Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Eminem Sues Audi Over Ad’s Use of “Lose Yourself”

First off today, rapper Eminem, through his publisher Eight Mile Style, has filed a cease-and-desist order in Germany against the auto manufacturer Audi, who used his song “Lose Yourself” in a recent commercial. The song was famously in a commercial for Chrysler here in the U.S., in an ad the debuted during the Super Bowl. The publisher has said that they will seek damages in this case. Further filings in this matter are expected.

2: Music and Film Industries Split Over Pirates

Next up today, in Australia the music industry has reversed a previous position calling for suspected pirates to be disconnected from the Web and has instead called for other measures to be taken that don’t include it. The music industry, though its local trade organization MIPI, has broken ranks from the film industry and its trade group, AFACT, which endorses such measures. The move comes after a UN report called the disconnecting of suspected file sharers a violation of human rights and said that laws in other nations would either have to be stricken or amended.

3: Joost de Valk Accuses WPMU DEV of Copyright Infringement, Sends Cease and Desist

Finally today, WordPress developer Joost de Valk has filed a cease and desist letter with James Farmer, the owner of WPMU.org, a WordPress development company, claiming that their WPMU DEV SEO WordPress plugin “copied large chunks of code” from his WordPress SEO plugin. According to the notice, and his blog post on the topic, de Valk does not take issue with the copying itself since his plugin is released under the GPL, but rather the stripping of his copyright headers. MPMU.org responded briefly calling it a “mistake” but after the reply caused controversy of its own the response was pulled down.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

Reese lays out many factors for this success, including that WordPress was built using PHP and Movable Type using PERL, which proved much more difficult for users to set up, better sales efforts by WordPress’ team and mistakes by Six Apart, the company that developed Movable Type, that accidentally poisoned the community.

However, Reese also points to another issue that, he feels, played a major role in WordPress, along with Automattic, gaining an upper hand: Licensing.

Specifically, Reese singles out the open source nature of WordPress and a licensing debacle in 2004 that confused many Movable Type users and turned them into WordPress users, most never to come back.

Indeed, the Movable Type/WordPress competition is a textbook example of why licensing matters and how good, clear licensing can strengthen your case where poor licensing can sink it.

For evidence of this, one just has to look at my history with the two applications.

My Story

Prior to 2005. I was a Movable Type user, having converted from Graymatter as it began to be abandoned. I loved Movable Type and, though I found the install to be tricky, once it was up and running it was great. A powerful tool that I expanded my use of, starting out with just one category of my site and then using it for every section.

Then, in 2004, the licensing debacle hit. Six Apart tried to create two versions or two licenses of Movable Type, a free one for amateur bloggers with limited needs and paid version that allowed for more blogs and more authors.

However, a lot of questions were raised by this. How did Six Apart define a blog? What is commercial use by their standards? And so forth. Though I was already very active in copyright (this was over a year before the launch of Plagiarism Today), I didn’t have a lot of the answers I needed.

It became clear that Movable Type was not a solid foundation for me moving forward. I didn’t abandon it immediately, but started dabbling with other systems, most notably WordPress, which were truly open source.

And WordPress was what I fell in love with. I loved the ease of installation, the reliability of use and how it seemed to naturally fit my particular needs. So, when I did decide to launch Plagiarism Today in 2005, I chose WordPress as the platform and it’s been the platform of choice for every site I’ve developed since – save one shopping cart site.

I tried WordPress for the licensing but stayed for all the other reasons Reese listed and, even though Melody is open source completely, I don’t think I’m likely to look back.

Why Licensing Matters

When you set up a copyright license you are essentially creating the rules for use. Whether it’s the content on your blog, an application you’re distributing or a song you’ve written, the license tells people what they can and can’t do with it.

The problem is that, if the terms of the license are confusing or if they are constantly changing, the people that try to follow the terms are going to be frustrated, worried and unsure. That makes people not want to use your work, even in the manners you intended.

