[ogb-discuss] Sun's Responses to the OpenSolaris Trademark Questions

[Roy T. Fielding]

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On Feb 13, 2008, at 7:55 PM, Al Hopper wrote:
> IMHO - the time for debate is over.  The OGB effectively failed to
> influence Sun substansively.  And, FWIW, I'm OK with that.  Sometimes
> you're the driver and many times you're just a passenger.
>
> I remain positive and committed to the project.  Now lets move forward
> and continue to evolve/refine the best OS on the planet....

Not me.

Sun didn't just make vague statements to me about OpenSolaris;
they made promises about it being an open development project.
That's the only way they could get someone like me to provide
free labor for their benefit.  Given Sun's recent track record
on breaking promises, another one doesn't surprise me at all.

Just to be clear to everyone concerned, the trademark issue was
discussed at the first meeting of the CAB and regularly since then.
At no time whatsoever was it ever unclear that Solaris was the
trademark being controlled by Sun.  "OpenSolaris" was only
controlled as necessary to prevent consumer confusion with the
"Solaris" mark, which is more than satisfied by the powers handed
out in the Charter and the agreement that only Sun's distro would
be called Solaris.  That's all there is to it.

Most of the stuff in that letter about Sun's responsibilities in
regard to "International Trademark Law" is nothing more than
snow being tossed in the eyes of technical folks who don't have
access to their own lawyers.  More to the point, it has nothing to
do with the marketing decision to start calling Indiana "OpenSolaris"
instead of "Solaris Express".

Somebody inside marketing decided to change the agreement we
had about distros and then pushed through their opinion based
on "legal"-excused b.s. rather than simply ask for a change via
the community process.  Sun does that kind of thing to open source
developers all the time (witness the JCP fiasco), so again this is
no surprise to those of us who have been around awhile.

Trademark law exists to protect consumers from fraud, not to
prevent companies from licensing their own trade names.  The
criteria for such a license doesn't even need to be "objective."
It just has to be consistent in the eyes of the consumer.

Yes, use of the name "OpenSolaris" by third parties would require
some form of Sun-controlled licensing scheme.  The OpenSolaris
Community, however, is not a third party -- it is an informal
association that exists at the sole discretion of Sun and is fully
capable of being delegated limited decision-making authority
(but not ownership) over what *is* called OpenSolaris.  That's
what the Charter does and it does not affect Sun's control over
the bare word "Solaris" at all because it doesn't give anyone
else the right to call something "OpenSolaris" (i.e., the
consumer is not confused and the Solaris mark is only used with
permission of the trademark owner).

Sun gave up its right to make arbitrary decisions regarding the
phrase "OpenSolaris" as part of its public agreement with the
community in the form of the Charter.  That was a self-imposed
restriction in exchange for the benefits of community-driven
development, freely made, and cannot be changed except in
accordance with the charter itself (for example, by amending or
dissolving the charter).  The charter has therefore been violated.
Sun can't make decisions for the OGB any more than the OGB can
make decisions for Sun -- that was the whole point in having Sun
sign the Charter to create a separation of authority, since
there was no other means of determining authority given that
Sun retains ownership of all the IP.

The truly stupid aspect of this issue is that, AFAICT,
most of the people still hanging around here (including myself)
think that it is a good idea for OpenSolaris to produce a reference
distribution of some kind within an open development project of
the OpenSolaris Community.  The way to do that is fully defined by
the Constitution.  In fact, if it weren't for the extremely
pig-headed way in which Indiana was thrust on the community as
Ian's private domain, it could have easily been a unifying path for
all of the distros.  It could have given them a gate within
OpenSolaris in which to collaborate, instead of doing all of
their work in separate communities outside OpenSolaris.

Indiana is just another private marketing team within Sun that
is making private decisions about "OpenSolaris" that aren't even
in line with the internal processes of Solaris Engineering, let
alone the published governance model of the OGB.

Sun agreed that "OpenSolaris" would be governed by the community
and yet has refused, in every step along the way, to cede any real
control over the software produced or the way it is produced,
and continues to make private decisions every day that are later
promoted as decisions for this thing we call OpenSolaris.
Rather than be honest about it and restructure the community
to correspond to this MySolaris style of over-the-wall
development, Sun prefers to lie to the external community
members while ignoring their input.  Yes, Sun has the legal
right to make that decision, just as it has a legal right to
dissolve the charter and start over with a new governance
model.  The choices being made are NOT the problem.  The problem
is the way that the choices are being made WHILE, at the same
time, portraying the project in public as a community-driven
effort.  The community outcry would be horrendous if it weren't
for the fact that Sun is pressuring its own employees to keep
quiet instead of allowing them to participate as individuals.

This well is poisoned; the company has consumed its own future
and any pretense that the projects will ever govern themselves
(as opposed to being governed by whatever pointy-haired boss
is hiding behind the scenes) is now a joke.  Sun should move on,
dissolve the charter that it currently ignores, and adopt the
governing style of MySQL.  That company doesn't pretend to let
their community participate in decisions, and yet they still
manage to satisfy most of their users.  Let everyone else go
back to writing code/documentation for hire.

There's nothing particularly wrong with that choice -- it is
a perfectly valid open source model for corporations that
don't need active community participation.  IMO, the resulting
code tends to suck a lot more than community-driven projects,
but it is still open source.

In any case, I am done with it.  I hereby resign my status
as a Member of the OpenSolaris Community, effective immediately.

Cheers,

Roy T. Fielding                            <http://roy.gbiv.com/>
Chief Scientist, Day Software              <http://www.day.com/>

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