OSI enforcement? (Was Re: Microsoft use of the term "Open Source")

[Philippe Verdy]

B Galliart [mailto:bgallia at gmail.com]
> On Dec 31, 2007 2:45 PM, Russ Nelson <nelson at crynwr.com> wrote:
> > Chris Travers writes:
> >  > In essence, the OSI does *not* claim any protection or authority over
> terms
> >  > such as "open source."
> >
> > Just exactly WHAT are you talking about?  Are you a complete moron or
> > are you just mostly a moron?  OF COURSE OSI CLAIMS AUTHORITY OVER
> > TERMS SUCH AS OPEN SOURCE.
> >
> > Any doubt about it now?
> 
> As much as Chris Travers' line of reasoning bothers me.

To defend Chris here (but also to mitigate what he says), I must admit that
the OSI cannot claim authority on the *terms* "open source, only authority
on "Open Source" when used as a distinctive trademark, and to allow such
claim, the OSI would have to register it and define its scope precisely.

But I have still not seen any document proving that "OSI" (or "Open Source
Initiative") owns the trademark "Open Source" alone, with a valid
registration.

Now if OSI wants to register it, it will have to restrict the scope of the
claim because the terms were used in publications signed by lots of authors
long before OSI even existed, including with the two capitals with the form
"Open Source" because it was used in titles (of publications or of
chapters...). The OSI cannot claim ownership of works made by others before
in those publications.

So what does this mean? Probably:
* nobody else than OSI can use "Open Source Initiative" or "OSI" or the
associated logos (because they are registered, and such registration is
certainly valid)
* nobody else than OSI can now register "Open Source" as a distinctive
trademark (if such registration is possible, something that is not proven,
and will be invalidated in many countries)
* the terms "open source" themselves are free for use by anyone (or at least
by all the many users that have used in some publication before OSI
existed), as long as they don't claim this is a distinctive trademark (and
they can continue to use these terms, in any form including with title case,
even if this does not comply to OSI rules).
* only "Open Source (tm)" could be restricted (but even the OSI still does
not add the "(tm)" or the trademark symbol after it, which is a clear sign
that OSI still does not own the trademark !
* the terms "open source" are then weakly defined. Claiming that a software
is "open source" will not infringe any right, but it will does not
necessarily mean that the software uses a OSI-compliant/approved licence.

Users actually don't care much about the terms themselves; what they want is
a way to assert that the licence is effectively free for use by them, and
secured against future proprietary claims by others; for this they need some
certification, and this can come in different ways:

* by OSI making the list of approved licences really visible, wellknown and
easily verifiable by the public
* by OSI developing a proprietary logo that can be displayed in softwares
that use compliant licences.
* by software makers linking their softwares or licences to the OSI website
showing the statement about the licence approval.
* by OSI becoming an housekeeper for the licence text originals (to avoid
that others use slightly altered licences that could still be binding users
with non free terms, even though it is linking to some page on the OSI site
where the effective licence used by the software could be easily confused by
the licence approved by OSI): each approved licence by OSI should have a
well defined URL, giving its approval status and the official text. The OSI
site would require that anyone linking to it in association with a licence
would be forced to use only the text as permanently stored in the OSI
housekeeping area.