Re: Future of the `Open Source' trademark
On Tue, 24 Nov 1998, Software in the Public Interest wrote:
> I have just posted the message below to spi-announce. It will
> hopefully be appearing in various free software related forums; I've
> submitted it to col.announce, gnu.announce and two freebsd groups, and
> I have a volunteer who is going to put it on slashdot.
> Apologies for the lack of communication from us while we were drafting
> this, but it has all had to be done in a terrible hurry to avoid the
> damage being done by Bruce et al spindoctoring.
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> Software in the Public Interest, Inc.
> Statement, and Request for Comments, regarding the
> Future of the `Open Source' trademark
> There is currently some dispute about the status of the `Open Source'
> trademark. The SPI board feel that it is important that the future of
> the mark be decided in an open and transparent manner. Therefore, we
> are making this announcement, which has three purposes:
> 1. To explain our view of the current situation.
> 2. To explain some of the background as we see it.
> 3. To consult the wider free software community about the future of
> the `Open Source' trademark.
> The rest of this announcement will go into these areas in more detail.
> 1. THE CURRENT SITUATION
> Software in the Public Interest, Inc (SPI) is a non-profit
> organisation whose aims are to help the development and distribution
> of open software and hardware. Currently SPI's associated projects
> include the Debian GNU/Linux distribution, the Berlin windowing
> system, the Gnome desktop, and others.
> The SPI board believes that the Open Source trademark is currently
> owned by SPI; however, Bruce Perens and other former board members of
> SPI are in the process of setting up another organisation, the Open
> Source Initiative, and claim that they own the mark (while repeatedly
> demanding of the SPI board that they immediately transfer ownership of
> the mark to OSI).
> The SPI board feels that the Open Source trademark is an important
> public asset which should be owned and managed for the benefit of the
> free software community. We feel that the mark should be owned by an
> open and accountable organisation, preferably an organisation
> controlled by a membership consisting of free software developers.
> Furthermore, we feel that any transfer of the mark to another
> organisation should be carried out with due care and thoughtfulness,
> and after a public consultation.
> An online discussion between the SPI and OSI boards has failed to
> reach consensus. The OSI board continues to demand immediate transfer
> of the mark, and has stated to us an intent to take immediate and we
> believe possibly fraudulent unilateral action with the trademark
> office to achieve this.
> The SPI board continues to maintain that any transfer should take
> place with due consideration, and in particular, that a public
> consultation should take place before any transfer. Relations having
> broken down, we are now therefore acting unilaterally in distributing
> this announcement and request for comments.
> Furthermore, the SPI board hopes that the community will give due
> consideration to their belief that the mark should be managed by an
> open and transparent organisation.
> 2. BACKGROUND AND HISTORY - GORY DETAILS
> (a) SOFTWARE IN THE PUBLIC INTEREST http://www.spi-inc.org/
> SPI was incorporated in June 1997 by Bruce Perens, Ian Murdock and Tim
> Sailer, originally as a legal vehicle for the Debian project. Ian
> Jackson was appointed to the board shortly thereafter.
> Following various discussions about the subject amongst board members
> and members of the Debian Project, by mid-March 1998 the board members
> had all agreed that SPI should broaden its scope to more than just
> Debian; since then, various other projects have become associated with
> SPI as it continues to broaden its scope. The new SPI board are
> anxious to continue this process.
> Up until August 1998, there had been continuous rumblings about lack
> of openness on the part of SPI. (Ian Jackson had attempted to improve
> matters, for example by scanning in and publishing the bylaws, which
> had previously not even been available to the supposed members of the
> organisation.) On the 4th and 5th of August, matters came to a head,
> and the three board members apart from Ian Jackson resigned
> simultaneously, apparently due to criticism about the closed nature of
> the organisation.
> As required by the bylaws, Ian Jackson appointed a new board,
> including Dale Scheetz, Nils Lohner and Martin Schulze. Since then
> the new board has been working to put the affairs of the organisation
> in order. For example, there do not appear to be any board meeting
> minutes, resolution minutes or membership records, and we believe that
> some trademark documents (including some for the Open Source
> trademark) are still with former board members.
