I am not just a librarian by training and trade. I am a librarian as a vocation, and I am using vocation in the spiritual sense. I believe in free open access to information right along with free public education in order to support a more informed public to support the collaborative decision making processes of our nation (and the world). So when the University of Michigan, where I work, went and put their necks out in support of Fair Use and open access, I was quite happy about it. The general shift here on campus toward using more open source software and resources is part of that whole movement, as is the open educational resources community on campus. Open Michigan is not just a website, but a mission, an institutional mission. That is just the background to show that I am both personally and professionally supportive of the open source movement.
This morning I had planned a completely different blogpost when someone from the UK sent me a tweet to alert me to a legal issue in New Zealand that relates to open source software used to support libraries and their activities. Two of my favorite topics — open source and libraries! It turns out that the problem appears to be being initiated by a company here in the United States, land of the free and home of the brave. (Happy Thanksgiving, everyone.)
On the one hand, you have a small library community that created some open source software to solve needs faced by many libraries for which, at that time, there were mostly rather expensive commercial solutions, or awkward homegrown solutions that didn’t quite address the whole picture. The software takes off, builds a strong community. Everyone is happy. <3 small libraries! <3 open source!
On the other hand you have a company that has built itself around supporting exactly the same open source software package. They mostly help out public libraries with small budgets and not a lot of technology staff figure out the tricky parts of making open source software work for them. They make it easier for the small guys to take advantage of the whole idea of open source. <3 small libraries! <3 open source!
You would think these two hands would be a match made in heaven, dovetailing together and helping each other out, like in the photo above where the hands meet and form a heart. A marvelous opportunity for "You scratch my back, I'll scratch yours." But that isn't what happens. Instead, the company supporting the open source software tries to take it over, trademarking the name of the software and its community.
This situation is alarming to me. Since I am not a lawyer or legal expert it is entirely possible that I am misunderstanding something here, however it looks pretty simple and straightforward, at least on the surface. Here is a small set of building blocks to spell out what seem to be the main pieces of the puzzle. See what you think.
ABOUT OPEN SOURCE
“Open source doesn’t just mean access to the source code. The distribution terms of open-source software must comply with the following criteria:
1. Free Redistribution
2. Source Code
3. Derived Works
4. Integrity of The Author’s Source Code
5. No Discrimination Against Persons or Groups
6. No Discrimination Against Fields of Endeavor
7. Distribution of License
8. License Must Not Be Specific to a Product
9. License Must Not Restrict Other Software
10. License Must Be Technology-Neutral”
Of this list, in my non-legal perspective, the most important parts seem to be:
“1. Free Redistribution
The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.”
“3. Derived Works
The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.”
“Koha is the first free and open source software library automation package (ILS). Development is sponsored by libraries of varying types and sizes, volunteers, and support companies from around the world.”
“The koha-community.org domain is held by the Horowhenua Library Trust, the progenitors of Koha.”
Koha Library Software Community: http://koha-community.org/
“Today, LibLime is the global leader in Koha support. LibLime facilitates Koha open source solutions by providing consulting, development, implementation, and support/ hosting for libraries of all types & sizes. Koha provides libraries with a cost effective alternative to the traditional commercial model of software license costs and expensive annual maintenance.”
“The situation we find ourselves in, is that after over a year of battling against it, PTFS/Liblime have managed to have their application for a Trademark on Koha in New Zealand accepted. We now have 3 months to object, but to do so involves lawyers and money. We are a small semi rural Library in New Zealand and have no cash spare in our operational budget to afford this, but we do feel it is something we must fight.”
“For the library that invented Koha to now have to have a legal battle to prevent a US company trademarking the word in NZ seems bizarre, but it is at this point that we find ourselves.”
“A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.
See 15 U.S.C. § 1127.
See also service mark, collective mark, certification mark, trade name.”
Cornell University Law School: Legal Information Institute: Trademark: http://www.law.cornell.edu/wex/Trademark
MY TWO CENTS
Briefly, it seems to me that the core idea of Open Source is “Thou shalt not require money or otherwise restrict the use of the product in any form” while the core idea of Trademark is “Thou shalt not use this product in any form without getting my permission (usually by paying me money)”. These two concepts seem to be diametrically opposed. This isn’t a case of another company using the same name to mean something entirely different. This is a company that specializes in supporting open source software trying to trademark the name of the software that they support. They work in this field! LIBLIME SHOULD KNOW BETTER!!!
That’s my two cents. Does this make sense, at all, to anyone out there? If so, please explain it to me. I cannot see any way in which this is right, or even reasonable or logical.
Hat tip to Maria Wolters