This Wednesday I participated on a panel discussion about "
Open Source in the Enterprise - Chances and Risks" at the JAX 2006 conference in Wiesbaden, Germany. It was a lively discussion, with good comments and questions from the audience.
One thing I found noteworthy is that many people still seem to be worried about using OSS when it comes to licensing and legal questions. In fact, these concerns seem to be more dominant than preoccupations about the technical capabilities of OSS software itself. Some claimed that they find OSS licenses confusing and do not feel certain if their usage of OSS actually complied to the licenses. I was thankful that we had Till Kreutzer from the
ifrOSS on the panel as well, who (in my opinion) did a good job in dispelling a few myths and clarifying some popular questions.
One essential legal aspect of licensing OSS is of course the differentiation between
using and
distributing the software in question. There is a difference if you simply take OSS and use it for your personal needs and including and distributing it in your products. Naturally, there were some direct questions about our dual licensing model and I hope I managed to explain how it works.
However, the legal dimension of using OSS also relates to trademarks. With me on the panel was Tobias Hartwig from JBoss Germany and I felt a bit sorry for him, as he recieved quite some heat about certain activities that his company had been involved in last year. JBoss Inc. is very strict and protective when it comes to using their trade marks. They caused quite some uproar about this last year, when they sued a German training company about using the product name for their training courses after they terminated their partnership. JBoss was accused of basically using their trademark as a weapon to eliminate unwanted competition.
Which got me thinking, as we at MySQL AB also have to make sure, that our trade marks are being protected and used in the approriate way. Will we at some point get into the same situation as JBoss, being criticised for actions to protect our trademark? It seems that many people confuse copyright and trademark ownership with licensing agreements. Even though the GPL defines what you can do with the software itself, it does not cover the proper use of trademarks that might be affiliated with that code. In our case, we have registered "MySQL" as a word mark and have published guidelines about how to properly use our name and logos in our
Trademark Policy.
It discusses the differentiation of trademarks and the GPL:
The GNU General Public License (the "GPL") is one of the ways by which MySQL AB distributes the MySQL server. The GPL permits third parties to use and redistribute the underlying software under certain circumstances. Such use and/or redistribution of MySQL AB software products are much welcomed by MySQL AB, but should be distinguished from the use of the MySQL Marks. The GPL does not provide any license or right to use any MySQL AB Mark in any form or media. Thus, although a GPL licensee may redistribute the underlying software, a GPL licensee may not use any MySQL AB Mark in doing so without the express prior written permission of MySQL AB. Otherwise, users could be misled into thinking that revisions made by a GPL licensee were created or endorsed by MySQL AB, or that those revisions met the quality control standards of MySQL AB.It also states, why we consider our trademarks to be important for us:
Trademarks are important because they help to prevent confusion in the marketplace by distinguishing one company's products and services from the products and services of another. For example, when a user sees the MySQL mark on the MySQL server, the user understands that MySQL AB has either created or endorsed that product, and that the product is subject to the quality control standards of MySQL AB for that product. If anyone other than MySQL AB or one of its authorized partners or licensees were to use one of the MySQL AB Marks to promote a database server, users could be misled into thinking that the unauthorized person's products or services were created or endorsed by MySQL AB, or that those products or services met the quality control standards of MySQL AB.This means we always have to walk a thin line here - on the one hand we of course want to foster and encourage the development of a rich ecosystem of software around the MySQL Server and our other products. On the other hand, we need to make sure that the distinction between MySQL AB's own products and third-party software is always clear and our trademarks are properly used. This could of course mean, that we sometimes get into legal disputes with other companies that violate the policies that we have laid-out. But this should not be misinterpreted as MySQL AB being on a witch-hunt, using our trademarks to go after other products or projects - this should always remain the last resort for enforcing our rights.
A trademark is a symbol of trust. If others attempt at unfairly profiting from the trust put in MySQL, we need to take action. We need to make sure that both our paying customers and our community users can trust the MySQL brand. In fact, US trademark law obliges trademark holders to chase down any infringements, otherwise this unauthorised use dilutes the trademark and can potentially be used to have the trademark be declared void.
This is a key reason why we have to be rather strict; we may otherwise wish to be more lenient in certain cases, but the law will not allow us that freedom. If we don't chase it, we'd lose the trademark altogether.
