Monday, October 10, 2005

The question of intent

In many discussions about the topics we cover on this blog, the question of intent comes up. Why are we doing this? There has been much speculation over this on various online discussion forums, so we thought we would clarify this issue once and for all.

There are three layers to this case, and why we do this. First of all, it is the fact that a German company, and the individuals within it, has first been a partner of JBoss Inc., and then this partnership was ended and followed by a lawsuit which is based on a trademark for services around JBoss. Not only is this bad business conduct by JBoss Inc., it also severely harms Brockhaus Gruppe financially, and by extension, the individuals and families which they support. This is not acceptable. During the short time I have known them they have proven to be a good representative of the German service provider community around JBoss, in every respect. To be sued for that excellence is quite outrageous.

Second, we are many individuals and companies who provide good services and solutions around JBoss, and want to continue to do so in a free and unrestricted way, while of course adhering to good business practices when it comes to respecting the trademark of JBoss the product. JBoss Inc. has now on this issue shown that it intends to forcefully protect its trademark for services around JBoss, a trademark that we believe the owner, Marc Fleury, should not have received in the first place. As but one example, if this practice is continued it would mean that I, as a co-founder and core contributor to the JBoss Application Server, would not be allowed to market and conduct training sessions for JBoss. This is not acceptable. We, the community around JBoss, must be allowed to provide services which help further the usage and understanding of JBoss the product, without any arbitrary restrictions from one company, or even individual, who happened to be able to get the trademark for such services.

Lastly, the fundamental question that we believe the community and industry must recognize and answer is whether the business model of owning and utilizing trademarks to limit competition over services around OpenSource software is a valid one. This is such an important issue, of which the case explained here is an example of, that we thought it would benefit all who wants to consider this issue to know as much as possible about it. This is why we have chosen to publish the information that is available as a blog, and will continue to update it as long as is necessary. As already stated, the intent of the creators of this blog is that these issues will be resolved, and this blog discontinued. Every second it continues to exist is, indeed, a failure for us as a community.

So there you have it. These are our intentions for doing this. Nothing more, and perhaps more importantly, nothing less.

sincerely,
Rickard Öberg

Friday, October 07, 2005

Free Open Source Software (FOSS) and Trademarks / Servicemarks: The JBoss case

I saw a lot of discussions going on how FOSS should be and how FOSS shouldn't be but I only read occasionally about the implications a trademark might have to FOSS. Most of the discussions deal with GPL/LGPL stuff which is most important, no doubt. You might check this: http://www.theserverside.com/news/thread.tss?thread_id=36156#182919.
But only a few care about the effects a registered trademark/servicemark has and I assume most of the contributors, developers, architects of FOSS don't care about it.

So what do I say?
Have a look at JBoss, they own the trademark/servicemark 'JBoss'. That's no surprise, they announce it everywhere on their website and Bill Burke - the chief architect of JBoss - mentioned it as the most important thing to have (see: http://www.theserverside.com/news/thread.tss?thread_id=35156)
What they do not announce is, what this trademark exactly stands for or implies. Checked against the Office for Harmonization of the Internal Market, which is an EC-wide registration authority (http://oami.eu.int/CTMOnline/RequestManager/en_DetailCTM) you will find under the trademark of JBoss the following:

Nice Classification: 9
Computer software, in particular enterprise server software for web application development and deployment, database connectivity, transaction processing, presentation and directory services.
Nice Classification: 41
Technical support services related to Computer software, in particular training in and troubleshooting of problems with enterprise server software for web application development and deployment, database connectivity, transaction processing, presentation and directory services.

This clearly says, that everyone has to be allowed to provide services according to classification 41 above under the trademark of JBoss by Marc Fleury as owner personally. Surprisingly (and in contrast to the US) Marc Fleury holds the trademark personally, not JBoss Inc., not JBoss (Europe) S.a.r.l. in Switzerland.

Well, registering a trademark for the "product" JBoss is one thing, registering all services is something different. I personally do not believe that Marc Fleury will grant the right of usage to everyone for free as it affects his money-making partner-/ service-model.

