Open Usage Commons: a warning

[Moonchild]

I was pointed to a blog post made in the Google websphere that talks about the Open Usage Commons, an organization to, allegedly, provide trademark services for Open Source developers so they can protect their brands, identity and above all trademarks. On the surface this sounds great to provide to the Open Source community, but a few things didn't sit right, so I dug a little deeper, visited their website, and specifically their FAQ to get an understanding of what they are (supposed to be) doing for F(L)OSS, its communities and developers, and the various Open Source identities of software products, services and groups.

Among other things in the in general overly-vague FAQ that in half its questions focused on specific usage questions of the 3 pre-approved Google products/services that already have a place there, there was the following sticking point:

To be able to provide the management and support services that are part of the Open Usage Commons, the trademarks that join the Commons will be owned by the Open Usage Commons.

Source: https://openusage.org/faq/#what-is-the-difference-between-owning-source-code-ip-and-owning-a-trademark-who-owns-the-ip-of-the-projects (last sentence)

The FAQ also explained who is involved, and that made me further question things:

The Open Usage Commons consists of a Board of Directors. It will soon have a Legal Committee that advises the board and the projects, as well as advisory members – individuals selected by the projects to guide the trademark usage policies.
[...]
The board of directors is Allison Randal (Open source developer and researcher), Charles Isbell (Georgia Institute of Technology), Chris DiBona (Google), Cliff Lampe (University of Michigan), Miles Ward (SADA), and Jen Phillips (Google).

Source: https://openusage.org/faq/#who-is-involved-in-the-open-usage-commons
Feel free to check out any of these names, most will likely have a Wikipedia page or similar describing their involvement in management circles and the general area they work in. I find the collection of people most peculiar if the mission really is what the vagueries describe.

So, after finding all that out, I decided to send them an e-mail with a number of questions that were raised by their website and not answered, outlined below:

1. As stated in your FAQ, any projects joining the Open Usage Commons will have to sign over property ownership of trademarks to you. This will effectively give you absolute control over the brand and trademark used by the project (effectively its identity). Why would any project owner want to do this?
2. For many FOSS developers, creating and establishing their identity (and growing their audience as a result) is a slow, organic process that often takes years, so we don't see at all what benefit there would be to basically hand this over to a new organization that has nothing but a promise to found itself on. Can you clarify the benefits for Open Source projects that already have established their identity, brand and trademarks, whom are your target audience?
3. What exactly are your ties with, and influence by, Google, with how you have 2 Google board members, Google obviously being an advisory member on trademark policies, and an early adopter/preferential position by having the first projects be part of the Open Usage Commons before it's even opened to any(!) other developers?
   3a. All things being equal, to what level does Google's influence determine your direction and policies?
4. Trademarks and branding are primarily a mark of quality assurance to users of Open Source, and the GNU Open Source philosophy wholly agrees with that by supporting that specific rules for the use and redistribution of branded software are perfectly okay, to protect this QA. By not being the project developers, you can, in our opinion, never guarantee the necessary quality assurance on software that carries certain branding, and as such are in no position to determine what is fair use of a trademark or who is in a position to properly use it.
   How are you, as a commons organization, going to be able to assure free and fair use of trademarks and branding while not diminishing this QA verification and expectancy whenever specific brands and trademarks are used?
   
   And some less important legal-tech questions:
5. Trademarks are region-specific, yet your organization seems to be USA-centric. Are you going to provide world-wide coverage of trademark usage protection or will it be solely for the USA?
6. What legal body do you answer to in case of disputes?
7. Is there a way for project owners to withdraw from the Open Usage Commons after they have joined, and effectively regain full control over their IP?

All of these are important questions for anyone to know who might consider joining this Commons organization. Receiving a reply from Chris DiBona (who is, in case you aren't aware, the Director of Open Source at Google, overseeing all Open Source activities at the mega corp.) was, to say the least, an utterly disappointing one-liner:

Our website covers many of these quest and the rest will be clear over time. Visit back later to find out more.

Not even touching on any one of these points. I wrote back that it draws the org's trust level in question if these important yet general questions aren't answered, since it's a good question how they expect to ever build the amount of trust required for developers to give the org ownership of their brand, brand identity (and therefore their known names of software) and trademarks if claimed.
The response was yet another one-liner, further flat-out refusing to address the voiced concerns in the questions:

I'm sorry, it's nothing personal but all the questions you have will be answered in time on the website or they won't, regardless were not going to engage with you on these personally, it doesn't scale.