The Movable Type vs. WordPress “war” wasn’t about “free” triumphing over “paid”. As Reese points out, Movable Type was just as “free” for nearly all users as WordPress is. Instead, it was a triumph of clear, easily understood licensing over ambiguous, changing terms.

This is why services like Creative Commons are so important. They lay out licensing terms in clear, easily understood language that gives people a sense of security and comfort in using the license.

More importantly though, this is why every content creator needs to think about the licensing terms and, most critically, how to avoid confusion and uncertainty.

The most important things with a license is that it be clear, consistent and fair. In 2004, Six Apart messed up the first two components (and some would argue all three) and it cost them dearly.

Bottom Line

Was licensing the only thing that helped put WordPress over the top? Definitely not. WordPress still had and has many advantages over Movable Type. But without that stampede of users in 2004, it most likely would have taken WordPress a lot longer to be come the top CMS and we would have a much more competitive ecosystem today.

Automattic’s dedication to the GPL is legendary, even going to bat against theme developers over it, this gives a lot of comfort to those who use it on their sites, comfort that it will be free, maintained and remain modifiable if needed.

Most people simply don’t have that level of confidence in Movable Type and Six Apart, especially after their recent buyout and that makes a lot of difference when trying to convince people to build their entire online presence with your product at its core.

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Google Censors Piracy-Related Terms from Search Tools

First off today, Google recently made one of its promised changes to appease copyright holders and has removed many bittorrent and piracy-related queries from autosuggest and its instant searches. Though you can still search for these terms and produce results, they will not appear as you type in the Google search box. Currently blocked terms include phrases such as “bittorrent” “torrent”, “rapidshare” and “utorrent”, many of which are the names of companies or products, as well as terms routinely associated with piracy searches.

2: Law to Shutdown P2P Sites Resurrected By Spanish Coalition

Next up today, Spain’s controversial file sharing law, which will make it easier for copyright holders to target and shut down websites they believe are built for the purpose of piracy, will be making another appearance before Spanish Parliament. The bill, on its first vote, was shot down by a narrow margine, hard on the heels of the Wikileaks revelation that the law was written under pressure from U.S. interests. The new bill does make some minor changes, such as increasing judicial oversight, but it is largely the same as the earlier bill, but it came about after months of negotiations from the various parties supporting the bill.

3: Oops: No copied Java code or weapons of mass destruction found in Android

Finally today, blogger Florian Mueller’s allegations that Google had illegally copied code from Java in making its Android operating system have been refuted by Ed Burnette, which showed that the code that was allegedly infringing was not actually shipped with the Android operating system and, instead, was used solely for testing purposes. Though there was an odd licensing mistake in one file, it is a far cry from Mueller’s original claim that this bolstered Oracle’s case against Google by finding more infringements than they had alleged in their ongoing lawsuit.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

Note: I will be discussing this further with Patrick O’Keefe on the Copyright 2.0 Show. You can listen to the live recording here at 6:30 PM ET Wednesday and catch the recorded version on this site Friday.

If you missed the dust up over WordPress, Thesis and the GPL last week, you were probably offline completely.

To make a long story short, WordPress, the popular blogging platform, is released under the GPL, an open source license that requires all derivative works to be licensed under the same terms.

However, Chris Pearson created a theme framework for WordPress called Thesis that he sells but does not license under the GPL. Many in the WordPress community, including Automattic founder and CEO Matt Mullenweg,says that this is a violation of the license themes are derivative works of WordPress. Pearson disagrees and the tiff ended with the two threatening to take matters into court.

The recent war of words took place on an audio call on Mixergy and was followed by a Twitter debate between the two. Now the entire WordPress community is debating the issue and, try as I might to stay out of it, I am constantly being barraged with questions.

So, very briefly, I want to talk about these issues and offer my rather scant thoughts on them. I don’t expect to bring any clarity to the issue (one of the reasons I’ve avoided it) but perhaps offer something nonetheless.

Seeing Both Sides

I won’t bother restating both sides of the argument. Mark Jaquith does a great job restating the WordPress/Automattic viewpoint and lawyer Michael Alex Wasylik covers the opposing view on his site. Furthermore, there may be a fair use issue involved in the creation of premium themes and a special code-copying problem for Thesis specifically to further muddy the waters.

