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

[Philippe Verdy]

Matthew Flaschen [mailto:matthew.flaschen at gatech.edu] wrote:
> OSI has never "compelled" anyone.  What they have done, and must
> continue to do is:
> 
> a. Be very clear about what is and isn't open source.
> b. Tell people to describe software as open source only when it actually
> is.
> c. Ask people to speak up loudly when software is described incorrectly
> as open source.

So this is what you or others are referring to when you speak about "moral
rights". Note that "moral rights" have a legal definition in some countries
(possibly still not in US, but true in Europe), and I'm not sure that this
is the correct term to defend due to the legal implication (moral rights
have to be justified as well by a legitimate right where national laws offer
a legal protection, here Open Source Initiative has a moral right that
allows it to *use* any part of its own name, but that dos not mean that
others can't use it as well).

Note that US voted for many years against the recognition of moral rights,
but had finally to resign its position in WIPO, by accepting to recognize
the moral rights protected in other countries parties to the WIPO treaty
(notably France that has a very strong legal definition of moral rights and
of many other rights related to trademarks, names, author's rights, moral
rights, copyrights, patents, and other derived rights, all joined now within
a single law, this law being also enforceable throughout the European Union
as a recognized national implementation of the EUDC directive).

Moral rights in US are still very weakly defined because they are quite new
and not really tested in courts for US in US cases with a strong
jurisprudence, so even if there are areas (such as some states) where they
are well protected, this does not necessarily span to the whole US
federation (because there may still exist many conflicting jurisprudence
that can only be solved by changes in federal and/or state laws).

If OSI wants now to defend its position under the assumption of existence of
moral rights, this is its own position, but other parties are also
interested into defending ALSO their own view under the same base, and
nobody will be able to "compel" the other party to change its position
before it is tested and decided either in Court or by a strong legislation.

As far as I see the problem, the claimed moral rights are still very weak,
and will not resist to effective claims by a party that has gained an
effective legal right by registering "open source" as a protected trademark
in some other country that is a signatory member of WIPO: if they can do
that, they will be in a much stronger position than OSI if they want to
compel OSI of stating what is or is not "open source".

Anyway, the subject is already so hot and well known in lots of countries
that I have doubt that any country will ever accept now the registration of
"open source" as a trademark, due to the huge history of prior use (or prior
art), and really a lot of groups and companies throughout the world that are
monitoring any attempt by anyone to register it for its exclusive use. Too
many parties are interested into keeping the terms free from any exclusive
claim (including by OSI itself), because it would severely impact their
everyday business and would cause severe havoc!

It will then just remain the use by OSI of the complete name "Open Source
Initiative" (whatever its capitalization, because I think it is not
critical, and the 3-words expression remains protected independently of
that) or its existing logo.