So the non-answer being "it will be answered or it won't" and further clouding the important issues in questions not answered and vagueries without commitment.

So, to summarize:

• Google's directors have 2 seats on the board. Actually, no, make that 3. Miles Ward was a Google employee for 5 years in management too (Director of Solutions) until April 2019. Don't think those ties are so easily cut.
• The org currently only has a board of directors, and refuses to answer questions that should already be known by setting up the organization and launching it. This refusal doesn't feel on the level, and does not instil the needed trust for anyone to sign over their intellectual property and software identity.
• Some of Google's projects are already established members ahead of everyone else, whom will have assigned "advisory members" for the trademark policies the org should maintain -- basically pre-approved VIPs which indicates quite clearly that this is a Google venture above all.
• The org wants to have full ownership of your brand and trademarks.
• The org can't reasonably be expected to be an arbiter on "free and fair use" of trademarks when those trademarks are tied directly to quality-of-work.
• There is no information on legal precedent, legal governing law, or how the org is funded and by whom.

Which brings me to my warning: if you are an Open Source developer and own/lead a project, and have an established name, brand, logo or trademark for it, please think twice about joining this "commons" that will become the owner of your work's identity; the part of the Open Source software that makes your project yours. Don't think you are too small of a developer to be interesting; and don't think you need a lawyer to own a trademark (all that takes is doing some research on previous uses of your brand name, and if not in conflict, simply publicly making a claim with intent to actively use the trademark (TM) and defending it if someone tries to steal it from you). Don't give away your IP, certainly not to the likes of an org that seems very heavily Google-influenced and Google-sourced! As far as I can tell they will be able to, and likely will, hold your trademark and brand hostage.

How does that scale for you, Chris?

[Baloo]

Google is trying to own open source. Their blatant attempt to steal trademarks is just another step to web standard domination as they use open source to undercut their competitors ability to make any money at all.

[Tharthan]

Don't give away your IP, certainly not to the likes of an org that seems very heavily Google-influenced and Google-sourced! As far as I can tell they will be able to, and likely will, hold your trademark and brand hostage.

Do you actually think that people will listen, especially those outside of the GNU-type camp or people affiliated with UXP projects?

I'm sceptical.

Google is trying to own open source.

That much is obvious.

Their blatant attempt to steal trademarks is just another step to web standard domination as they use open source to undercut their competitors ability to make any money at all.

What bothers me, frankly, is that they have such gall. No other company would or could get away with trying to pull this.

[Moonchild]

Do you actually think that people will listen, especially those outside of the GNU-type camp or people affiliated with UXP projects?

They might, if enough people know about it.

[New Tobin Paradigm]

That isn't true but Google could succeed in it if no one challenged it.

[Moonraker]

In a nutshell.
If you join this organisation then everything you have created and worked on and all related trademarks etc are to be handed to google on a silver platter and YOU as developer have to answer to google chiefs...what a shit show,they truly are trying to gollop up everything and it seems open source is not even safe from the goliath..good grief i do hope this post gets spread quite rapidly and spread the news.

Just out of curiousity moonchild and not to appear rude but were you by any chance stroking your chin and considering joining...?

[vannilla]

The U.S.A.-centric probability is pretty fearsome if you ask me, more than other concerns.
Despite being called the land of freedom, there are some restrictive rules over there which do not exists in other countries (not just third-world places), so by being part of this thing a non-american developer will very likely be subjected to laws he/she would otherwise not be, and that's pretty scary.

[Tharthan]

Despite being called the land of freedom, there are some restrictive rules over there which do not exists in other countries (not just third-world places)

Off-topic:
Freedom ≠ licence

Different things, vannilla. Having the licence to do whatever on Earth you want is not what the U.S. is about.

Granted, some of the copyright laws here, especially relating to digital stuff, may go a bit overboard/have loopholes that content owners can manipulate. I've been concerned about that for years.

[Potkeny]

To be able to provide the management and support services that are part of the Open Usage Commons, the trademarks that join the Commons will be owned by the Open Usage Commons.

For most end users that are just consuming the source code, this doesn’t directly, immediately change their experience.

