My response to Cory’s response….
Even though there are FAR more important things to talk about, I’d like to officially respond to BoingBoing’s Cory Doctorow’s response regarding O’Reilly sending a C&D to my friend Tom Raferty.
1. Cory says: “The dispute seems to have been resolved amicably” - puuuuleeeeeze! Just go read what Tom has to say about that! I wouldn’t say its resolved - at all. This just makes Cory - who has my highest respect and is one of the TOP spokesman for our world - just look silly.
2. Cory does close with a nice statement - which hopefully clues us all into the NEXT time we jump on some buzzword du jour, like Ajax or Desktop Publishing. Marketing terms have little or nothing to do with reality. They are used to explain complex ideas to normal people. So my term “digital lfiestyle aggregation” is nothing more than my attemnpt at explaining ideas I’ve had cursing me - since the early 90’s. Some people call it ‘Personal Infoclouds’ - others ‘dashboards’. Whatever. But don’t turn these terms into religion and debate their existence. That’s what’s happened to Web 2.0. Old timers like me can see through this bullshit. Its time that everyone else woke up to this - as well.
3. Tom just had a kid. Leave him alone for no other reason then he’s staying up all night, being a dad!
4. I’d like to hear Cory’s comparison of the copyright and DMCA laws versus trademark laws. How are they similar? How are they different? I’m searching my brain for how it’s different that a creative person can copyright their work (with all sorts of CC licenses, DMCA repercussions, DRMs attached, bullshit implied) and be told “sorry - I can copy this and not pay you” - while Cory doesn’t seem to find any fault in a trademark system which wishes to ‘protect” somebody’s OWNERSHIP of a term - such as Web 2.0. I find these two legal issues - VERY similar - myself. Is it the free market place that rules or government? How much do you respect law? Cause if you disrespect copyright but embrace trademark - well isn’t that just a tide bit - shall I say - weird? Sure we can’t go around murdering people or stealing their shit, but stealing copyrighted materials seems very similar to encroaching on somebody’s trademark. No?
5. Perhaps Denise Howell could weigh in on that one - as well.
6. First thing that jumped out at me - as I clicked on the ‘permalink’ button to get the URL of this post: “who owns the term permalink?” Any C&D’s sent out on that one?
7. Cory sure likes O’Reilly - that’s for sure. He uses terms like “creating amazing, industry-shaking ideas” and “amazing, wonderful gift for popularizing hard ideas and for explaining abstruse technology in catchy ways”. But I think he’s missing the point here. This is not about what O’Reilly has done, but what Tom Raferty wants to do. And O’Reilly’s company is fucking with him. Tom’s group is a non-profit - and O’Reilly is a company which can afford LAWYERS to send out C&Ds.
8. Probably the MOST disingenuous part of Cory’s response is the statement: “The downside of creating amazing, industry-shaking ideas is that they become embedded in the popular consciousness.”
WRONG!
I’m sorry Cory - that’s complete bullshit and or just a completely naive statement. You know as well as I do that the UPSIDE of creating popular terms is that you get to MONETIZE THEM! HELLO! Conferences, books, magazines, speaking engagements, investments, schmoozing! How much MONEY has Tim O’Reilly made off of Web 2.0?
GIVE ME A FUCKING BREAK!
To say that poor Tim has to suffer the horrible downside of his cute little term - well as Dave says - it has something like 79,400,000 hits! Hell, we can just round that off to 80M hits! What a horrible suffering fate O’Reilly has to bear!
9. Cory closes with:
The O’Reilly Conferences’ unique selling proposition is that they rewrite the rules of the industry and coalesce meaning out of the stew of ideas floating around the field. If you’re going to name the next direction the world will take, you have to be prepared for the world to take that direction. Industry shifts become public property — or rather, things that are privately controlled can’t shift a diverse industry.
That means that O’Reilly needs to choose whether it’s going to retain control the word “Web 2.0″ for conferences, or retain control over the shifts that created the Web 2.0 phenomenon.
I think being able to call the shots is more important than being able to own those calls.
. which is the proper thing to say - so thank you Cory - for that.
10. The fact that Cory didn’t link to me, or Tom or any of the other criticism - I think plays his card out truthfully. What I wished was that Coiry would say “I’m on Tim and Batttelle’s side on this one” and just be done with it. He does make some good arguments for ‘fair usage’ - which is great. I just wonder why he doesn’t mention the shit storm, or my public demand for a response from him.
Blogging is about linking - that’s certainly one thing we don’t have to tell Cory Doctorow. And by Cory NOT linking…. well that says one thing - he either doesn’t respect us or me, care for us or believe in us. Oh well.
I still dig BoingBoing.
May 27th, 2006 at 11:01 am
You da man. And while you at it, tell Corey how Tim didn’t actually come up with all the ideas behind Web 2.0. Ask Corey how he feel bout dat zumtime. I’ll be back.
