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

[Philippe Verdy]

> De : 'Rick Moen' [mailto:rick at linuxmafia.com]
> Envoyé : mardi 8 janvier 2008 03:29
> À : license-discuss at opensource.org
> Objet : Re: OSI enforcement? (Was Re: Microsoft use of the term "Open
> Source")
> 
> Quoting Philippe Verdy (verdy_p at wanadoo.fr):
> 
> > > > ...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.
> 
> > > And, I will reiterate yet again -- as I did when Philippe was
> attempting
> > > this same chain of reasoning last year, that trademarks _never_ convey
> > > any right to exclusive use.
> >
> > I am attempting *what*?
> >
> > You infer things that I never said. I have NEVER stated that trademarks
> > "never convey any right to exclusive use". You are inventing !
> 
> Um, please read more carefully.  (You've inserted the word "NEVER".)
> I was saying that your postings from last year characterised trademarks
> as making the owner "the legal owner of the expression" -- i.e., that
> trademarks convey the right of exclusive use.

I maintain that a trademark is registered by its owner exactly to get an
exclusive use. But don't read it too broadly: I have also maintained that
all exclusive uses are granted by the public for an exclusive use but this
exclusive use is limited in both scope and area (and even time because the
registration system will most often require renewal and payment of fees to
extend this reservation).

The amount of fee to pay to the registry in order to get this reservation
also largely depends on the extent of the scope and area of the exclusive
claims, and a too broad reservation that attempts to cover things or areas
already reserved for use by others, or used legally since long by many, will
normally be rejected because it will abuse the public interests.

The existence of registration systems is a tolerance made by the public,
only because it is in the public interest to have some works being
developed, financed and paid back to their promoters, because such
development will benefit to the community. If this reservation desserves the
public interests, it will not be tolerated.

The limitations of time, scope and area are also there to help preserve the
public from the creation of monopoles in domains that will become later
critical for everyone: if the monopole is maintained, it could stop or
prohibit the innovation and would bind the public only to the desires of a
single owner. It sometimes happens that the community will need an universal
access to the protected rights, before the granted exclusive rights are
extinct.

There are several solutions, but sometimes a law will decide to make such
thing public, and will offer a reasonable compensation to the owner (unless
the regime is oppressive and offers no compensation at all to owners), that
will have the possibility to defend his case in a court, not just to defend
its exclusive rights, but only for the amount of money to get from the
community to compensate its loose of "ownership".

When you buy a house, you become an "owner" of it or of the field where it
is built, but even in this case, you are occupying a community property (and
using public facilities, or creating collateral damages to the environment
or neighbours by your presence) and the community will request you some
taxes to compensate for this sole occupation and the use of these facilities
or the damages and costs that your occupation will generate on others.
There's in fact no absolute property without compensation, the registration
system is prolongating this fact by requiring the payment of fees to the
community.

The terms "exclusive right" must not then be misinterpreted, it does not
mean "universal rights".