Let's have a look at this model. To get the right using Jboss as trademark, you have to have a license for this. Becoming a partner might be something you should consider; you are right, if you expect this not to be granted for free. You have to pay for it and you have to certify your employees (to my knowledge dependant on the level of partnership, at least four). Take my hint: ask them about prices and simply compare them to other vendors.
This looks like a money machine for JBoss, but no one cares for successful companies making money out of products, so do I.

Anyway: You are not allowed to conduct trainings or to offer support under the trademark "JBoss" regardless you're a partner or not! This is allowed for a few chosen ones, you do not have any influence on it or even could buy it.

What are the individual consequences of this?

Anyone offering a service dealing with the registered trademark must be aware of breaching laws and must be ready to take the consequences. These consequences according to the law of country I reside:
(1) claim for damages
(2) penalty in case of recurrence of abuse (trademark holder determines how much)
(3) reporting customers and revenues to trademark holder
(4) Obviously you have to stop it regardless what that means to your customer.

One could say, the law allows to use the trademark in descriptive ways. This is true but you have to defeat yourselves against accusation; maybe case-by-case. Without doubt that will cost you time, money and perhaps reputation (what will your customers think about this ?). Once you are faced with a preliminary injunction you are in trouble, if you imprudently or precipitously sign something you are out of the business forever!
Once a trademark is introduced the trademark will get stronger and stronger, direct implication: harder and harder for you to defeat yourself even in terms of descriptive usage!

Strong stuff, isn't it. So be aware!

Make up your mind, how to offer anything without using the letters J+b+o+s+s commercially assumed you run a service company? In contrast LGPL states, that FOSS is free to distribute; in this case it might mean distribution without naming it.

What are the general consequences of this?
In my opinion and according to what I have learned at university (holding a degree in BA) there is a word for this: monopoly!
It sounds hard and vicious to compare them to a monopoly but to my opinion, they might be on their way.
Most people would agree to consider a monopoly as something harmful for the market, no doubt. Companies coming close to a monopoly in most cases have a bad reputation.
Registering a trademark for a product (you might not own: see the copyright / licensing discussions in terms of JBoss actually going on) is a known trick (ask your lawyer if you don't believe) to keep competition offside the business.
It happened frequently within my home country to be bothered with letters from advocates, enforcing you to stop this-or-that, paying some penalty and opposite lawyer’s fee to get rid of them and so on.

Who trusts/guarantees a venture capitalized FOSS company will not to act this way; in other words is someone out there who could say, they will not act this way, blowing away competitors by using their trademarks?
Additionally a lot of coding is done by volunteers which gives a clear competitive advantage regardless of the fact that they have hired a few of the volunteers over the last two years. Does the rest of them know what is going on / might go on and agrees?

Anyway, granting licenses to only a few restricts competition, period.
And remember: We are talking about FOSS!

Coming to an end / (personal) conclusion:
1. JBoss AS is a good product, a lot of people / companies are using it and like to use it.
2. But choosing JBoss in commercial areas might mean uncertain license and copyright issues and to my knowledge (I'm not a lawyer, ask yours !) their indemnification does NOT work within EC.
3. Selecting your vendor in terms of services might limit you to only a few with a fixed pricing model, the other ones might be not allowed to compete.
4. Download JBoss for free, use it, develop some mission-critical things. If you run into a knowledge / support problem you might be bound to them (or licensed partners which has no effect on the price as they are probably fixed by contract)!
5. Finally: There is nothing bad in earning money with FOSS, Competition is vital, let the market decide (and not trademarks).


Disclaimer: I’m not a lawyer, nor do I intend to give legal advices. Although everything was discussed with my lawyer, my only intention is giving you food for thought. I'm only reflecting my personal opinions, not speaking for anyone aside myself. To the ones considering this blog harmful: freedom of opinion is guaranteed! You might have another and are invited to discuss.


