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On Branding and Copyright--Open Source For Entrepreneurs

Posted by n_alex on October 21, 2003 at 6:46 PM PDT

There are two subtle but unique resources in open source which, if acquired and carefully leveraged, can give your business a leg up over some of the big players in the market. One of these resources is control over the copyright of the software. The other is control over the brand.

Both of these resources are incredibly important over the lifetime of a successful software project but are often overlooked in the rush to set up a CVS tree and start committing. But later on, major problems can spring up when you find yourself locked in to somebody else's license scheme or (potentially worse), somebody else's brand.

The Licensing question eventually always boils down to Copyright authority. If you've a warchest of developers from around the world who've committed software to your project over the course of a couple of years, and you want to make a change in the licensing, you're stuck. In order to change the license you need to get the signature of every developer who has ever worked on the software.

Take JBoss for an example. Earlier this year when Core Developers Network forked the JBoss project, they knew full and well they could not change the license of the software from LGPL to Apache. They would have needed to get permission from every person who ever worked on JBoss if they wanted to do that. So they were bound to the LGPL, which is why the Apache Geronimo Project must completely rewrite the JBoss deployment system. Ironically, this has turned out to be a great excuse to overhaul and modernize a much-needed piece of technology. We're adding full JSR-77 and JSR-88 support, among other things.

But what few people know is that the licensing matter was the smallest obstacle in forking the JBoss project. The biggest problem was the brand. The trademark to the word "JBoss" is owned by Dr. Fleury. Now before you gnash your teeth and curse the man, think about the benefit for him as an Entrepeneur. He is the sole owner of his trademark, which means he owns the brand. Nobody can use the JBoss trademark in their product without his approval--including in package declarations and imports in their software. Now that's an advantage that could also be yours, if you ever built a successful product.

That degree of control over the brand gave Dr. Fleury an edge. Core Developers Network hacked the logic of the law and renamed every instance of the word JBoss to Elba, but go take a look at the Elba downloads from the last month and compare it with JBoss 3.2. The fact remains that Dr. Fleury controls the brand. He's invested a lot of time in that brand, and he'll no doubt reap the benefit of that investment someday.

And more power to him for thinking ahead. It's really too bad that he didn't think ahead about the copyright issue. He admitted earlier this year in an interview that one of his largest regrets was not licensing the product under the full GPL. Why? Because then he could follow the MySQL business model and sell non-GPL licensing at a premium, without losing the good graces of academia and the free software community.

Now consider the Apache Software Foundation. Here's an organization that really thought matters out. Not only does the Foundation have control over the brands of their respective projects, but they also require that all committers sign a contract assigning the ASF copyright authority over everything you commit to their projects. Now at first, this seems really bad, but once you realize you *always* have original copyright over your own creations and that you cannot just give it away, that the ASF really just has a copy of your copyright, you generally sign the form and bask in the glory of having committed code to the ASF.

So where does this bring us? To you, dear reader. Your projects and the potential companies you might someday form in order to help you promote and reap the benefits of your open source endeavors. We've seen how a strong brand can drown out an anemic one how control over that brand can be a tremendous advantage in business. Strong brands are assets which cannot easily be measured, but whose effects are nevertheless extremely important.

We've also seen how obtaining control over the copyright assignments for your software project can help that project leverage its license down the road, and how failure to do so can lead to license lock-in. Licensing is without a doubt a major concern of any software business. If you can't change your license over time to adapt to the changing needs of the market, you could find your company dead in the water.

Plus, open source developers will respect you for bringing up the license issue before they start contributing their spare time to furthering your commercial success. People like to know what they're getting into, or at least they like to have some idea about it.

So next time you come up with a fantastic idea with obvious benefits to the business community and you get serious about implementing it in Open Source, think for a while whether or not you'd like to stake a claim in the marketplace as a professional. Do some serious research on licensing and copyright law and if you decide to take the Entrepeneurial challenge give some serious thought to your branding strategy.

If you don't, someone else might just come along, scoop up your good ideas and do it for you. Who wants to be a starving artist, anyway?

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