May 27th, 2006 at 12:19 pm
[…] I keep trying to form an opinion on this whole O’Reilly thingy… I’m tempted to go with Marc, but the Mules seem to have captured most of how I feel about how the vitriolic response was a bit out of proportion with the shortsighted stupidity of the lawyers. […]
May 27th, 2006 at 4:35 pm
Here are some thoughts I hope are responsive and might help the discussion.
Trademark is more about identity than is copyright. Trademark law is deeply bound up with the concept of confusion. It thus encompasses things like cybersquatting and typosquatting.
It’s harder to get a trademark or a service mark (http://en.wikipedia.org/wiki/Service_mark) than it is to get a copyright (which is automatic for copyrightable works). Marks must be used, enforced, and ideally registered (though it’s possible to have “common law” trademark rights, as I understand it registration makes things more straightforward on the enforcement front). You don’t necessarily have to tout or enforce a copyright in order to keep it. Wikipedia compares/contrasts tradmark law, patent law, and copyright law here: http://en.wikipedia.org/wiki/Trademark#Comparison_with_patents.2C_designs_and_copyright
A term that is generic or merely descriptive isn’t protectable as a trademark or service mark; this is what Cory is referring to when he says he’s not sure there is a trademark here. Genericness is somewhat analogous in the trademark area to prior art in the patent area — if it’s already out there, you don’t even get to pass “Go.” Marks can also *become* generic over time, which is why businesses with products so popular they’ve become verbs — Google, Photoshop, etc. — wind up having to write letters that can seem petty and get them laughed at. If you let something become generic without kicking and screaming about it, you may be in trouble as far as keeping your mark. (Sez Wikipedia: “Such efforts may or may not be successful in preventing genericism in the long run, which depends less on the mark owner’s efforts and more on how the public actually perceives and uses the mark. In fact, legally it is more important that the trademark holder visibly and actively seems to attempt to prevent its trademark from becoming generic, regardless of real success.”)
Just as mark owners need to be vigilant about genericness, they need to be vigilant about trying to prevent infringement. Failure to enforce the mark can ultimatlely mean losing it. O’Reilly/CMP thus are in a sort of damned-if-we-do-damned-if-we-don’t position. They believe they have an enforceable mark (though as you, Cory, and Dave Winer point out, that may be debatable), and the only thing you can really do in that situation is try to enforce the mark if someone tries to attach it to similar services. Your point is well taken — and conceded by O’Reilly — that firing off C&D’s between co-Netizens is likely not the most diplomatic or productive way to open a dialogue on the subject. If someone (not Marc Canter) were to decide this digital lifestyle aggregator concept is where it’s at, and started a business called “Broadband Mechanics” to offer those kinds of services, you’d want to have words with them. You’d probably kick off the discussion a little differently — you’d no doubt blog it ;). But you’d have little choice but to resort to lawyers and legal process if the schmucks dug in and decided to be stubborn about it.
So, to circle back to my original point, trademarks and service marks are about business identities. They are supposed to be distinctive; if they’re merely descriptive or generic, they may not be enforceable. (See Wikipedia: “A descriptive mark is a term with a dictionary meaning which is used in connection with products or services directly related to that meaning. An example might be Salty used in connection with saltine crackers or anchovies. Such terms are not registrable unless it can be shown that distinctive character has been established in the term through extensive use in the marketplace.) If Tom and IT@Cork are wedded to using the term in the title of their event (and/or sufficiently ticked off about this thing), they should get a trademark lawyer on board to research their rights and advise them specifically. Could be they have something to talk about.
May 29th, 2006 at 11:07 pm
[…] Denise Howell also left a thoughful comment which points out that I wouldn’t be too pleased if someone started calling themselves Broadband Mechanics - one day. But this isn’t that sort of situation. […]
May 30th, 2006 at 10:13 am
Cory Doctorow’s already spoked at a non-O’Reilly, non-CMP ‘Web 2.0 Conference’, in Brighton in the UK. Here’s the site:
http://www.clearleft.com/dconstruct05/
May 30th, 2006 at 12:30 pm
Cory posted a well written piece, where he makes some good points, and tries very hard to walk a strait line… But not with all that Foo Camp Kool-Aid on-board! His fan-boy intoxication (and perhaps conflicts-of-interest) were really showing.
I was very disappointed. Sounds like he just talked to John B or someone, heard it was “all settled” and incorrectly reported that, without checking. When he posted, most people following the story were aware that the issue had not been “resolved amicably” and permission had not yet been “granted” as Cory incorrectly reported.
It’s a shame that O’reilly’s corporate culture isn’t robust enough to guide them through a more reasonable course of action while Daddy’s gone. The C&D letter was an unfortunate, but understandable as a mistake. However, O’reilly’s rude, clumsy, and ham-fisted response, shocked us all, as it seemed to contradict the basic principles of Web 2.0. This leaves many of us wondering if these people have any real clue about what it is they are hyping.
It’s now late Tuesday afternoon Eastern Time. Where’s Daddy?
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