There is little dispute today about the virtues and value of open source software. Too often, though, people think that Open Source also means the abandonment of copyright or trademark rights. That is not the case.

On the contrary, the permissiveness of the Open Source philosophy can live in good balance with the restrictiveness of copyright and trademark protection. This balance is needed for ensuring the long-term viability of Open Source, not only as a philosophy but also as a business model.

Today’s recent debates on selecting names for Open Source projects further highlight the issue. The way we learned the lesson at MySQL AB was through painful litigation. But staying on top of the matter was the only course acceptable. Today, our business grows profitably from month to month and we can afford to hire new programmers to develop GPL software. If we did not have that "MySQL" trademark in our ownership and under our control, our business future might not have been as good.

Trademark protection also holds true for Linux. Linus Torvalds decided not to attempt to control the business in and around Linux, but he does own the trademark. He owns the trademark and he and his peers govern the development of Linux. To customers this means that "Linux" is something they can trust. They know that the name cannot suddenly be used in the wrong context, and they know that the name stands for a reliable, convenient operating system.

All of this boils down to basic human instinct to divide names into those you can trust and those you cannot. People want a name to carry meaning. Germans say, "Nomen ist Omen," meaning roughly that "names raise expectations."

If you are an Open Source developer and are proud of what you have developed, you definitely want to give your program a name (perhaps your own name). You also want people to identify the name with your own philosophies and priorities (bug-free, ease of use, performance, reliability). You would never want anyone else to use YOUR name for something that does not live up to your requirements. The best advice on offer is to pick a name that you can register as a trademark and thus protect.

If you do not protect your name, chances are that someone else tries to "trade on your name," i.e., get the benefits of your name without having produced your product. Even if no one intentionally does so, someone might choose and use your name by mistake.
 

It all started when the Mozilla organization announced a new name for the project to redesign their browser: Phoenix. They liked the name, but then discovered Phoenix Technologies markets a browser of its own. Then the Mozilla people had another bright idea. Name the browser Firebird. Uh-oh. Up stepped the Firebird organization that produces the Open Source relational database by the same name.

But sit down. A pipe is a pipe, not to be confused with a browser that’s a browser, and not to be confused with a database that's a database, so where’s the confusion? A look at the database group behind Firebird brings some of the answers. A legal perspective brings another.

Firebird is the group that survived tumultuous beginnings as a breakaway contingent, after Borland decided not to spin them off into an independent Open Source company. In the earlier deal, Ann Harrison, a present-day Firebird database project administrator, was to be the interim CEO. When the deal fell apart, she and a number of database developers walked off to create a Firebird fork. 

Since 2000, the year of Firebird’s site debut, the group has worked in dedicated, Open Source community fashion to increase membership, fine-tune their database, and compete as an enterprise-ready database. They also built up communication efforts to trumpet their value, depending on their three-year-old moniker of Firebird to stake their identity. That another well-known Open Source group was using the same name was intolerable for Firebird’s Harrison and others.

Firebird’s administrators responded early on, posting an announcement on the Firebird site about how the group was unhappy, arguing that there was not that great a distance between a browser and a database, because databases and browsers were often used in the same applications, potentially bringing confusion. Harrison also urged Firebird site visitors to let the Mozilla “forums know how you feel” by sending e-mail to Mozilla’s discussion groups and members.

Like who needs to light a match at a gas pump. Harrison herself, witnessing the firestorm of e-mails in a Mozilla forum, admitted afterwards in an interview with MozillaZine that she never expected the overwhelming response when she asked Firebird devotees to state their opinions. She had only wanted to raise the project profile, not raze a forum. She made an effort to appeal anew for calm and reason. She apologized to the staff of Mozilla for any problems a mail bombing may have caused.

In an update posted on the IBPhoenix front page, Harrison told Firebird members, developers, and well wishers: “Yesterday, your voice was heard on their forums and in broadly targeted e-mail. We've got their attention. Now, we should make our argument, simply, cogently, and with the respect owed by one open source group to another. The point is not to smother them in accusatory or derogatory messages, but to inform them of the confusion we see coming from their product's sharing our name and the damage we think that will cause… When writing to the Mozilla forum or MozillaZine, use the same courtesy we use with each other in our discussions. Better yet, use the courtesy that we often use when we haven't forgotten ourselves and jumped on a soap-box.”

Jonathan Walther, a Debian developer, could not have said it better. In fact, Harrison’s apology to mozzilla.org was his request. Walther was suddenly finding himself in a unique position of mediator between Firebird and Mozilla. [see interview].

How was it that Walther was hand-picked to stand in the middle of two emotional and visible communities?

Precisely because Walther, a Unix and Internet consultant and Debian Package Maintainer, was neutral. When the firestorm first broke, he e-mailed his concern to Harrison, and in his characteristic reasonable way, told her some issues the Mozilla people were facing and how the dispute might be resolved. Sensing he was the right one to call upon, her instincts were one and the same with those of Mozilla’s people: She asked Walther to act as mediator, and nothing could have been more amenable to Mozilla developers, who also told Walther his e-mails were rational and calm.

