OPEN-SOURCE SOFTWARE
Te browser war of the 1990s involved soſtware developers Microsoſt and Netscape leading the race for a dominant share of the web browser market. Tey continuously offered feature-rich updates to their browsers. Microsoſt, the eventual victor, had the advantage of being able to distribute Internet Explorer with the Windows operating system. Microsoſt’s development team was also larger than Netscape’s and the other, smaller, lesser-funded soſtware companies active in the market.
Netscape was taken over by AOL at end of 1998 and was slowly disbanded. Te Netscape domain is still in use as an information portal, and old versions of Netscape browsers are still available to download, but they are no longer updated or supported by AOL. Te company did not substantially invest in Netscape browsers. Instead, the Mozilla Foundation was established in 2003 to develop open-source alternatives to proprietary soſtware, extending the original mission from the development of a single browser. AOL helped to establish the Mozilla Foundation by contributing financially and transferring all intellectual property rights relating to Netscape’s original project to the Mozilla Foundation. Mozilla relies heavily on its community of developers who helped to produce the Firefox browser, which today has the second-largest share of the web browser market and has been translated into more than 70 languages around the globe.
Harvey Anderson, vice president of business affairs and general counsel at Mozilla Corporation, manages the legal affairs of Mozilla’s mission. It highlights that the valuation of intellectual property can be a subjective exercise.
He says: “We measure the value of Mozilla’s intellectual capital in terms of our influence and impact rather than by traditional metrics. It reflects the contributions of tens of thousands of people around the world who share a common vision of an open web that fosters innovation and choice for users. As a mission-based, public- interest organisation, its value is best measured by the influence on the character of the web ecosystem and the experience of individual users as they use the Internet to conduct their affairs in a digital world.”
Mozilla Corporation, a wholly owned and taxable subsidiary of the Foundation, develops, publicises and distributes Mozilla products on behalf of the Foundation, which is a not-for-profit organisation. Contributions are made to the group as a whole through the Mozilla Corporation. Te Mozilla Foundation and its subsidiaries reported revenues of $79 million in 2008. Te majority of this revenue came from a partnership with
“ WE MEASURE THE VALUE OF MOZILLA’S INTELLECTUAL CAPITAL IN TERMS OF OUR INFLUENCE AND IMPACT RATHER THAN BY TRADITIONAL METRICS. IT REFLECTS THE CONTRIBUTIONS OF TENS OF THOUSANDS OF PEOPLE AROUND THE WORLD WHO SHARE A COMMON VISION OF AN OPEN WEB THAT FOSTERS INNOVATION AND CHOICE FOR USERS.”
Trusting an open-source brand is not about the consumer’s choice between the poorer or even superior modified alternatives on offer. It is about what is done to ensure the branded products keep their own identity. In the article, Anderson said: “Te legal test is not whether the quality is high or low—it is whether the trademark owner exercises control to ensure that quality is consistent.”
Trademark policy at Mozilla encourages brand engagement. Mozilla has formed a mutually beneficial relationship with its users, allowing its soſtware to be changed beyond its control while also requiring its trademarks to be respected. Tis is to ensure a continuing and distinct brand that remains intact for the benefit of the unchanged soſtware bearing its name.
Anderson says: “We encourage the lawful and licensed use, but not abuse, of our trademarks in connection with the unmodified versions of the products that we make available. We want users to engage the brand that they’ve helped create. To facilitate this, we’ve made available extensive guidelines on our website that describe how to use the mark properly and under what conditions.”
Google—set to expire in 2011—that, amongst other things, allows the search engine to feature as the default on the Firefox browser.
Ensuring the quality of Mozilla’s soſtware is paramount. An individual’s experience of using the soſtware can be voiced through the collaborative community dedicated to developing the soſtware. Mozilla develops its soſtware in the open so its brand must represent the versions of the web browser soſtware that it releases and approves, while ensuring that others can modify, compile and release their own browsers from the same code base.
Consumers, according to Anderson, believe a brand represents a set of values and functions essential to distinguishing the source of a product. He says: “In the open-source world, whether the brands are formal trademarks or merely source identifiers, they serve a vital role in differentiating products and facilitating user trust.”
Maintaining the Mozilla brand in an open-source environment is essential to forming a trustful relationship between company and consumer. A trademark owner should exercise the opportunity to control the quality of a freely available product, according to an article Anderson co-wrote called Passport without a Visa: Open Source Soſtware Licensing and Trademarks, published by the International Free and Open Source Soſtware Law Review in December 2009.
14 World Intellectual Property Review September/October 2010
Significant functional changes may be made to Mozilla’s products, according to the guidelines, as long as the modified version is not redistributed under any Mozilla trademark without prior written permission. Inappropriate examples are also provided to guide users away from accidental trademark abuse. Te words “based on Mozilla Firefox” cannot accompany a modified version of the Firefox web browser; instead, the guidelines recommend a “based on Mozilla technology” logo for the redistribution of modified soſtware.
But as any company will say, sophisticated strategies on their own never completely remove the threat of infringement. Mozilla’s trademarks are no different.
Anderson says: “Websites sell the Mozilla Firefox browser, using the Mozilla trademarks to promote other products and services. Elaborate and extensive fraud schemes are used to dupe users into credit card subscription traps, or malware is embedded in downloaded soſtware that is passed off as the Mozilla Firefox browser. Tis is not uncommon practice and affects the majority of legitimate companies operating over on the web. Unlike the more benign case of a fan misusing the marks, these activities are intentionally deceptive, they can harm users and they compromise the meaning of the Mozilla brands.”
Mozilla tries to differentiate between intentional and accidental infringement. Te consequences of the infringement are a good indicator of
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