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

Philippe Verdy verdy_p at wanadoo.fr
Tue Jan 8 22:49:55 UTC 2008

Matthew Flaschen [mailto:matthew.flaschen at gatech.edu]
> Your "Kissybears" discussion seems to have evaded that quite neatly.

Sorry, I should have asked if this is a correct translation. I was "kidding"
here on the French expression created after the name of "Bisounours" which
are the French name of characters of a program on TV for (girls only?)
children, living in a sort of fairy tale world where all is beautiful and
magic, nothing bad can really happen, everybody is happy, and all the minor
problems find an easy solution that pleases everyone.

And regarding your query about who is monitoring this term, just look at the
so many professional websites that have created special sections about these
terms, and collecting links and information about the subject and offering
subscription to newsletters and alerts on the subject, some of them
requiring membership and payment of monthly or yearly membership.

Lots of trademarks are monitored like this by all sorts of corporations or
organisations that have some interest in them, at least for their own
trademarks, but not only those one: they monitor also all sorts of subjects
in which they have some interest. Given the widespread use of open source
and free software in so many projects, and the fact that many organizations
are also interested into creating their own licences (because they can see
some areas where the subject could be compromised by others), they would be
fooled if they did not monitor this subject, but only the use of their own
trademarks throughout the world.

Open source softwares and free softwares are now clearly part of their
assets, including at least the Linux servers that they use to run their
webservers or their own development platforms and communication/email
platforms. Companies thoughout the world have already been threatened by
patent claims, and some Linux distrubutors are now also selling legal
insurances for their investment. Such thing would not even be sold if there
was no such difficulty and threatening. Monitoring the important terms is a
preventive measure to help them avoid these problems or find solutions as
early as possible before they become too serious and cost them a lot.

We can see a proliferation now of "cease and desist orders", that don't
necessarily end in a Court decision because a negociation occurs before to
stop the issue, but a significant part of those negociations are ended after
costly payments, or some companies buying licences for patent claims (even
if they prove later to be invalid: there are also now legal actions against
those that claimed and collected money based on false allegations of
proprietary rights, and actions made by the legitimate right owners against
those that have collected money illegetimately from other companies). Courts
are now increasingly concerned by those disputes between conflicting parties
disputing their "proprietary rights" or trying to reinterpret their old
patents that they maintained secret for many years before starting to claim
their rights.

All those companies that have been threatened in the past by such actions
are certainly monitoring the terms and the name of their licences,
trademarks, service marks, patents or other "intellectual rights", as well
as the name of their own employees and directors; they also actively monitor
the activities of their competitors. And if they can find that some of their
currently used assets are not enough protected, they will try to protect it
themselves by adding layers on top of it for their exclusive use (in their
own domain of interest).

Not all protection schemes re necessarily harmful, when they are created:
most of often they are created in reaction to possible future threats by
others. But when this becomes to be really bad is when a company gets in
financial troubles, and is sold to other interests that want to monetize
their investment, by transforming for example a patent used liberally into a
money-making scheme. Beware of investment funds buying organizations in
troubles, what they do at that time is most often to monetize everything
they bought. They don't create anything, and quite often they will even
abuse the terms of the past liberal contracts and licences.

That's what I was refereeing to, when I spoke about the fact that we don't
live in a "Bisounours' world". (I invented the term "Kisssybears" to
translate the term, but there may already exist another name in English or
similar characters for this TV show...)

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