Lastly: I love my family, I don't want to be loved by Marc Fleury although he mentioned it within every newsletter he sent me.

Sincerly,

Karin-Ulrike Ledwon

Open Letter to JBoss Inc. / JBoss (Europe) S.a.r.l. / Marc Fleury

If you want to signup as well please drop an email. We will add your signature.

The subscriber hereby states, that he is convinced of:


  1. Abusive enforcement of trademarks with regard - but not limited to services - in terms of Free Open Source Software (FOSS) is harmful to fundamental ideas behind FOSS.
  2. Lack of proper copyright notices and disclaimer warranties as is stated and required in the LGPL affects the intellectual properties of all volunteers working on FOSS.
  3. Confidence in valid licenses is of utmost importance for business in areas of FOSS.


The Subscriber therefore requests JBoss Inc. and for all projects hosted by JBoss Inc., including but not limited to, the JBoss Application Server, Hibernate, JBossCache, and JBoss Portal to:

  1. Not to consider abusive enforcement of law on the registered trademark to gain any competitive advantages.
  2. Respect the copyrights of everyone developing for JBoss Inc. and for all projects hosted by JBoss Inc., including but not limited to, the JBoss Application Server, Hibernate, JBossCache, and JBoss Portal; in the past, present and in the future.
  3. Do whatever it takes to remedy license issues as confidence in valid licenses is of utmost importance for everyone - company or individual - using FOSS.

I realize that this will be a difficult task, considering that most JBoss projects have been developed by a number of individuals over an extended period of time, thus assigning different copyright to each individual source file. I am however confident that JBoss Inc.
realizes the seriousness of the situation and finds creative ways to remedy this.


Signature (sign by email)

Konstantin Pribluda: Freelance software developer
Co-Author of XDoclet, Pico/Nanocontainer.

Prof. Dr. sc. tech. Manfred Grauer: Head of the Information Systems Institute at the Faculty of Economics of the University of Siegen / Germany

Prof. Dr. Michael Bernecker: FHDW University of Applied Sciences

Jr. Prof. Dr. Ing Thomas Barth: Information Systems Institute at the Faculty of Economics of the University of Siegen / Germany

Dirk Brockhaus: CEO Brockhaus AG, Chairman Networkers North Rhine-Westphalia e.V., Member Secure-IT Advisory Board to Ministry for the Interior North Rhine-Westphalia

Bernd Oestereich: Managing Director of oose.de, Author

Frank Pestke: Freelance J2EE Developer

Stefan Tilkov: Managing Director of innoq (see his Blog)

Andreas Schaefer: former JBoss contributor (see his Blog)

Hugo Pinto: Software Researcher, ex JBoss developer

Dr. Wolfgang Schneider: Sr. J2EE Architect

David Garcia Alonso: EITEC Sistemas

Frank Schmidt

Matthias Meier:
General Manager Digital Alchemists GmbH, Switzerland

Bill Bohlmann

Masroor Ahmad: Software Developer

Karsten Thoms: Sr. J2EE Architect, itemis GmbH & Co KG

Ashutosh Tripathi: T-Mobile International

Thorsten Neumann: Sr. Consultant, Cirrus GmbH

Jens Wagener: Managing Director, itemis GmbH & Co KG

Wolfgang Neuhaus: CEO, itemis GmbH & Co KG


Obviously:

Karin Ulrike Ledwon: journalist

Rickard Öberg:
co-founder of JBoss


Matthias Bohnen: Managing Director of Brockhaus GmbH, Assistant Professor and Member of JBoss Academia Program

The JBoss Issue

The EJBoss project was founded in 1999, which is now generally known as JBoss. JBoss was from the beginning an effort aimed at providing the core infrastructure needed when implementing enterprise scale systems based on the Java EE specifications. The project has been widely successful, and has been adopted by many different organizations and companies around the world. It is also one of the main examples of how OpenSource solutions can compete with commercially licensed servers in a space where innovation and community is vital.

