Thursday, October 4, 2007

Has And Belongs To Many: The Problem With Trademarking Rails

DHH used his legal ownership of the trademark on Rails to prevent a Rails book from using the Rails logo.

Jeff wanted the Rails logo on the cover of the book but was informed by Apress that David Heinemeier Hansson has been “politely resisting” permission to use the logo, and has said in the future, it will only appear on his books.

I'm going to show you why that was really bad.

Exhibit A.



Exhibit B.




In both these instances the unspoken assumption that the Rails logo was community property led to graphic variations on the core logo which express variations on the core idea.

That's a very cool thing. From one logo, we now have a small iconic vocabulary. However, both of these images are illegal. Any "word" in this vocabulary would also be illegal.

If DHH genuinely intends to assert his trademark, he has to take legal action against both the Newcastle Rails user group and the company RoundHaus for trademark dilution - either filing suits, or sending cease and desist letters. If he fails to do either of these things, any attempt he makes to assert his trademark ownership in court can fail because he permitted trademark dilution to occur.

I'm not suggesting this action actually occur. It's not that big a deal, in this case. But the legal details make an important point very, very clear: asserting that kind of control requires being actively hostile to your users.

One of the reasons trademark law sucks so much ass is because it doesn't recognize legitimate uses made by members of a community who have a legitimate community claim to partial ownership of intellectual property. An open source project has a large number of authors, but the trademark on it can (and in this case does) belong to just one of those authors. Obviously, DHH is Rails' primary author, but as obviously he is not its only author. He is, however, the only one of Rails' authors whose rights as a Rails author are protected under the law.

That situation is legally perverse, and can lead to some demented outcomes.

If DHH decided to sue some other Rails author for using the Rails trademark - in some alternate universe, where DHH was replaced by Bizarro DHH, some total douchebag alternate-reality evil twin - if that were to happen, and Bizarro DHH had also taken the steps of suing RoundHaus and the Newcastle group - no other author of Rails would have any method of resisting Bizarro DHH. Technically speaking, Bizarro DHH could even sue to have the word removed from another person's resume. This would apply even for prominent members of the Rails community well-known for their contributions to the framework. The law only recognizes the one author. The law does not match reality.

The only way to make the law match up with reality is to build some kind of nonprofit org and transfer the trademark rights to it, and then come up with a whole nightmarish beauraucratic tangle of bylaws to accomodate decision-making. It's madness, and it's way too expensive to be practical. But the alternative, obviously, is equally nuts. Obviously DHH isn't going to sue anybody to take the word "Rails" off their resume - but it's equally obvious that the mere fact that Bizarro DHH could if he wanted to is totally insane.

Trademark rights are destructive to the cooperation and trust necessary for successful open source projects.

Although I work mainly with Rails and blog a lot about Rails, this isn't really a Rails thing. It's just an example of how totally awful US copyright and trademark law is. If it bothers you, give money, time, and attention to the copyfight, because it needs to be fixed.

5 comments:

  1. Bizzaro or not, DHH couldn't sue anyone to take "Rails" or even "Ruby on Rails" off their resume. Used in that context, you are not making an implied connection between you and Rails from an ownership or endorsement standpoint. I can say "I know how to code with Ruby on Rails" all I want... What I can't say is "I coded Ruby on Rails".

    Using the logo on the other hand is a different matter. The inclusion of the trademarked logo could imply an endorsement, which he obviously doesn't want to do. Simply listing "Ruby on Rails" on a resume doesn't have the same meaning. DHH wants control over his brand, and since he worked so hard to build it, I don't necessarily see a problem.

    Just because there is a community that uses Rails, doesn't mean that they have partial ownership of it.

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  2. I don't have a problem with it either, but that's not the point. The point is that the enforcement rests on DHH's goodwill. And by your own logic, a person who made a major contribution to Ruby on Rails could not legally say so unless DHH was willing to allow them to say so.

    It's not about DHH. It's about the law. The law is insanely wrong.

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  3. Linus Torvalds owns the trademark for Linux, and he registered it to protect the name from becoming "associated with unacceptable (or borderline) behaviour". See Wikipedia and Slashdot (Which is basically just a repost of a LKML post) for more details.

    I expect that DHH has registered "Rails" and "Ruby on Rails" for similar reasons to those Linus had.

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  4. As the owner of the RoundHaus logo in question the intent wasn't to infringe in anyway the Rails logo. It was created completely from scratch with the track style inspired by the Rails logo. If DHH feels that it is a trademark infringement he wouldn't have to sue me, simply ask me to change it. I am human after all, not some amorphous company.

    I do get the point of your post and agree that US copyright and trademark law are unfair and unrealistic.

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  5. I sure didn't have to go far-- you call for a lawsuit over the idea of bunnies in new york, yet you think that people with legitimate trademarks shouldn't be allowed to protect them simply because this is inconvenient for people who want to share trademarks. (Which is wrong in the first place- you can easily protect a "community" trademark under the law by executing license agreements with every party thats "infringing"... the agreement doesn't even have to require financial remuneration...)... but you being wrong is beside the point.

    The point is your a hypocrite.

    ReplyDelete

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