Cory Doctorow – O'Reilly apologist

Marc Canter called Cory Doctorow out yesterday. He said:

Cory Doctorow is one of the leading critics of DRMs, DMCA, copyright laws and the status quo – which often pits lawyers vs us. He’s worked for the EFF for years and helped found the #1 blog – Boing Boing.

But he’s also a close buddy of Tim O’Reilly and Rael Dornfest and helps create the Etech conference every year – which is the cornerstone of the O’Reilly Web 2.0 empire.

So I’ve gone be back and scanned BoingBoing over the last 36 hours – and guess what?

I can’t find a statement from Cory on his good buddy Tim – suing Tom Raftery – who is now MY good buddy, since I did a podcast with him, met him in Dublin at a Web 2.0 event and will be going to Cork – in November to speak.

I take shit like this personally.

So this is a public all out to Cory “hey Cory – wassup dude? Which side are you on?â€?

Cory has subsequently
come out of the woodwork with as biased a piece on this Web 2.0 furore as I have seen outside of the O’Reilly blog.

At first glance the article seems even-handed, reasonable even, until you realise that Cory has only linked to two articles in his post: 1) the O’Reilly response and 2) John Battelle’s response (John Battelle has a working relationship both with Cory and O’Reilly).

Then consider Cory’s language, he says that the dispute has been resolved amicably and that O’Reilly’s

has granted the con[ference] permission to use “Web 2.0” in its name

I’m sorry, what? They have granted us permission to use the phrase Web 2.0 in our conference? Wow, that was really generous of them, NOT. Should we also apply to them for permission to use the word “conference” in our conference title?

What if I trademarked the name Cory Doctorow here in Ireland. It wouldn’t be that hard, there can’t be that many Cory Doctorow’s here. Then say I got my legal team to send threatening cease and desist letters to Cory Doctorow saying I had trademarked that name in Ireland and that he had better refrain from using the name in the US. Then say I finally relented, called off the legal dogs, and said “Ok Cory, you can use the name Cory Doctorow – I will give you my permission to use it”. Would Cory feel I had been particularly generous to ‘allow’ him to use the name?

Of course not. Similarly, a trademark issued in the US has no jurisdiction whatsoever in Ireland. O’Reilly’s have no trademark for the term “Web 2.0” in Ireland. O’Reilly’s did not grant us permission to use the term – they had no authority over our use of the term in the first place.

Cory, if you are going to write a biased post that’s fine, everyone is entitled to that but you should really disclose your relationships with the parties you blog about (and link to the relevant posts rather than only linking to your friends).

UPDATE – Robert Hyndman has a fabulous post on the selfishness of trying to trade mark a term as generic as Web 2.0.

40 thoughts on “Cory Doctorow – O'Reilly apologist”

  1. Hey tom! Thanks for pointing that out, as I was wondering about this.

    Am I correct in saying that all they have offered today, is a once off to use of the Web2.0 monikjer/term this year, as it applies to their pending status for a Service Mark in the US jurisdictaion?

    btw, I have been reading posts on O’Reilly that suggest that the matter has been resolved? Which I have felt it wasn’t and its good to hear you are not backing down from this stupid situtaion that O’Reilly and CPM have placed themselves.

    /Paul

  2. I was just reading his post on boing boing and thought that too Tom. For a normally very anti-restrictions type guy, he obviously finds himself in a bit of a quandry.

    Having said that, I think the whole ‘Web 2.0’ monikor is going to be pretty tarnished from now on. Let them have it, it’s close to worthless after their antics.

    Best wishes, Pete

  3. But Doctorow seems to have come out against the trademark of ‘Web 2.0’. And Battelle seems to second that position in a comment on his own post. I suspect a course reversal is in the works, albeit after a fair amount of damage taken and time lost.

    And hey, celebrate a little, not only are you a dad, you’re now an A-list blogger, with a bow Robin Hood would envy!

  4. “I point you towards the Madrid Protocol.”