> The new board have set up the SPI web site, giving details of the
> organisation's bylaws and articles of incorporation, board meeting
> minutes and resolutions, and so forth. We have just approved two key
> resolutions regarding our relationship with our associated projects
> and assets we hold - the Framework for Associated Projects, and the
> Statement and Promises on Intellectual Property, and these are now
> published on our site.
> The board plan to revise the bylaws appropriate to the wider role for
> the organisation which was agreed informally by the previous board.
> In particular, the board will establish new rules for membership which
> will allow free software developers to become members of the
> (b) THE `OPEN SOURCE' TRADEMARK
> The `Open Source' trademark was registered in SPI's name by Bruce
> Perens in February 1998, anticipating the wider role that would be
> agreed for SPI. Since then the mark has been managed by Eric Raymond.
> According to Bruce and Eric, on the 20th of March 1998 Bruce sent Eric
> an email which claimed that `SPI hereby transfers' all interest in the
> Open Source trademark to Eric. This message did not follow a board
> resolution to this effect, and indeed at least one other board member
> was not aware of its existence until it was forwarded back to the
> current board by Eric during the current dispute ! It is not the view
> of the current board that this email has any legal validity, as it was
> sent without approval of the board.
> Shortly following their resignation from the board of SPI, the former
> board members moved to set up a new organisation, the `Open Source
> Initiative', which they are currently in the process of incorporating.
> Since this time Bruce Perens has repeatedly demanded the immediate
> transfer of the Open Source trademark to this new organisation.
> The SPI board engaged in discussions with Eric Raymond regarding the
> future of the mark. After some discussion, during which the new SPI
> board stated that we don't believe we have all the paperwork, and
> expressed our reservations about the new OSI organisation, Eric became
> convinced that SPI was failing to honour its promise (as evidenced by
> Bruce's 20th of March email) to transfer the mark to him, and also
> demanded its immediate transfer to OSI.
> The SPI and OSI boards met online to discuss the matter. There was
> much discussion of procedural niceities. When substantive matters
> were reached, Bruce Perens and Eric Raymond insisted that OSI or Eric
> already own the mark; Eric Raymond expressed the view that he
> personally should decide on the mark's future, and denied that there
> was such a thing as a `public asset'; the OSI board members present
> accused SPI of footdragging.
> The SPI board maintained that an open and accountable organisation,
> preferably a membership organisation, should manage the mark. We
> stated that we wished to consult a public consultation exercise
> regarding the mark's future. We expressed a willingness to transfer
> the mark to another open organisation. We expressed reservations
> about certain current OSI board members, Bruce Perens in particular.
> The SPI board maintained that at least at the moment, SPI is a more
> open, accountable and transparent organisation than OSI.
> 3. PUBLIC CONSULTATION
> In accordance with SPI's Statement and Promises about Intellectual
> Property, the SPI board are conducting a public consultation exercise
> to determine the future of the Open Source trademark.
> Broadly speaking, we can see four options:
> (a) Retain the mark, managed by Eric Raymond if he is willing.
> (b) Turn the mark over to another free software organisation.
> Which one ?
> (c) Turn the mark over to the Open Source Initiative, which is in the
> process of being set up by Bruce Perens and others.
> (d) Retain the mark, and appoint new manager(s). Who ?
> We would be grateful if members of the free software development
> community would let us know their thoughts on the matters we've raised
> Please mail us at <firstname.lastname@example.org>, giving your views
> and reasoning. If you feel we might not know who you are, please also
> state your association with, and contribution to, the free software
> The consultation period will end at midnight at the end of the
> calendar year 1998, UTC. All consultation responses will be made
> public by SPI after the consultation period has closed, unless the
> respondent specifically requests otherwise.
> 4. CONTACTING AND PARTICIPATING IN SPI
> For general information about SPI, please see our web site, at
> www.spi-inc.org. General enquiries should go to email@example.com.
> Press enquiries to firstname.lastname@example.org, please. Thank you.
> If you want to discuss matters relating to SPI, please use our mailing
> lists - details on our web site. Please use the `spi-general' list
> for discussion of the Open Source trademark.
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