What is clear is that the issue as to whether or not Thesis, or any WordPress theme for that matter, should be licensed under the GPL, upon distribution, is becoming much more complex. In 2009, I wrote about this topic for the Blog Herald and largely sided with the Software Freedom Law Center, which said that WordPress Themes are GPL protected but CSS files and images are not as they are separate from WordPress completely.

However, I am less certain about that today than I was a year ago (almost to the day). The reason isn’t because I feel the SFLC’s analysis was flawed but that there are many different potentially valid viewpoints on the issue, without a court weighing in, it is virtually impossible to predict the ruling one would see in such a case.

In short, you’re dealing with a derivative works issue, a notoriously muddy area of copyright to begin with, throwing in relatively new technology that is untested in the courts and raising in fair use arguments to create a near-perfect storm of copyright confusion.

Simply put, if Matt does go forward with his threat to sue Pearson over this issue, I do not envy any judge this case winds up in front of.

Why No One Wins

While there is a very legitimate legal issue at hand here, as Ryan Hellyer from WPTavern put it succinctly, “whether direct function calls are considered to cause a violation of the GPL license or not,” it seems that the battle lines are drawn less on legal grounds and more on philosophical ones.

This isn’t a surprise, open source and the GPL in particular are deeply philosophical things for many, part of a view on technology and even life that goes beyond software. It is widely seen that what Pearson is doing is an attack on that philosophy as much as it is an an attempt to exploit WordPress for his own gain. Pearson and his supporters view the actions of Mullenweg and his supporters as an attempt to tell him what he can do with his own code and how to run his business.

But while these philosophical issues are important, they are causing a tremendous divide in the WordPress community, especially among those who develop for it. Resources, time and energy are being spent on this debate and, if it continues, it will inevitably result in some talented developers leaving the community.

In short, this war is like all other wars in that, no matter who “wins” there are no “winners”. It may be necessary and, at this point, probably is but war rarely makes ill feelings go away and only causes the living to mourn the casualties.

Unless things die down and blow over, the WordPress community will never be the same and, unfortunately, not changed in good ways. However, we’re likely past that point already and, if this case does go to court, it will certainly be beyond the tipping point.

This makes me sad to say, but it is the truth.

Bottom Line

If one were to corner me and demand that I choose sides, which I know someone probably will, I would say I still feel the SFLC analysis is the best available. That being said, there is a great deal of legitimate uncertainty as to whether or not the calling functions constitutes a derivative work and a strong potential fair use argument that casts a shadow over that analysis.

In short, my most honest answer is “I don’t know” and I don’t believe anyone does. We’re all guessing here and legal minds I respect highly have come down on both sides of the issue. Until the courts have ruled (emphasis on “courts” as there will be appeals of any ruling) we really won’t know.

In the meantime, I think it is more important that this issue not rip apart the community and, instead, resolve this as amicably as possible while still working together toward common goals.

It may seem to be impossible, but I think it can be done and it has to be done.

Got any suggestions for the 3 Count. Let me know via Twitter @plagiarismtoday.

1: European Commission Welcomes Ratification of the WIPO Copyright Treaties

First off today the European Union (EU) has ratified the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty. Collectively, these treaties are known as the “Internet” treaties and have long formed the basis of copyright law in the EU.

Both of the treaties were negotiated and adopted in 1996 but in 2000 the EU decided to ratify them as a union, rather than as individual nations, a process that took almost a decade. The ratification, however, is largely just a formality as the contents of the treaties have already been worked into the laws of the member states and have been, for all intents and purposes, in effect for quite some time.

An announcement from the EU said that these treaties were codified to make copyright law “fit for the internet”.

2: How Serious Is Justin.tv About Fighting Live Broadcasting Piracy?

Next up today, representatives from Justin.tv will be testifying today before the House Judiciary Committee tomorrow over the future live sports broadcasting.

