In defence of Red Hat (sort of) and trademarks



Is Red Hat Acting Like Microsoft? was the question posed by eWeek this, er, week, in relation to this blog, accusing Red Hat of distinctly Redmond-like behaviour. Specifically, Red Hat sent a cease and desist letter about the use of a trademark to a Mr Bill Dudney whose company is offering training courses on Hibernate, a Red Hat-owned JBoss product. Mr Neward concludes,

Folks, RedHat has officially moved into the "Big Corporate Entity Seeking Profit At Any Expense" category. So much for the Open-Source-Can-Really-Make-Money-Too-We-Swear poster child, if you ask me...

After appearing in the trade press, Mr Neward has gone futher, claiming that the issue isn't about the use of trademarks (which he sporadically confuses with copyrights and "IP issues", whatever they are), but that the use of the trademark "Hibernate" appears to denote a relationship with RedHat - which sounds like the use of a trademark to me.

Trademarks have really had a bad press recently. Naomi Klein's influential No Logo made trademarks (and brands) the object of ire for a generation disaffected with the evident results of globalisation. I don't hold with Ms Klein, thinking that sweatshops and extreme (and even mild) poverty and inequality are the things we should fight against and that free trade, in most forms, is a good thing (although I'm dubious about the coerced liberalisation of foreign capital markets). Of course, Ms Klein's book helps those in the west react against globalisation by giving them something near at hand and easily identifiable (by design) to attack: logos. In my view a better take on the potential harm of globalisation (from an economic perspective, rather than a cultural one), would be Joseph Stiglitz' fascinating Globalisation and its discontents.

As for trademarks which facilitate brands, they play an important economic role:

Trademark law... was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying. Richard Stallman

Some brands have, as we know, taken on their own cultural significance for better or for worse, but by and large they help us identify who we are doing business with and they help us hold them to account. And accountability is important, a point apparently lost on the three conference attendees who asked not to be identified in the eWeek article. (of course, anonymity is important too). Trademarks require a degree of policing. Google know this, as do DuPont (nylon) and Otis Elevators (elevators).

And why is accountability especially important to Red Hat? Open source represents, from a certain perspective, the liberalising of the software market. It vastly reduces barriers to entry for suppliers, and barriers to exist for users. This is a good thing. Given that a company is supplying open source software which is, in theory, able to be compiled to binary by any Tom, Dick or Harry, how do you differentiate? It's your trademark. That's the brand that certified your operating system is supported, and that applications are supported on your operating system. And that is the value that Red Hat brings to its customers and it's what their business is and it's why I agree with Mark Shuttleworth (and the rest of the known universe) that it will be tough for Oracle to fork Red Hat. I don't consider this anti-community. Open source is not a free-for-all: it is fair-for-all, and Red Hat surely have a right to their trademark without being labelled "seeking profit at any expense".

Although the actions of large competitors like Oracle might well explain why Red Hat are twitchier about their trademarks than might otherwise be the case, allegations that Red Hat is behaving like Microsoft are surely wide of the mark - they are behaving like a company who is concerned about the use of its trademark. There is such a thing as "fair use" of a trademark (whether or not it is applicable is lost on me though, not being a lawyer), but any question about the Red Hat's behaviour is about wisdom, and not morality. It is surely about the extent to which they are able to encourage a community for their technology at any (as perceived by them) expense of the integrity of their trademarks. Not something I'd know about.

What I do know is that there needs to be an open source equalivalent of Godwin's Law. As an open source companies mature, the probability of a comparison involving Microsoft approaches one.


ps. the views expressed here are not necessarily those of my employer, I am not a lawyer and know nothing of trademark law (this is advice to no one), and I don't mean to specifically associate Microsoft with any totalitarian ideologies of the mid 20th Century.

Comments:

I think that at least part of the issue here is, as Neward mentions, that they started with a heavy-handed lawyer-ish cease and desist letter. Why not just a quick mail to say "that site looks like you're doing it with Red Hat's blessing, because you're using our trademark, and you aren't; is there any chance you could change it?" If the site then says: no, screw you, \*then\* you say "but we're allowed to stop you, and here's the C&D letter saying so". I don't think that people's complaints are around RH defending their trademarks, it's that "defence" seems to mean "sic the lawyers on them and bully them out of doing it because we're Red Hat and we've got proper lawyers who can terrify ordinary people with threats". That's how Microsoft behave, hence the comparison. You can be concerned about the use of your trademark without immediately resorting to threatening people, and I'd like to believe that the community way is to do that. You have a word with your neighbour about noise; you don't call the police, unless your neighbour's a deliberate nutter (which this bloke isn't) or you live in a place where you don't know your neighbours and there is no community (and we hope that the world of people involved in Linux and open source isn't like that, even if the general business world is).

Posted by Stuart Langridge on March 28, 2007 at 04:13 AM GMT-01:00 #

Sure, zero marks for style, but trademarks are in the end legal constructs so I am not terribly surprised (this is exactly how Google behaved last year after all). What would be the legal implications of sending the email you suggest for any subsequent communications? I am not a lawyer but I know a few. I'm sure they would have something to say. So, you get your lawyer to send a letter, and what you end up with is a C&D.

Anyway, I bristle at the comparison because litigiousness in relation to their own trademarks is low on my list of Microsoft irritations. So while you have a good point about it seeming "bullying", I take the view that it's just unfortunate and that the comparison trivialises other Microsoft behaviour.

And I have had neighbours call the police on me before knocking on my door -you're right, it's no way to behave.

Posted by Patrick on March 28, 2007 at 04:42 AM GMT-01:00 #

[Trackback] Matthew Revell makes an interesting point on his blog regarding the use of trademarks and Open Source companies after reading Patrick Finch’s blog. I find this of particular interest since we are currently in the process of filling out the tradem...

Posted by barking on March 29, 2007 at 12:22 PM GMT-01:00 #

The actual issue I raised (that Ted Neward missed) in the original post was that of ownership and how we as a community interact with that ownership. I posted again as the initial discussion devolved into a shouting match between a couple of commentors. The clarfication is here.

The C&D was not sent to me or my company BTW. A comment included a C&D sent suposedly from RH. I assume its real because a VP from RH also commented clarifying what they were doing.

I would love to here some linux/opensolaris thoughts on the issue.

Posted by bill Dudney on April 08, 2007 at 07:25 PM GMT-01:00 #

[Trackback] Patrick Finch - OpenSolaris marketing chap - has an interesting post about why open source companies need to protect their trademarks. He touches on something that annoys me almost every day: that a vocal minority of, often ill-informed, people think c...

Posted by Matthew Revell on April 24, 2007 at 04:14 AM GMT-01:00 #

[Trackback] Patrick Finch - OpenSolaris marketing chap - has an interesting post about why open source companies need to protect their trademarks. He touches on something that annoys me almost every day: that a vocal minority of, often ill-informed, people think c...

Posted by Matthew Revell on April 24, 2007 at 04:14 AM GMT-01:00 #

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