In a message to introduce himself in his newly appointed role, he let Mozilla’s people know that he had no free-drink tickets that the Firebird database group were offering to punch. In fact, he said, he was so neutral that “for my personal use, I use Postgres.” Walther didn’t believe he could save the day single-handedly but he believed he could help—having born witness time in and time out to the way some Open Source developers, for the sake of keeping projects rolling, use their heads to work differences out.

“During my time as a Debian developer,” he told Open, “I’ve had the privilege of watching first-hand how some truly skilled developers kept the project rolling along by their exercise of good politics.”

Does good politics mean that Open Source projects yield the power of more than one to heal as well as divide? Walther cautions that “The Free Software projects that succeed, do. The ones that do not, languish and die.”

In an open letter to Ann Harrison and the Mozilla staff, his suggestion was a reasoned one, digestible to both sides after tempers had died down: “If the mozilla org web pages could be altered to make it obvious that Firebird is not the name of the browser, I believe that would eliminate all of the Firebird database project’s objections,” he told the two groups.

For Mozilla, in a “branding strategy” statement released by them on April 25, the solution to resolve this dispute seemed to them reasonable: “When referring to Thunderbird or Firebird before or during the 1.4 release cycle, make sure to use the project name with Mozilla pre-pended as ‘Mozilla Thunderbird’ or ‘Mozilla Firebird’ instead of Mozilla alone or Firebird/Thunderbird alone. Use the names ‘Mozilla Browser’ and ‘Mozilla Mail’ to describe the Firebird and Thunderbird projects after the 1.4 release.”

This, however, was not to become the happiest solution for Firebird. Some Firebird database members feared trouble ahead. The problem relates to linguistic human nature: Mouthfuls that do not sit comfortably on the tongue get shortened until they do. “I live in the United States of America becomes “I live in the States.” Mozilla Firebird, by third or fourth reference, may become a shortened ‘Firebird,’ and therein lies a trademark conflict’s rub. Firebird’s administrators knew this bloody well, and foresaw the risk, even while the Mozilla.org site was using its Mozilla Firebird references consistently,

They foresaw that not everyone would be avoiding shortened slips of the tongue instead of referring to full references to “Mozilla Firebird.”

By April 29, it was clear that Harrison and other administrators were still not entirely confident the danger was eradicated for good. In an update on the firebird.org site, a statement about protecting Firebird’s brand read, “The branding statement [Mozilla’s] does a lot of footwork to make and reiterate the point that the product must be referred to as "Mozilla Firebird browser" and, preferably, as "Mozilla browser" … provided all of the satellite websites comply AND "Firebird" disappears from all of their pages, documents and tags next month, as promised, then we can take comfort that the letter of the law, at least, is to be observed.”

But an April 26 article on TechWeb indicates how easy it can be for those outside the Mozilla and Firebird database arenas to veer from the détente’s policies and procedures. Elided references are, for those nervous about trademark infringements, virtual hair-pulling events: “Whatever you think of the new name for Mozilla.org's next-generation browser, Firebird (as the Phoenix browser is now known) is smaller, faster, and more reliable than the Mozilla Navigator, the current underpinning of all Netscape 6.0 and 7.0 releases,” reads the article and it refers to the browser elsewhere in the article: “But after personally using Phoenix and the early 0.6 Firebird releases…”

At the time of this writing, Harrison and crew at the database org prefer to assume that after Version 1.4 ships, on May 14, Mozilla.org will stop using “Firebird” but they continue to have eyes wide open in continuing their resolve to protect the name to which they attach so much importance.

“The last thing the Firebird project wants to do is to get lawyers involved,” Walther told Open earlier on. Similarly, Harrison herself, in an interview with MozillaZine earlier on, said, “We are not interested in a legal case.” In an interview with Harrison in Open last week, however, it looked as if the “last thing” could, if the group feels circumstances warrant, be pushed up in the queue of next moves.

Should Mozilla continue to infringe on the marks, Firebird administrators are prepared to take legal action, she told Open. It’s not what we want, she adds, but one issue for the Firebird database community is non-negotiable: “We will not abandon our trademark.”

Nor do legal eagles, corporate executives, and project leaders who have experienced name conflicts take any dispute lightly with no lessons to be learned.

In a companion story, Mikko Valimaki, partner in Turre Legal Consulting, takes the Firebird/Mozilla example as one that shows how “the lesson for us, and that includes Open Source developer/entrepreneurs, is that in any Open Source project you must be very careful about your rights, both as to software code and its name.”

In a viewpoint literally from the top, Marten Mickos, the CEO of MySQL AB, speaks soberly about the importance of trademarks from direct experience: In 2001, then a newly appointed CEO, Mickos found himself at the center of a court embroilment between MySQL AB and NuSphere (Progress Software) over, among other contentions, trademark infringement.

Lest anyone confuse the spirit of Open Source with the spirited resolve to enforce name ownership, Mickos picks an individual that almost everyone in the IT can recognize as a compelling case in point: Linus Torvalds. If Torvalds did not want to control the business in and around Linux, he nevertheless does own the trademark and governs the development of Linux. To customers, Mickos adds, this means Linux is something they can trust.