As we celebrate the 10th anniversary of CentOS, the Community Enterprise Operating System, all is not well in Open Source Land. If you haven’t heard, CentOS "joined forces" with Red Hat while you were enjoying the Christmas holiday. And RedHat wasted little time attempting to morph CentOS into a Trademark Minefield much as RedHat has done with its other "open source" projects. If you look at the new CentOS.org web site, RedHat proclaims a New Look and New CentOS. New, indeed. You won’t see many changes other than a healthy mention of RedHat and a vast new Legal section proclaiming RedHat’s ownership of the CentOS trademark and severely restricting acceptable use of the CentOS product. It’s more than a little ironic that RedHat actually pulled off a similar stunt against CentOS back in 2005. The initial problem this time around is that RedHat doesn’t actually own the trademark, nor has RedHat attempted to register it. There are some good reasons why, and we’ll get to those in a minute.
The RedHat Legal Theory of Trademarks goes something like this. We just don’t want people to confuse other products with our brand even though we all use the same, freely available open source brands. Get it? Well let’s try again. RedHat doesn’t mind using Apache’s brand name, and SendMail’s, and MySQL’s, and about 40,000 other trademarked and copyrighted products of open source developers. But God help you if the word "RedHat" appears anywhere in your open source software aggregation.
Now RedHat would like to extend this philosophy to CentOS for the betterment of the community, of course. If successful, RedHat bullying would wipe out virtually all of the current CentOS packages available from the following providers, and thousands more would disappear as well. Here’s the list from CentOS’ own web site, but don’t expect the list to remain around very long. The mere existence of this list proves CentOS acquiescence in the development methodology employed by Amazon Linux AMIs that include CentOS as part of the AMI, AsteriskNOW, BlueOnyx, BlueQuartz, CactiEZ, CentServer, ClarkConnect, ClearOS, Elastix, FAN, FreePBX Distro, OpenNode, OpenVZ, OS Office, OVH, Parallels Virtuozzo Containers, PBX in a Flash, Proxmox images that include CentOS, SipX, SME Server, Snaplogic, trixbox, trixswitch, VicidialNOW, most of the Virtual Machines and hosted platforms that rely upon CentOS with any other included application. And the list goes on. To give you some idea of how pervasive CentOS is in the products of other developers, try Googling: built atop centos. It returns over 21 million results.
In a nutshell, the new RedHat Terms of Service outlaw use of CentOS in any product "unless the combined distribution is an official CentOS distribution." In short, the open source community would be transformed into the functional equivalent of the Windows and Mac platforms. End-users could independently install CentOS and then acquire apps to run under CentOS, but CentOS could no longer be included with the application itself. Well, not so fast, Mr. RedHat.
Even though the evidence trail is quickly disappearing, there’s still plenty of CentOS history that suggests things may not work out quite as well for RedHat this time around. First, there is the CentOS "Social Contract" with the Open Source Software Community and The cAos Foundation’s Open Source Software Guidelines, both of which have conveniently disappeared from the CentOS web site. For history buffs, the cAos Foundation was the developer of the CentOS aggregation. If there’s one overriding principle in both trademark law and open source software development under the GPL, it’s this: YOU CAN’T UNRING A BELL. A license once given cannot be withdrawn at the whim of a new owner, even RedHat. Here’s an excerpt from their "Social Contract." Pay particular attention to the last paragraph:
Another problematic issue is ownership of the trademark itself. You can certainly own a trademark without registering it with the U.S. Patent & Trademark Office. But… since inception, the cAos Foundation has gone to great lengths not to ever enforce, proclaim™, or protect its trademark in CentOS. The reason is simple. They viewed CentOS as a community project which was free for everyone in the community to use and integrate as they saw fit. Thus it is more than a little puzzling that a single developer would finally file a USPTO trademark application for "CENTOS" (note the capitalization and compare to RedHat’s view of the universe) six months ago claiming that he individually owned the mark. Quite the contrary, the cAos Foundation referenced its CentOS brand as early as 2004.
This, of course, raises some additional problems with RedHat’s claim of CentOS trademark and service mark ownership. From a legal standpoint, owners of trademarks are obligated to police the use of their marks to avoid Dilution either by third parties or by tarnishment. Without delving too deeply in the legal weeds, suffice it to say the CentOS mark suffers from dilution on both counts over a period of almost 10 years! This is as it should be actually. CentOS was intended to be a community resource for everyone in the community to be able to use, integrate, and build upon. Because of its inherent non-commercial character, it was never intended to be a brand for independent marketing.
A third trademark infirmity for the CentOS brand is the fact that it’s suffering from genericide. In Plain English, CentOS has become a household word. In the Linux community, it signifies a generic open source Linux operating system. Just as with aspirin and thermos bottles, "a majority of the relevant public [has] appropriated the name of the product… [and, in essence,] the owners are victims of their own success."
And then there’s the matter of licensing. In addition to the "Social Contract" referenced above and upon which many developers relied, there’s also a financial angle. Individual developers reportedly have been given either express or implied authorization to integrate CentOS into their software products in exchange for financial contributions to the "CentOS project." We’ll have more to say about that in our Petition for Cancellation and Opposition to Registration of the CentOS trademark, if the trademark is ever approved for publication. We trust many other developers will file petitions as well. You can review the procedure here. You can follow the CentOS trademark saga here. Be advised that an Opposition to Registration (section 202) must be filed with the Trademark Trial and Appeal Board within 30 days of the date a mark is approved for publication in the USPTO’s Official Gazette. A sample Petition for Cancellation (section 307) is available here. You do not have to be a lawyer to file it. You do have to pay the $300 filing fee. The safest way to monitor approval is by regularly checking the Status of the CENTOS Trademark and Service Mark Application.
Licensing issues aside, there’s a more serious issue moving forward. Most companies used CentOS so they wouldn’t have to pay for Red Hat Enterprise Linux. Now Red Hat has bought CentOS. Guess what? Is it just a matter of time until CentOS is crippled so that it cannot serve as a drop-in replacement for Red Hat’s Cash Cow? Duh! Did the CentOS development team care about this? Probably not. Might not have even considered it. They got money and cushy jobs out of the deal. But, just because Red Hat offers financial rewards to a handful of CentOS developers is no reason to scuttle the development efforts of thousands of independent developers over the last decade. Better think twice, RedHat. The open source community will be watching.
Originally published: Monday, January 20, 2014
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