JBoss Accused of Monopolistic Practices
Rickard Öberg, a co-founder of JBoss, has recently started a blog called The JBoss Issue, where he lists 4 issues with how JBoss, Inc is managing the codebase of the JBoss application server:
- Missing copyright notices
- Invalid license
- Illegal distribution
- Abuse of trade/service mark
[Update appended on 10/17/2005]
He says that copyright notices are not written at the top of files, and with so many contributors, the copyright is not assigned to one entity. Without proper copyright notice, he says the license is invalid, which makes the distribution of the software illegal. The most serious accusation is that JBoss is abusing a service mark registered to cover services around their product. From his blog, he says:
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.
Interestingly, JBoss recently announced a partnership with Microsoft to increase interoperability. Is this getting some people nervous? 
It is true that only the copyright owner can set the license for the source code, and so multiple owners must all agree if the license is to change. Many projects require that you donate your copyright so the code can exist under one owner. But if a copyright notice is not stated, an implied copyright is in effect. However, it is much stronger if you state the copyright. The FSF recommends that you put a copyright notice at the top of every file, in fact. As a requirement for the license, it says:
You may copy and distribute verbatim copies of the Library’s complete source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty
Since one copyright notice for the source distribution seems to satisfy this requirement, the JBoss source code is probably a valid license and distributed properly.
So what about the abuse of the service mark? It’s common for a software vendor to own a service mark for protecting its customers. (If I order “Stanley Steemer” service, and some guy cleans my carpets with a shop vac, a customer gets hurt.) Consulting firms must meet criteria and pay a fee to become a “partner” which allows them to use the name in their services, like a “Microsoft Partner” or “Red Hat Partner”. The vendor has the discretion to retract partnerships. If you don’t have the right to use a service mark, you can still perform the services, but you can’t call it the same thing. (I can provide dry cleaning services, but I can’t call it “Martinizing”.)
I’m not discounting that monopolistic practices could be at play, but I’d like to hear more details. Until then, it sounds like business as usual. As more open source companies become commercially successful, we could be seeing more conflicts like this. Tread carefully, startups!
[Update 10/17/2005]
Rickard wrote me to point out that the issue is that the JBoss mark covers both the product and the company’s services by the same name. In other words, if someone provides “JBoss training” then it could be interpreted as infringement of the mark. He gave an example of BEA using Weblogic as a product name that is distinct from the company to avoid this problem.
It’s a good point, but I don’t think the JBoss mark is an issue, and here’s why. There is something called fair use of a trademark which allows you to use it without the owner’s permission in certain contexts. Generally, as long as you don’t imply sponsorship, affiliation, or endorsement with the owner, you can use the mark. To make it clear whose mark it is, you need to show the TM (for trademark), SM (for servicemark), or R (for registered mark) symbol, and include a trademark notice of the ownership. So, it’s okay to say you provide “JBoss training” as long as it’s clear you have nothing to do with the source of JBoss.
Companies like Microsoft usually spell this out for you. Red Hat went even further than fair use alone and granted limited use of the Fedora trademark when distributing exact copies of their software.
Marc Fleury, the other co-founder of JBoss, has denied that they are abusing the mark:
We’re not talking about open brand here, this is open source. Companies can say they’re offer training and consulting for JBoss. What they cannot do is use the JBoss trademark in their brand name. A lot of people offer support for JBoss without being a partner.
It’s nice to hear him say this, and I’d like to see JBoss post a trademarks page, like other companies do, to make the stance clear. I hope this is true and the report of a consulting firm being sued had other circumstances around it (such as marketing a partnership that did not exist). I also hope JBoss is careful to play nicely in the business community as well as the developer community. And if not, well … we always have Geronimo.