on PC systems for more than a dozen years. He's a partner in Starnix Inc., a Linux-centric integrator based in Brampton, Ontario. He has been heavily involved in user groups, both as a former director of UniForum Canada and as a current director of the Canadian Linux Users' Exchange. When not around computers, Evan enjoys cooking, writing, and annoying his children.