At issue for Justin.tv is the widespread misuse of its service to stream infringing content, including sports events, over the Web. Justin.tv has said it works with copyright holders to ensure that such misuse is kept to a minimum and maintains a strict DMCA policy but, as TechCrunch showed, nearly all of the most popular streams are, almost certainly, infringing.

Many are wondering if Justin.tv is as dedicated to fighting piracy as it says it is, and plans to testify about, and or if there is an error in its fingerprinting and identification process.

Either way, this will be a case to watch as it may have a major role in determining the future of online streaming services as they relate to copyright.

3: Best Buy, JVC, Samsung, More Hit With Lawsuit

Finally today the Software Freedom Law Center, which represents open source developers in obtaining license compliance, has filed suit against 14 electronics makers including JVC, Samsung and Best Buy. Claiming that they are in violation of the GPL license with some of their products.

At issue is a program called BusyBox, developed and released under the GPL by Erik Andersen, that often is run as an embedded application in many household electronic devices. The devices including, according to the lawsuit, BluRay players, cameras, routers and DVRs.

BusyBox is a program that integrates many common Unix utilities so that they can be easily integrated into smaller electronic devices. Though it is free to use, the GPL places requirements on those who distribute the code, including that they provide the source code and modifications for others to use in a similar manner.

The SFLC has resolved hundreds of GPL disputes but has typically been loathe to file suit, having filed only six companies since 2007 but having resolved hundreds of disputes.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

Got any suggestions for the 3 Count. Let me know via Twitter @plagiarismtoday.

1: Apple Confirms Acquisition of Music Site Lala

First off today, Apple has confirmed its acquisition of the music streaming service Lala for an undisclosed amount. This has lead many to speculate what Apple plans to do with the service and how it might integrate into their market-dominating iTunes platform.

Lala has had a brief but controversial history, starting as a CD-swapping service and then dabbling in online radio before becoming a music streaming service that also sold songs for ten cents. Lala would scan user’s hard drives for music and then build a library of their music for streaming online. However, after deciding profitability wasn’t likely, they approached Apple about an acquisition and, according to reports, sold the company for a loss.

Though it’s bad news for Lala shareholders, this merger could mean big things for the online music industry, including, as some theorize, a streaming version of iTunes and/or cloud storage of music files. There is little doubt we’ll be hearing more about this merger in the weeks/months to come.

2: IFPI Use IPRED To Demand File-Sharer Info For The First Time

Next up today, Sweden’s controversial IPRED law, which allows copyright holders to petition the courts to force ISPs to identify alleged infringers, is getting its first workout from the music industry. The International Federation of the Phonographic Industry (IFPI) has filed a petition in a Stockholm district court to receive the identity of a file sharer who was using a “direct connect” service.

The law, which came into force on April 1st, saw surprisingly little use from the record industry. However, in September, record industry officials hinted that they were just biding their time.

The law also increases the penalties for file sharing and criminalizes large-scale infringement, which makes the choice of a direct connect file sharer interesting as it is easier to prove large scale infringements on such services.

The IFPI has said they have not decided what they will do with the information when they receive it, saying they could go for a lawsuit or just issue a warning.

3: Lawsuit Alleges Palm Pre Violates Copyright

Finally today, cellphone maker Palm is facing a lawsuit over its Pre model, which was billed as an iPhone competitor, claiming that the Pre violates the GPL.

Artifex is claiming that Palm is using their PDF rendering engine, muPDF, without completing the requirements of the GPL license. Palm’s instructions for the phone do make a mention of muPDF and its license, but no source code is provided. In cases where the application is not licensed under the GPL, Artifex requires a commercial license.

Palm declined comment on this lawsuit but this is far from the first time a hardware maker has been sued for allegedly running afoul of the GPL. Linksys, which is owned by Cisco, faced a similar lawsuit earlier this year on similar grounds.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

Got any suggestions for the 3 Count. Let me know via Twitter @plagiarismtoday.