    The Madrid Protocol is for people who know what they’re doing. That MediaLive/CMP and, by association, O’Reilly didn’t speaks volumes. To take advantage of the international rights that the Madrid Protocol confers, you have to ask for them first (and pay WIPO a few hundred bucks).

    As far as I can tell, there was no application for international protection under Madrid by MediaLive or CMP. The WIPO database comes up blank – CMP has just one trademark in there for a shipping-related title. If you go to the EU Harmonisation database, you’ll see that the trademark CMP applied for in March this year was done directly, not under the Madrid rules. There was one filed in Canada at about the same time – although Mesh did not get a nastygram.

  5. Finally a post with a number of comments I can address individually!

    Paul – that’s it – one off use of the term is their offer.

    Pete – you may be right but I still think they can’t be left get away with trademarking a term that generic.

    Liam – true Cory did come out against the trade marking of Web 2.0 in his conclusion. Then again, how could he not? I have a feeling Tim will reverse their position on this on Monday. It is the only thing I can see which will win them back any of their tarnished reputation.

    Keith – what Chris said.

    Chris – thanks!

    Bernie – I think people are exercising their anger because of the trade marking of a generic term and because that term is one which is supposed to stand for openness and sharing (amongst other things).

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  7. To take advantage of the international rights that the Madrid Protocol confers, you have to ask for them first (and pay WIPO a few hundred bucks).

    That I didn’t know. I was under the impression that the coverage was automatic once registered in one signatory country. Thanks for clearing that up.

    K.

  8. You know, there was a straightforward, O’Reilly-style way to handle this…
    1) Announce that CMP was about to receive the servicemark.
    2) Note that, since the filing, many web 2.0 events have occurred.
    3) Indicate that they’d like to protect the Web 2.0 Conference brand.
    4) Ask the web community for feedback on how to proceed.

    (If you’d like to use that list in a subsequent post, feel free.)

  9. What if I trademarked the name Cory Doctorow here in Ireland.

    😀 You never know that might not be a bad idea.

    I remember reading a comment on one of the posts. Saying the person was saddened that they had a slelf full of O’Reilly books after this. The way this is going to amount of money O’Reilly could lose from the negative press could equal the money they could have made from conferances.

  10. Although you almost certainly could register a trade mark for the words “Cory Doctorow”, you almost certainly wouldn’t be very successful in any attempt to use or enforce it, the law doesn’t work like that.

    Regardless of whether or not you have a trade mark, the laws regarding passing-off and libel take precedence. If you were using the mark in any sense which could create confusion and was in any way harmful to Cory’s reputation, then you could find yourself liable for that nonetheless.

    If you attempted to sell a Cory Doctorow TM book for example, you could expect your case to last about half a second before the Judge found entirely against you, regardless of the mark. If you attempted anything which conveyed the impression of an endorsement or attribution “Cory Doctorow TM Water” or “Cory Doctorow TM Conference”, you could expected the case to last maybe 1 second, but still go against you conclusively.

    Which brings me to this; Even if O’Reilly had no trade mark whatsoever, in Irish jurisdiction or anywhere else, they could still enforce their rights to the term “Web 2.0 Conference” by claiming that you were passing-off. Case-law in Ireland is dangerously inconsistent on what exactly can be regarded as passing-off.

    Lastly, a trade mark registered in the US most certainly has jurisdiction in Ireland if it has been registered in accordance with the Madrid protocol, though I still havn’t found any detail on the nature of the registration of the mark.

    One last note; thus far I have read not one article on the Anti-O’Reilly side (the one I’m leaning towards agreeing with at this stage) which wasn’t littered with abject cluelessness, both on the basic issues and on the law in general, so I can’t blame Cory for not linking to any.

  11. I for one am delighted that the insular, back-slapping, naive it@cork/irish dev/IAA community have had their little wordpress powered bubble burst.

    welcome to the real world Raf / Neylon / Connolly / Mulley et al.

