My colleague Chris "Factoryjoe" Messina writes an interesting, though somewhat disjointed article on what he calls Community Marks. The idea seems to be, because Trademark "licensing and enforcement is too costly in terms of time and money to make sense for loosely joined communities", a Community Mark can "serve the vital function of identifying a community’s work and projects without burdening that community with undue legal process and enforcement costs." Enforcement he later describes as "through blogging, boycotting or other subversive means."
I find it distracting and confusing that Chris then discusses law as he has not yet presented details about Community Mark within a legal context. How is community representation determined?
In describing " two precedents here: Creative Commons and Microformats, he neglects that Creative Commons is completely within the existing legal framework. I find Microformat a more genuine model for Community Mark. But it is also clear that Microformats cannot be "enforced" in a short time frame which Chris suggests is one of the goals of CM.
I think the value of Community Marks is in the trust created by "codifying certain beliefs about morality and righteousness within the context of a given civilization, society or group." Without a legal context, it is not a replacement for Trademarks to "ensure the perceived quality that their logo, wordmark or servicemark represents", but a community deciding that they are strong together, and going to succeed without the antagonism that the larger society says is necessary.
The danger of CM is, once you acknowledge that it can be subverted, people outside of a community could be harmed by another ‘community’ subverting the ‘brand’. Chris acknowledges that Trademarks make sense "in the case of Firefox or Flock, even though they are the result of countless hours of volunteer effort, you still need to be able to prevent some nefarious hacker in the remote expanses of cyberspace from releasing a spyware-laden version of either browser and calling it by the name of the official binary." Still, I would like to see an alternative to Trademarks. My limited understanding of Trademark is there is a need for strict licensing and enforcement to maintain ownership of a Trademark. Then there is the mess known as Fair Use.
There is still a need for an alternative to Trademark that Community Mark does not look to satisfy. Community projects need the ability to protect the consumers of their ‘brand’ while still allowing the community to innovate the ‘brand’. I acknowledge that this quickly becomes as messy as Fair Use.
technorati tags: trademark, community mark, community, collaberation, society
Just a point of clarification:
I cite Creative Commons as an example of a group/organization “filling in law” where existing legal doctrine falls short. Granted, licensing is more open to interpretation, nevertheless when you have a huge company like Microsoft adopting the premise, you start to see this kind of armchair-legislation can have teeth.
As for Microformats and Bar Camp, I used those as examples of projects that could benefit from the establishment of Community Marks.
I had a hard time writing clearly about the idea — and I think it’s somewhat incomplete, so your feedback is valuable. Anyway, I plan to start using this idea and see what kind of traction it gets. It’s more about being proactive than just waiting for law to *poof* change!
Copyright and trademark law is entirely statute driven. The legal framework is merely the state’s endorsement through legislation, monitoring through registration, and enforcement through judgment.
I agree that understanding or making use of the law is out of the reach of many.
Perhaps better education, access and refinement is the answer.