1: Judge: ‘HOPE’ Artist Can Switch Lawyers in AP Suit

First off today, Shepard Fairey, the much beleagured artist of the Obama “Hope” poster, found himself in court again yesterday. However, this time, he got some good news as he was allowed to change legal teams. His previous attorneys, headed by Anthony Falzone from the Stanford Center for Internet and Society, had asked to withdraw after it was discovered that Fairey had falsified evidence in the case.

Fairey, who is being sued by the Associated Press, after suing them first, is accused of violating the AP’s copyright in the creation of his now-famous poster. Fairey claims that his use is transformative and, thus, qualifies as a fair use. However, Fairey had originally claimed that he had used a different picture, one with George Clooney in it as well, something the AP disputed. However, Fairey pushed the issue, even after discovering he had made a mistake, going as far as to submit false evidence. After he admitted to doing this, his attorneys filed a petition to remove themselves from the case, which the AP opposed.

However, the judge sided with Fairey’s attorneys and he will now be represented by, among others, Geoffrey Stewart of the Jones Day law firm and William Fisher III. Stewart is also the director of the Berkman Center for Internet and Society at Harvard University.

The judge does not expect any delays in the case, seeking a trial by early summer, and the next hearing is scheduled for March 5.

2: Microsoft Pulls Windows 7 Download Tool

Next up today, Microsoft has once again earned the ire of open source advocates and has removed, at least temporarily a product it was offering at their request.

The application, a tool used to install Windows 7 on netbooks and other computers with a DVD drive, appears to have used source code from the open source application ImageMaster, without complying with the requirements of the GPL, including the disclosure of alterations to the source code. Microsoft has removed the product while it evaluates the situation and apologizes for any inconvenience.

Microsoft has had several run ins with the open source community, even as they have been more aggressive in courting them in recent years, including releasing several projects under open source licenses.

3: Man Presses $400 Billion Lawsuit Against Bon Jovi

Finally today, for those who like a little bit of weird news with their copyright diet, we have an appeal in the $400 billion (yes, billion, with a “b”) lawsuit against Bon Jovi.

According to the lawsuit, in 2004 Samuel Bartley Steele released a song entitled “(Man I Really) Love this Team,” as an ode to the Boston Red Sox. Copies were sent out to executives of the team as well as players and others involved with the team. Then, in 2007, during the playoffs, Bon Jovi released “I Love This Town”, which was used by MLB to promote baseball on television. According to Steele, the song is an infringement of his work but even his own musicologist testified they weren’t very similar. This caused the judge in the suit to toss it before it went to trial, saying that no reasonable jury would believe it to be an infringement.

However, Steele has now appealed the ruling, letting the lawsuit live for another day. That is, at least until the appeal gets shot down…

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

1: Parties Seek Google Books Hearing Delay; New Deal Brewing

First off today, in an ominous sign for the current Google Book Search deal, all of the involved parties are seeking and postponement on the upcoming Oct. 7 hearing so they can discuss and retool the agreement to better placate concerns about it.

The settlement, which would allow Google to scan and display in-copyright but out-of-print books on their site, has been blasted by critics including several nations, many major companies and even the Copyright Office. However, it appears that the recent objections by the Department of Justice may be the one that did the current deal in, pushing the parties back to the negotiating table.

The hearing, which would have been part of the process to formally approve the settlement, which was initially approved in 2008, may still go on but will likely be postponed as both sides have agreed to delay it so they can address issues raised by the DOJ and other groups.

2: Who Created Spider-Man?

Next up today, we have an update on the Jack Kirby copyright case. As recently reported. the heirs of Jack Kirby, who famously teamed up with Stan Lee to create some of Marvel Comic’s best-known characters, have filed a notice stating that they are seeking the return of Kirby’s copyright, something the law allows after 56 years of publication.

It appears that the heirs have added Spider-Man to their list of properties they are hoping to have returned. The problem, however, is that there is a great deal of controversy as to exactly what Kirby’s role in creating Spider-Man was, if any.

Though Spider-Man was a Stan Lee work, it appears that artist Steve Ditko was Lee’s partner in this one, not Kirby. Though Kirby did apparently propose many things for Spider-Man, it appears none, or almost none, were incorporated into the printed story.