  12. It staggers me that anyone could take Boingboing seriously in any way. Read any post on it and behold the self-regard, the hypocrisy, the faux populism, and the libertinism of Cory, Xeni, and friends. Consider how they blend fashionable, ‘radical’ left-wing politics with their love of Hollywood and the values of the Sandhill Road billionaires. It doesn’t surprise me in the least that their lip service to free speech is only as deep as their commitment to their billionaire pals, because at the end of the day, they’re part of this greedy, obnoxious clique. (They probably vote Republican, they’re so hypocritical.)

    Boingboing have all these fools just foaming at the mouth, begging them to put them on the cyber map. But BB are selective, real selective. If it doesn’t fit their little political POV, then, no chance. Get out of here. This is our party and we only invite the ones who are going to make us more entrenched in our elitism.

    So, consider that you cannot leave a comment on Boingboing. Think about it. How democratic is that? It affords them a risk-free platform to pontificate before an audience of politically clueless, unquestioning geeks who just want to get linked back from them. And they power on from bad to worse: they seem to believe that anyone people find his absurd science fiction efforts or her lesbian art fantasies, important.

    These people are far more obnoxious than O Reilly, despite his ridiculous antics last week.

  13. To do my bit to support Tom and IT@Cork I have purchased the domain name
    web2pointzeroconference.com (thanks to my brother Colin for pointing out that it is available) and I have put it up for auction on ebay.

    http://cgi.ebay.ie/ws/eBayISAPI.dll?ViewItem&item=9733325253

    I will donate 100% of the proceeds of the auction to IT@Cork in person when I turn up on the 8th June. It remains to be seen whether that donation will be a handful of change or a bank draft 🙂

    keith

  14. Liam – thanks – I may well do!

    Colm – I was using that as ridiculous example to mirror the sillyness of trademarking web 2.0 – I wasn’t really, seriously, suggesting that as a strategy but thanks for the analysis.

    Alan – thanks!

    Richard – I can’t disagree with you in this instance certainly!

    Keith – now that’s just naughty!

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  16. Tom,

    I think you’re doing an excellent job of rallying people to your side and getting attention for yourself and IT@Cork’s Web 2.0 conference. But it’s mostly bunk. You’ve chosen a copycat name for your conference. You don’t have to get into the legals of it to know that you’re in the wrong and should have been more original. I think the vitriol, much of it coming from you, is obscuring that point. I’ve posted as much on my blog.

    –tony

  17. Everyone has the right to protect his intellectual property. But it appears that O’Reilly may not have protected his. A genericized trademark is “a trademark or brand name which is often used as the colloquial description for a particular type of product or service as a result of widespread popular or cultural usage.� http://en.wikipedia.org/wiki/Genericized_trademark
    I have read that in America and other countries, for years, there have been numerous conferences and other events with “Web 2.0� in the name.[http://blog.softtechvc.com/2006/05/the_web_20_lega.html] If this is true, then since O’Reilly and his company did not previously enforce their rights and send Cease & Desist letters to *those* conference organizers, it seems to me that “Web 2.0� has been allowed to become a genericized trademark. Hence, trademark rights may no longer be enforceable or at least it may be difficult for O’Reilly and crew to now enforce their rights. A long list of other genericized trademarks: http://en.wikipedia.org/wiki/List_of_generic_and_genericized_trademarks
    Also, see the very brief opinion of The Trademark Blog on this topic: http://www.schwimmerlegal.com/2006/05/web_20_v_web_20.html

  18. Tony,

    How would you feel if you found that someone had protected the term “regular expressions” in the book market, some years after people had been publishing their own, and after it had become common currency?

    I presume that someone must have used the term first, so they should have the right to protect it.

    (for those in the dark, Tony Stubblebine is the author of Regular Expression Pocket Reference published by O’Reilly).

  19. Interestingly, I submitted my above comments (exactly the same) both on John Battelle’s Searchblog and O’Reilly Radar. Neither site posted my comments (though O’Reilly Radar allowed vulgar postings that used the f-word). Wonder why…Perhaps a strong and valid argument is more threatening than profanity.