The idea was to make something freely available which would typically have been attainable only by companies and organizations with a large wallet. The creation of such a core piece of technology, which fuels the very hearts of IT-systems both large and small, using the OpenSource licensing and development environment, was something that many of us found very attractive. I was a student at the time, and this also gave me personally a learning experience that would have been more or less impossible to achieve otherwise. To be a part of something so great was a privilege and honor.

When Marc Fleury founded the JBoss Group, and later JBoss Inc., I had initally hoped that we shared the same views of what our work was all about. As the development progressed I later realized that we did not share the same view of OpenSource and open collaboration, and I decided to quit the project and company and move on to other things. This was not an easy decision to make, and I always hoped that good things would come out of it.

I was quite happy with moving on to other exciting projects, some of which even used JBoss as its foundation. I was, as it were, a happy user of the JBoss application server, which helped me see the other side of things. What then happened is now commonly known as the "Fake JBoss" issue. Individuals who expressed and brought forward issues with JBoss, both on technical and personal levels, were being harassed in various online forums. It got to such a level that I and a number of other people got curious about it, and decided to find out what was going on. It was much to our surprise that it turned out that it was top executives and developers of JBoss Inc. who were behind these fake personas. It is one thing to have different opinions about various issues, but it is another thing entirely to use faked identities, complete with names and company affiliations, and behave in such a way. As strange as it looked, the evidence were quite compelling, and yet a formal apology for this behaviour was never issued by JBoss Inc. In their defense they did apologize for something completely different, which is better than nothing I suppose.

Which brings us to today, and the reason for the creation of this blog. It is with great sadness that it has come to my attention that JBoss Inc. has gone quite insane in how they conduct business. They have cancelled the partnerships with a majority of the German service provider companies, sued at least one of them for using the "JBoss" name, and tried to acquire and use the customer list of said companies. This is so far beyond acceptable business conduct, on so many levels, that I, and the other individuals behind this blog, have decided to provide a place where information about this situation can be provided in a cohesive and complete manner.

The use of trademarks, which in the case of "JBoss" covers both the product and any related services, to stifle competition is a practice which very much defeats the purpose of OpenSource and FOSS, and is designed to create a monopoly situation whereby only JBoss Inc. and partners can offer such services, coupled with a pricing strategy that is quite aggressive and far from "free". Even most commercial vendors do not limit service companies to use the name of products to offer services, but somehow JBoss Inc. feels that this is a viable way to gain a business advantage. OpenSource is supposed, I believe, to be about collaboration and fair competition, not about who happened to get the trademark registrated first. It's not good for customers, and it is not good for the overall business ecology.

In addition to this issue, there is also the fundamental problem of licensing of JBoss. It has come to my attention that while the JBoss project references the LGPL license, the license does not and can not apply to JBoss since it does not meet the prerequisites of the license. This includes, but is not limited to, the complete lack of proper copyright notices as is stated and required in the LGPL, section 1. This understanding has been checked and verified with the Free Software Foundation (FSF), who owns the LGPL license. In short, it is currently illegal to distribute JBoss because it does not have a valid license. The copyright ownership of JBoss is also quite messy, since it has been written by a large number of people over a large period of time, and there is no explicit copyright mentioned anywhere in the code. It will hence be quite difficult to resolve this issue, even though we really do hope that this is accomplished somehow. To have one of the main examples of FOSS be illegal is not a good thing. This issue applies to not only JBoss, but also other projects hosted by JBoss Inc., which includes, but is not limited to, Hibernate. We would all like to continue to use all of these excellent projects, so to have these problems fixed is in everyones interest.

Apart from providing the information and timeline related to all these issues, the blog will also have a status meter that shows the current situation with regard to the central problems mentioned. This blog will be continue to be updated as long as one or more of these issues are still unresolved.

We encourage any other individuals and/or companies who are in similar situations with regard to JBoss Inc. to send us whatever related information they have available. It will be published here, anonymously if required, so that the full scope of this situation can be known.

sincerely,
Rickard Öberg