Odds are this will be a case for the courts to decide, likely becoming a similar mess to the Superman drama going on right now with the heirs of his creator.

3: Paris Court of Appeals condemns Edu4 for violating the GNU General Public License

Finally today, The GNU General Public License has been upheld in a French court ruling. The case involved the company Edu4, which distributed copies of the remote desktop application VNC, which is GPL licensed, to its customers but did not provide the source code and also removed copyright notices, two violations of the license.

What makes the lawsuit unique is that it wasn’t one of the copyright holders that filed suit, but one of the customers. French education association AFPA, filed the suit to force compliance. They won their case, creating a very important test case for the GPL license moving forward.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.

For one, tt was recorded live in front of the conference and we were able to take questions from the audience.

However, more importantly, in addition to the usual hosts, Charles Stricklin and myself, we were joined by Matt Mullenweg, CEO of Automattic, Mark Jaquith from B5Media, and Mark Ghosh of Weblog Tools Collection.

It was a very busy episode for us as WordPress 2.5 had just been released the day before, the formal announcement happening during Matt’s keynote at WordCamp, so there was a great deal to discuss and hash out.

Best of all, this episode has video, embedded below, so you can watch us make sense of all things WordPress.

What do the following have in common: Ubuntu, Firefox, OpenOffice.org, WordPress and osCommerce.

The answer is that, in addition to all being open source projects, they are also all trademarks, registered and protected.

Of course, in recent years, trademarks have become very pervasive. Even Digg, which licenses all user-posted content into the public domain, adamantly protects its trademark, shutting down sites that have similar names.

While there is nothing wrong with having and protecting a trademark, it is a good business move, what is different is that, traditionally, only enterprise open source projects such as Red Hat have taken advantage of trademark protection. Community projects rarely, if ever, applied for or enforced trademarks. Though using another open source’s project name was considered bad form, as with the Firebird/Firefox mix up, legal protection was rarely sought after or necessary.

However, the injection of trademark into the open source movement is a sign of a larger trend when it comes to intellectual property. A sign that copyrights and patents may be losing some of their prominence while trademark, their often-forgotten brother, may be stepping into the light for his time to shine.

Background

According to Harvard Law School, a trademark is “a word, symbol, or phrase, used to identify a particular manufacturer or seller’s products and distinguish them from the products of another.”

Unlike copyright, trademark is not designed to prevent copying or public display, but rather, confusion in the marketplace. The standard for trademark infringement is simply “likelihood of confusion” and that is determined on a set of variables including.

1. the strength of the mark
2. the proximity of the goods
3. the similarity of the marks
4. evidence of actual confusion
5. the similarity of marketing channels used
6. the degree of caution exercised by the typical purchaser
7. the defendant’s intent

In short, you can not use a trademark in a way that is likely to cause confusion as to the source of the product or service. Delta Faucets and Delta Airlines can coexist because they are two very different fields but if one attempts to found another computer company named Apple, they will likely find themselves in a courtroom very quickly.

Also unlike copyright, trademarks have to be defended in order to remain valid. Registering for a copyright means defending it actively. This is why Mozilla has a robust trademark policy and you can not use WordPress in a domain name without approval.

This trend toward stronger trademark protection, however, is bound to affect open source and the Web in general.

Impacting Open Source

A trademark is, fundamentally, an intellectual property right. Having a trademark gives you protections over an intangible creation the same as a copyright gives you protections over creative expressions and patents over inventions.

Since all intellectual property law is interconnected, it is inevitable that a greater push in one area will impact others. Since open source and other copyleft projects eschew many of their copyright protections, trademark becomes a way to retain control over their work when, otherwise, they would have almost none.

For example, under the terms of the GNU General Public License, I would be perfectly free to take the Firefox code and create my own browser based upon it, so long as the new browser was licensed under the same terms. However, with Mozilla’s trademark policy, I could not call this new browser “PT Mozilla” or “Jonathan’s Firefox”. Even non-official builds of Firefox itself have to carry different names and icons to avoid trademark infringement.