  20. Tim (Almond), I don’t believe for a second that IT@Cork would have been contacted merely for hosting a conference with the name Web 2.0 in it. Raftery left a note in my comments linking to a page that calls it both “Web 2.0 Half Day Conference” and “IT@Cork Web 2.0 half-day Conference.” It’s clear from the C&D letter that the CMP lawyers thought that the conference was called Web 2.0. They may have threatened with their pending rights to more than that, but I think the core reason is still the near identical conference name.

    It’s also the reason I came down so hard on Raftery. He’s whipped up some venom in order to create the expectation that O’Reilly is going to issue a complete retraction. But I just don’t think having ‘half-day’ in the conference title makes it an original conference name. Neither does the fact that it’s in Ireland and €50. That’s because people aren’t going to refer to it as “Web 2.0 Half-Day Conference in Cork Ireland for €50,” they’re just going to say “Web 2.0 Half-Day Conference.” That’s as unoriginal sounding and misleading as if I were to host mini-COMDEX.

    As for Regular Expression books, I was the first one with the title Regular Expression Pocket Reference and every following author has been kind enough to choose a different title. I don’t think O’Reilly’s expectation is going to be any different.

  21. It’s not generic. These guys invented the term:

    http://www.oreillynet.com/pub/a/oreilly/tim/news/2005/09/30/what-is-web-20.html

    While it’s certainly true that it is hard to defend the term as a trademark given what it has come to mean, the fact that the term originated at one of their conferences, and have built a busienss on top of it, strikes me as an eminently fair defensible position.

    Stop whining.

    “bar camp” made fun of O’Reilly’s “foo camp” cleverly. I’d encourage you to emulate that spirit.

    Get a sense of humor already — You can make light of it, or try and wrap yourself with a martyr’s flag over this.

  22. Tony, I have news for you. Almost no-one in Ireland had heard of O’Reilly’s Web 2.0 event before last Thursday. There was no danger whatsoever of anyone confusing the two events. Our membership are local companies and many of them only heard the term Web 2.0 for the first time in our promotion of this event. Now, of course, their impression of the term and O’Reilly/CMP is extremely negative.

    Chris, O’Reilly may have popularised the term but they didn’t coin it. The term Web 2.0 was used as far back as the late 90’s long before O’Reilly’s had even heard of it.

  23. Tom:

    OK — Nice reference to some prior art – wasn’t aware that this term really had any play prior to its coming up here.

    Doesn’t really change the point I was trying to raise:

    – Taking a couple of generic words and putting them together or associating them with something — Whether that be “Web 2.0” or “Look smart” or “Windows” or “Macintosh” is the essence of a tradmark, in this case a conference

    – While the *term* may be in use farily commonly, it’s use for a conference has not only your standard trademark claims, but a reasonably righteous claim that they actually took a term that came from an event they hosted and built a business out of it. The key here is righteousness. They weren’t carpetbagging it, they grew the thing from intellectual property that they had raised themselves.

    – If you think O’Reilly is being unreasonable, poking some fun at the guy would be a lot more entertaining, and make you look a lot better than to cry victim here. Alternatively, you could have sent Tim a note reaching out yourself.

    I have a lot more respect for the “barcamp” guys (genius) than for the crew of people who wined about not getting an invite to foocamp. Golden opportunity here to make a witty statement through your actions, which will have a longer lasting effect than the accusing blow up, backlash and crowd moving on lifecycle we’re going through here.

    Sigh.

  24. To better understand this idiocy, you must know the long and idiotic history of John Battelle, the guy who really stood for everything stupid and wrong about the LAST internet bubble right before it collapsed.

    Oh, and Battelle took his latest company’s name from another existing media company that owns radio stations in many U.S. states and has been in business for more than three decades.

    Ironic, or just business as usual for the John Battelles of the world?

  25. 18/11/07

    Hello,

    My name is Tom Raftery also.

    You have great ideas and magnificent creativity.

    Here in Australia the first Thomas Raftery arrived in Melbourne in 1841. I am Thomas the fifth.

    Long may this great name prosper forever.

    Thomas Raftery

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