Patents, Trademarks, and the OSI…
Slashdot has a piece up on an open source business model that uses the patent system against itself (similar to how Stallman used copyright against itself with the GPL). I’ve batted ideas like this around in the past, but in my head at least, it always breaks down right at the patent troll level: I can think of no ammo to accumulate against them.
But of course, in standard /. fare, the discussion veered off-course almost immediately and folk took to bashing trademark law. While I agree that it’s being stretched quite a bit of late, I have no problem with its purpose. As a software developer, this comment sums up my feelings nicely…
What’s wrong with trademark law? Patents prevent me from writing my own frippin’ code. Copyrights prevent me from modifying and sharing code. Trademarks are a way of saying who the code is from, and giving proper credit is pretty much mandatory in the free and open source software movements.
But also in standard /. fare, the response to this sentiment is fierce…
Trademark law was created to benefit consumers. That purpose has changed. From Yochai Benkler’s The Wealth of Networks (p. 290):
“in 1995, the U.S. Congress enacted a new kind of trademark law, the Federal Antidilution Act, which for the first time disconnects trademark protection from protecting consumers from confusion by knockoffs. The Antidilution Act of 1995 gives the owner of any famous mark — and only famous marks — protection from any use that dilutes the meaning that the brand owner has attached to its own mark. It can be entirely clear to consumers that a particular use does not come from the owner of the brand, and still, the owner has a right to prevent this use. While there is some constitutional free-speech protection for criticism, there is also a basic change in the understanding of trademark law — from a consumer protection law intended to assure that consumers can rely on the consistency of goods marked in a certain way, to a property right”
It had never really occurred to me…
Trademarks are undergoing the same change as copyright and patent. These began as privileges intended to promote the public good. They have been transformed into property rights for private benefit, at the expense of the public they were originally intended to serve.
Trademarks are often abused to achieve an effect similar to copyright. For example, trademarks can be registered on names from the public domain. IANAL, and I know courts have ruled that this is not the purpose of trademarks, but they are used this way regardless. Want to publish a Conan story in Canada (where Robert E. Howard’s works are unambiguously in the public domain)? Go ahead - but don’t call it Conan. Or look at the continued abuses of the Olympics to force already-existing businesses to change their names.
Trademarks are used to create monopolies on whole categories of products. I have a young son and recently discovered how effective this is for toys. Toys have gone from being simple products to being cross-promoted product and entertainment lines. You no longer buy your child a toy train - you buy a Thomas the Tank Engine train. Sure, kids love Thomas, so there’s some value there. But it pushes out competition and diversity, dominating the whole product category. How can you compete unless you too have a TV show, books, toy trains - the whole bit? One by one, the categories in toy stores are turning into brands. In a Toys R Us I found the “trains” section should simply have been labeled “Thomas and Friends” - because that’s virtually all that was there (and boy was it overpriced). Now Disney seems to be trying to do the same thing with Cars.
Kids learn brands at a very young age, and I don’t think they’re good for kids. Despite my efforts, my son knew about Thomas by age 2. Then he started asking about other products. I taught him the word “logo” because I didn’t want him to think “Dairyland” was the word for yoghurt. I want him growing up in a world of trains and cars and music and so on, not of Thomas(TM), Cars(TM), and Apple(TM). I want a chance to teach him what a brand is (and what it is not) before he assimilates them into the kinds of objects that exist in the world. Brands were supposed to enable consumer choice, not narrow the kinds of things we can think about.
Damn strait. I truly enjoy being wrong sometimes.