What community will own SOFTWARE FREEDOM?

Two non-profits providing services to free and open source software projects – Software Freedom Conservancy (Conservancy) and the Software Freedom Law Center (SFLC) are in a dispute over the SOFTWARE FREEDOM CONSERVANCY registered trademark.

You can read the timeline of all events and my legal analysis, so now it’s time to get to the important issue: what the community effects are from the SFLC’s petition to the TTAB and the blog posts on both sides.

UPDATE: Karl Fogel and Neil McGovern have both blogged in detail on this.

The community reaction so far (for those FOSS community members even aware of this issue) seems to fall into three general camps:

• Conspiracy theories relating to GPL enforcement styles, Linux Foundation funding and secret manipulations, or focusing on past history and personalities (and conflicts between) of the principals on either side.
• General confusion about what the issue is, how the petition to cancel the registration works, and why SFLC made this petition now.
•  Dismay at SFLC’s action. How can it be anything other than bullying, given that they helped to create Conservancy when it started?

This is still early in the news cycle for this conflict and is certainly very early in the legal proceedings at the TTAB.  On the legal front, the cancellation proceeding at the TTAB expects the parties to start discovery by 7-December, and to end by June of 2018. But the legal side is far less interesting than the community aspect of this case, since both organizations primarily serve FOSS communities

Conservancy’s Response To The Cancellation Petition

Conservancy posted a public statement after their counsel formally responded to the TTAB petition, calling the petition “Bizzare”.  Conservancy starts off with the obvious and predictable reaction to a surprise legal filing:

[SFLC] took the bizarre and frivolous step of filing a legal action in the United States Patent and Trademark Office seeking cancellation of Conservancy’s trademark for our name, “Software Freedom Conservancy”. We were surprised by this spurious action. In our eleven years of coexistence, SFLC has raised no concerns nor complaints about our name, nor ever asked us to change it.

They note dryly that SFLC helped to form the Conservancy as an organization, and excitedly endorsed the Conservancy’s move long ago from all-volunteers to including paid staff. Conservancy also pointedly notes (quite correctly) that “legal action [should be] a last resort, to be initiated only when other community efforts have failed to resolve the problem.”

In particular, Conservancy’s blog goes on to say:

In stark contrast, SFLC made no efforts — over the last eleven years since Conservancy was formed, nor in the last five years since we registered our name as a trademark — to express any concerns about our name, or a desire for us to change our name. We first learned of SFLC’s complaints from this surprise attack of legal action.

Overall, this is a measured and thoughtful blog post, expressing exactly what I would expect to see: dismay over unneeded legal action, and a hope that they could discuss the matter amicably (presumably without having to give up the trademark they’ve used since their creation).

SFLC’s “Concerning a Statement by the Conservancy”

The SFLC publicly responded a few days later, after their annual event had wrapped up and “after a little much-needed rest, to help everyone avoid unnecessary hyperventilation.” They then describe “What Has Happened?“, starting with a paragraph of technical details on the legal TTAB petition that they launched earlier.

They note “if a recent mark junior to yours causes likelihood of or actual confusion, you have a right to inform the PTO that the mark has issued in error” and describe what may happen at the TTAB:

So the result is very like a trial, and is conducted before an administrative tribunal called the Trademark Trial and Appeals Board. Its job is to decide whether the PTO wrongly registered a mark likely to cause confusion, which the PTO isn’t statutorily authorized to do. The process is formal, conducted under rules like the Federal Rules of Civil Procedure, and its records are publicly accessible. This is not a proceeding in which anyone is seeking an injunction or claiming damages. The only question being asked is whether the PTO should have issued the trademark.

The continue with a much more accusatory tone, IMO, by saying:

By no means does this situation justify the tone of defensive overreaction we heard from the Conservancy management on Friday, which was like reading a declaration of war issued in response to a parking ticket.

Far more importantly, the SFLC addresses the obvious question of “Why Didn’t You Settle This Between the Organizations?” by essentially saying that the Conservancy’s principals “have never once agreed to meet with us to hear and discuss our concerns.”  This seems in direct conflict with Conservancy’s obvious surprise at the legal maneuver – although since lawyers are involved, you’ll need to read the full blog post to make up your own mind.

SFLC wraps up with a set of rather distasteful characterizations about Conservancy’s “irresponsible” response and their “reckless refusal… to negotiate” along with a few other aspersions on their behaviors. To add some insult (it would seem), SFLC even makes an appeal to the member projects at Conservancy:

Any project working with the Conservancy that feels in any way at risk should contact us. We will immediately work with them to put in place measures fully ensuring that they face no costs and no risks in this situation.

Reading the two organizations’ positions, it’s clear to me which side most community members will support.  Bullying and direct competition to take away projects from another non-profit is never appropriate in open source.

If you are a Conservancy member project, we want to hear from you.  Since this is a legal proceeding, it’s likely that Conservancy’s officers and staff have limitations on what they can say in public. But if you are a member project, make your voice heard, and reach out to the Conservancy staff!