Post Syndicated from Bradley M. Kuhn original http://ebb.org/bkuhn/blog/2014/11/11/groupon.html

[ I’m writing this last update to this post, which I posted at 15:55
US/Eastern on 2014-11-11, above the original post (and its other update),
since the first text below is the most important message about this
siutation. (Please note that I am merely a mundane GF member, and I don’t
speak for GF in any way.) ]

There is a lesson learned here, now that Groupon has (only after public
admonishing from GNOME Foundation) decided to do what GNOME Foundation
asked them for from the start. Specifically, I’d like to point out how
it’s all too common for for-profit companies to treat non-profit charities
quite badly, even when the non-profit charity is involved in an
endeavor that the for-profit company nominally “supports”.

The GNOME
Foundation (GF) Board minutes are public; you can go and read them. If
you do, you’ll find that for many months, GF has been spending substantial
time and resources to deal with this issue. They’ve begged Groupon to be
reasonable, and Groupon refused. Then, GF (having at least a few
politically savvy folks on their Board of Directors) decided they had to
make the (correct) political next move
and go
public.

As a professional “Free Software politician”, I can tell you
from personal experience that going public with a private dispute is always
a gamble. It can backfire, and thus is almost always a “last
hope” before the only other option: litigation. But, Groupon’s
aggressive stance and deceitful behavior seems to have left GF with little
choice; I’d have done the same in GF’s situation. Fortunately, the gamble
paid off, and Groupon caved when they realized that GF would win —
both in the court of public opinion and in a real court later.

However, this tells us something about the ethos of Groupon as a company:
they are willing to waste the resources of a tiny non-profit charity (which
is currently run exclusively by volunteers) simply because Groupon thought
they could beat that charity down by outspending them. And, it’s not as if
it’s a charity with a mission Groupon opposes — it’s a charity
operating in a space
which Groupon
claims to love.

I suppose I’m reacting so strongly to this because this is exactly the
kind of manipulative behavior I see every day from GPL violators. The
situations are quite analogous: a non-profit charity, standing up for a
legal right of a group of volunteer Free Software developers, is viewed by
that company like a bug the company can squash with their shoe. The
company only gives up when they realize the bug won’t die, and they’ll just
have to give up this time and let the bug live.

GF frankly and fortunately got off a little light. For my part, the
companies (and their cronies) that oppose copyleft have called me a
“copyright
troll”, “guilty of
criminal copyright abuse”, and also accused me of enforcing the
GPL merely to “get rich” (even though my salary has been public
since 1999 and is less than all of theirs). Based on my experience with
GPL enforcement, I can assure you: Groupon had exactly two ways to go
politically: either give up almost immediately once the dispute was public
(which they did), or start attacking GF with dirty politics.

Having personally often faced the aforementioned “next political
step” by the for-profit company in similar situations, I’m thankful
that GF dodged that, and we now know that Groupon is unlikely to make dirty
political attacks against GF as their next move. However, please don’t
misread this situation: Groupon didn’t “do something nice just
because GF asked them to”, as the Groupon press people are no doubt
at this moment feeding the tech press for tomorrow’s news cycle. The real
story is: “Groupon stonewalled, wasting limited resources of a small
non-profit for months, and gave up only when the non-profit politically
outflanked them”.

---

My original post and update from earlier in the day on 2014-11-11 follows
as they originally appeared:

It’s probably been at least a decade, possibly more, since I saw
a a proprietary software company
attempt to take the name of an existing Free Software project. I’m
very glad GNOME Foundation had the forethought to register their trademark,
and I’m glad they’re defending it.

It’s important to note that names are really different from copyrights.
I’ve been a regular critic of the patent and copyright systems,
particularly as applied to software. However, trademarks, while the system
has some serious flaws, has at its root a useful principle: people looking
for stuff they really want shouldn’t be confused by what they find. (I
remember as a kid the first time I got a knock-off toy and I was quite
frustrated and upset for being duped.) Trademark law is designed primarily
to prevent the public from being duped.

Trademark is also designed to prevent a new actor in the marketplace from
gaining advantage using the good name of an existing work. Of course,
that’s what Groupon is doing here, but Groupon’s position seems to have
come from the sleaziest of their attorneys and it’s completely disingenuous
Oh, we never heard of GNOME and we didn’t even search the trademark
database before filing. Meanwhile, now that you’ve contacted us, we’re
going to file a bunch more trademarks with your name in them. BTW, the
odds that they are lying about never searching the USTPO database for GNOME
are close to 100%. I have been involved with registration of many a
trademark for a Free Software project: the first thing you do is search the
trademark database. The USPTO even provides a public search engine for
it!

Finally, GNOME’s legal battle is not merely their own. Proprietary
software companies always think they can bully Free Software projects.
They figure Free Software just doesn’t matter that much and doesn’t have
the resources to fight. Of course, one major flaw in the trademark system
is that it is expensive (because of the substantial time
investment needed by trademark experts) to fight an attack like this.
Therefore, please donate to the GNOME
Foundation to help them in this fight. This is part of a proxy war
against all proprietary software companies that think they can walk all
over a Free Software project. Thus, this issue relates to many others in
our community. We have to show the wealthy companies that Free Software
projects with limited resources are not pushovers, but non-profit charities
like GNOME Foundation cannot do this without your help.

Update on 2014-11-11 at 12:23 US/Eastern:
Groupon
responded to the GNOME Foundation publicly on their
“engineering” site. I wrote the following comment on
that page and posted it, but of course they refused to allow me to post
a comment⁰, so I’ve posted my
comment here:

If you respected software freedom and the GNOME project, then you’d have
already stop trying to use their good name (which was trademarked before
your company was even founded) to market proprietary software. You say
you’d be glad to look for another name; I suspect that was GNOME
Foundation’s first request to you, wasn’t it? Are you saying the
GNOME Foundation has never asked you to change the name of the product
you’ve been calling GNOME?

Meanwhile, your comments about “open source” are suspect at
best. Most technology companies these days have little choice but to
interact in some ways with open source. I see of course, that Groupon has
released a few tidbits of code, but your website is primarily proprietary
software. (I notice, for example, a visit just to your welcome page at
groupon.com attempts to install a huge amount of proprietary Javascript on my
machine — lucky I use NoScript to reject it). Therefore, your argument
that you “love open source” is quite dubious. Someone who loves
open source doesn’t just liberate a few tidbits of their code, they embrace
it fully. To be accurate, you probably should have said: We like open
source a little bit.

Finally, your statement, which is certainly well-drafted Orwellian
marketing-speak, doesn’t actually answer
any of the points the GNOME Foundation raised with you. According to the
GNOME Foundation, you were certainly communicating, but in the meantime you
were dubiously registering more infringing trademarks with the USPTO. The
only reasonable conclusion is that you used the communication to buy time to
stab GNOME Foundation in the back further. I do a lot of work
defending copyleft communities against
companies that try to exploit and mistreat those communities, and yours are
the exact types of manipulative tactics I often see in those
negotiations.

---

⁰While it’s
of course standard procedure for website to refuse comments, I
find it additionally disingenuous when a website looks like it
accepts comments, but then refuses some. Obviously, I don’t think
trolls should be given a free pass to submit comments, but I
rather like the solution of simply full disclosure: Groupon
should disclose that they are screening some comments.
This, BTW, is why I just use a third party application (pump.io)
for my comments. Anyone can post. 🙂