Who it does impact are the companies that want to offer managed versions of these projects, or who have the project as part of their service and want to use the project brand to demonstrate quality/innovation/etc. Applying OSS principles and neutral ownership of the trademark means that these companies can invest in offering “Project as a Service” because it’s a guarantee that they can use that mark; it won’t be suddenly taken away on a whim after they’ve built up an offering around it.

I might be too tired to understand it correctly, but are they really saying the benefit is not for "the project", but for those companies who make money by depending on "the project"?

My pessimist self says google wants to bath in the "we're supporting open-source projects!" praises while controlling (if not owning) the trademarks of those "open-source" projects..

[RoestVrijStaal]

That board of OpenUsage is a joke. 50% of its members have close ties with Google. I won't be surprized if the rest will have them as well, but are omitted from the persons' description.

Also about the ownership thing: the FSF advises to users of their licenses to do a similar thing as well, minus the transfer of ownership of trademarks and branding.

[adesh]

I think they'll be able to engulf half of the projects easily. Many of the "internet software" already make use of Google libs and APIs. Also, lazy developers won't read as much as Moonchild did.

I'd say this can happen for the same reason we have reached where we are.

The U.S.A.-centric probability is pretty fearsome if you ask me, more than other concerns.

Off-topic:
Your Europe is best. If I leave my country, I'll join a good country in Europe.

[Tharthan]

Also about the ownership thing: the FSF advises to users of their licenses to do a similar thing as well, minus the transfer of ownership of trademarks and branding.

I think that that is quite a different kettle of fish.

GNU and the FSF are pretty up front about their ideology, and you can either take it or leave it. If you contribute to their cause, you almost certainly know what you are getting into.

For the average person, Google is totally different. And Google doesn't exactly advertise as being a radical organisation wishing to impose their products and control upon everyone.

[adesh]

Google doesn't exactly advertise as being a radical organisation wishing to impose their products and control upon everyone.

And yet it does!

[Moonchild]

Also, lazy developers won't read as much as Moonchild did.

Why do you think I posted a warning about it? Because devs who don't look into it as much or have trouble cutting through the woolly wording on the website might fall into the trap and lose ownership of their work.

I might be too tired to understand it correctly, but are they really saying the benefit is not for "the project", but for those companies who make money by depending on "the project"?

Yes and no. They are saying they benefit both. What they propose is to take the "burden" of trademark management out of developers' hands and become arbiter of what is "free and fair usage" of the brands and trademarks (which, IMO they can't do, see my question 4 in the OP). This benefits companies who might otherwise have to be concerned about using FOSS logos in their own projects, etc., as if that kind of use isn't normally allowed under fair use. In fact, as long as you mention that the trademarks belong to their respective owners when you use them, i.e. credit the owners of the marks, there should never be an issue using the marks to signify dependence on third party software unless it's explicitly forbidden.
So, for companies it's about getting a "guarantee" that the branding can be used freely and perpetually. It's being marketed as a convenience for developers, to "let the Commons worry about all that pesky trademark stuff"; but seriously, if you have already established yourself with a brand and trademark and known name, you really don't need them to manage that for you; not like this can't easily be done by the developers themselves because all it takes is publishing a statement on the use of branding and trademarks, letting third parties know what you want to allow and not allow. Fair use is otherwise a pretty well-defined term for trademarks and logos!
And they certainly don't need to own your IP to do such a thing.

[Moonchild]

Also about the ownership thing: the FSF advises to users of their licenses to do a similar thing as well, minus the transfer of ownership of trademarks and branding.

I never really agreed with that, myself, but when it comes to code, and the free adaptability and sharing of it, in a certain point of view (some would say the communist approach to developing) an argument can be made for that. Even so that's entirely up to the devs if they want to make their code not just open licensed but pretty much public domain with the copyright only there so commercial entities can't snag it up. That commitment goes both ways though, since it also prevents you from using the code in your own private sphere in the future, if you want to have something proprietary based on what you wrote. But code management is not at all what this is about. This is about your trademarks, your brand, your software and your software identity; that which sets your efforts apart from a publicly licensed pool of code, that which you are proud to underwrite with your name and share. The FSF will never try to take that away from you.

[Potkeny]

I see, thank you, "the "burden" of trademark management" did slipped my mind as a possible benefit.

[JustOff]

Thanks for your research, every developer should definitely be aware of these pitfalls.