This means that any new browser I create would require a whole new name, whole new marketing and a whole new brand. Though some have been successful at doing just that, most notably Flock with Firefox and gOS with Ubunutu, the vast majority are not. The uphill battle is just too great and the mother project usually just absorbs any worthwhile code from the lesser-known fork.

What this results in is that most of there is no incentive to fork off new versions of a product as the chance of success if very low. Once a project has gotten established, reached a point where it warrants a trademark and has burned itself into the public mind, it can almost prevent competition. There will be no “Firefox +” or “WordPress Lite” without permission from their owners.

Perhaps even worse is that, should the company behind the mark close down, it takes up to five years before the mark is available again for public use. That is, of course, assuming that the trademark isn’t simply sold and another company, perhaps one with less interest in the product.

Though rampant forking has been one of the biggest problems with open source technology, trademark law is prone to many of the same abuses and problems as both copyright and patent. Relying on trademark to make open source profitable and sustainable may open it up to many of the same problems as a reliance on other intellectual property.

This isn’t to say it shouldn’t be done or that it is a bad idea, just that every business plan has risks, especially new ones.

Trademark As a Business Model

What we’ve seen over the past few years is the rise of trademark as a business model. You create, or have your users create, large amounts of copyrightable content, give the content away for free, often giving up many rights to the work and then leverage your brand name to make money.

It’s a system that has been used repeatedly with a great deal of success on the Web. Many sites, including this one, have followed that principle and made it work.

Open source projects have begun to use it as well. You can get a free WordPress blog on any number of sites, but most still choose to get one from WordPress.com. The strong brand name and reputation make it an preferred choice. That type of preference, generally, comes from a combination of a good product, successful marketing and diligent trademark enforcement.

Indeed, without trademark protection and enforcement, it is unlikely that many open source companies would have a business model at all. If anyone could make and distribute their own Firefox browser, we’d have little reason to go to Mozilla and download their version, complete with Google links that put money into the foundation.

While this can be said about many businesses, traditional, open source or otherwise, it can’t be denied that open source companies, along with millions of Web sites, are more dependent on trademark than most companies were 20 years ago. With the digital age copyright has slipped in importance while trademark protection has grown.

This isn’t to say that copyright does not have an important role (otherwise this would be the swan song for this site) but that role is more geared toward enforcing the trademark, registered or unregistered. Copyright, as a business model, is no longer a matter of simply targeting illegal copying (unless your organization ends in AA) but in protecting your corporate identity by targeting plagiarists, spammers and those try to sell works commercially.

In a few decades, trademark may replace copyright as a cornerstone of intellectual property, that is, if it hasn’t done so already.

Conclusions

Copyright is not going anywhere. It is going to remain an important intellectual property right for a very long time to come. However, the role it plays is shifting and how it relates to other forms of intellectual property, especially when looked at from a purely practical standpoint, is going to change.

Personally, I am glad that these companies and their products have registered and enforced trademarks. It means that they are taken more seriously as businesses, helps them focus their community’s energy and, I feel, has improved the quality of the products. The same can also be said for most Web sites and content producers that have gone down this path.

When Creative Commons protects its trademark, you know things can not be too bad.

The one request that I would make is that those in the open source and copyleft movement show more understanding for those who do choose to strictly enforce their copyrights. I may often disagree with their decisions, but it is their choice. Not only is copyright necessary for the GPL, Creative Commons and other open source licenses to be valid and enforceable, but many of the stars in the industry are making their living off of another intellectual property right, namely trademark. Sadly, most of the criticisms hurled at copyright enforcement can be said about trademark just as easily.

Intellectual property isn’t the enemy, it is how it is used. Any law, including trademark, copyright and patent can be abused. What is important is that we are responsible citizens. Those without good business models will die off soon enough. Those who find the right balance will thrive.

In the end, that will determine who is right and who is wrong. The law of the jungle has always been more vicious than the law of the land.