A discussion about the breaking of the Internet
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It also shows they don't know how to negotiate at all, but that's tangential. You don't escalate to threat and then let the other side anchor the price.
And while if I was Azer I would have renamed the project (because someone else has a trademark on it), if I was kik I wouldn't pretend that bringing lawyers and being unable to negotiate is "a polite request", because imaginarily "I don't mean to be a dick"
They tried to. But how do you negotiate with a guy that doesn't want to negotiate and calls you a dick?
If I call you up and bug you to do something for me (a stranger mind you); then it is up to me to come right out and explain the value proposition. Not hem and haw, dancing here and there - hoping that you will just drop to your knees, just because. And then when you don't - I can then get mad and threaten you? What world do you want to live in? That one sounds insane to me.
> "hahah, you’re actually being a dick. so, fuck you. don’t e-mail me back."
This is the developer the community gathered behind? Not only is that incredibly unprofessional (to say the least), kik is a registered trademark.
And - I've said this before, but I will repeat it here - unpublishing all your modules from npm ("liberating") is such a selfish and childish move, especially when so many people depend on your modules. That's the behavior of a preschooler. That's not "power to the people," as Azer put it in his original post. That's just an attempt to show that Azer has the power to bring chaos to the ecosystem.
People are so quick to jump to the defense of someone who is having their "freedom" suppressed, without knowledge of the situation.
Could this eventually end up a constant corporate whack-a-mole until project names ultimately degrade to random strings of consonants?
If it's professional to contact someone and say "Hey buddy, we're bigger than you — change or we'll ruin you" then maybe "fuck you" is necessary.
To extrapolate this incident to "companies will start snatching up three letter names, and nothing will ever be able to use a three letter name" is ridiculous.
Kik is a messaging app, kik is a node module. Was someone going to call up the app store and install a node module? Was someone potentially going to install a messaging app into their node project?
I think there are a lot of slippery slopes here.
Who actually installs a module without actually seeing what it does first?
Field however is hard to define, for example Trademark offices have categories and theoretically, you cannot have 2 trademarks owned by 2 different entities. That said, it does happen, because the "fields" are actually defined by likelihood of confusion, which is shown in court. If this is all confusing, it is.
But long story short, if your mark is famous (and kik's would be considered famous), you're the only one allowed to use it, and you HAVE TO in force it, otherwise, you lose it.
would you feel like you had been treated justly? what would your response be?
I'd like to think I'd be professional enough to change the name of the package once I was prompted by kik, reupload, and be done with it. I'd be miffed, but it's a piece of software. It won't ruin me to rebrand it. It'll take an afternoon, at most.
Cursing at people and calling people names, I'd like to think that we're above that as human beings, no matter how upset we are. That's something that teenagers in League of Legends do. That's not what a professional software engineer does.
was it really though? can you show me where NPM had any kind of obligation to unilaterally take one side in this dispute?
its easy for me to see where both KIK and Azer had legitimate claims to the name and its also totally legitimate for two parties to NOT come to an agreement outside of court. We have courts to settle disputes. That is where this should have ended up.
NPM effectively denied Azer his potential legal remedy by unilaterally supporting KIK.
npm dun goofed.
And out of nowhere, a corporation threatens you to re-brand it else you are gonna face consequences, you are saying you will rename the package and be done with it ? Just like that ? Without asking why .. or finding a compromise ? I am sorry to say, but that's not how most people think.
Maybe this would have played differently if Bob would have used better language. But the fact that he went off with "our trademark lawyers are going to be banging on your door and taking down your accounts" would have pissed off any person.
And why can't a software engineer be "unprofessional" in his own private time when he is dealing with "unprofessional" people in the first place ? Have you even read any of Linus' mails ?
They do have "KIK" trademarked[0], but it is only claimed for:
>Computer software for use with mobile phones and portable computing devices to exchange, share and create text with other users; computer software for electronic messaging services; computer software for use with mobile phones and portable computing devices to exchange and share digital photos; computer software for use with mobile phones and portable computing devices to download audio, video, digital photos and programs; electronic payment systems, namely, a computer application software used for processing electronic payments to and from others; computer software for use with mobile phones and portable computing devices to create video and digital photos to share with other users; computer software for use with mobile phones to launch other applications and connect to other software services.
>Electronic payment services
>Electronic messaging services; wireless digital messaging services; telecommunications services, namely, electronic transmission of text messages; telecommunications services, namely, electronic transmission of digital photos; telecommunications services, namely, electronic transmission of audio, video, digital photos and computer programs; computer services, namely, providing interactive technology that allows users to create video and share audio and video with other users; telecommunications services, namely, providing computer software services for use with mobile phones and portable computing devices to create video and digital photos to share with other users.
As far as I can tell, kik [1] does not provide goods or services even remotely related to the KIK trademark.
[0] http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4807:385...
If KIK believes kik being on npm is an infringement on their Trademark, let them prove it in a court of law.
I don't see why NPM needs to be involved in this dispute at all.
Full disclosure, I'm not on Kik's side here. I think they should have let Azer keep the kik npm module. I'm just trying to explain why npm could be legally threatened.
Kik sent npm a request to take down a package with their trademarked name. If npm declined, they could have filed suit against npm. They would not have to prove that their trademark was valid before doing so. Even if they didn't have a trademark, they could file the case, knowing they would lose. It would be a very short case. Npm's lawyers would have to submit evidence that Kik didn't own the trademark, and the case would be dismissed.
But the important part here is that they would need to show up to court with lawyers, and this is not free. This is why (again, at least in the US) legal threats from big companies like Kik to small developers (or other individuals, or even smaller companies) like Azer are so threatening and offensive. Even if the company is in the wrong, and the small developer is in the right, the cost of hiring a lawyer and going to court is so expensive that you're better off just letting them have their way, even if they're wrong.
I think they just asked for help in resolving the issue they made up. and used word "lawyers" few times. That's apparently is all what it takes US company to fold.
So what's the rule there? You show up to court without lawyers and you automatically lose?
It's possible to defend yourself without a lawyer. People have done it successfully. However, to be successful, you have to spend a lot of time learning, understanding and using the law to your advantage, and it's usually not worth it. Even lawyers will hire other lawyers to defend them, if they're defendants in a case outside their area of speciality.
There's a pervasive attitude that representing yourself without a lawyer lowers your chance of winning, though there are no hard statistics either way.
If you don't show up at all, you'll almost always lose. In many cases, if you fail to show up, the judge is required to rule in favor of the only party that showed up. Even if that wasn't the case, if the judge is only listening to one side of an argument, they're likely to agree with that side.
KIK must prove infringement to get a court order and they won't be able to because they claim no Trademark protection in any goods or services that `kik` deals in.
NPM could have been a dispassionate observer, but decided to take it upon themselves to arbitrate a Trademark dispute. To me, this opens them up to liability if they make any incorrect decision or findings. Why would they want to take on this liability?
There is no pressing need for them to become involved. They should have let Trademark courts handle Trademark disputes.
When you work all day, and then come home to provide unpaid support for a project, things are different. You're sitting in front on a television in shorts, in the least professional environment imaginable, and you're helping people who have issues with your code, because that's what it means to give to the community.
Then someone comes out swinging with a list of demands, regarding what you do in your own time. What is the return threat? "He wasn't professional so I'll stop making unpaid use of his products"?
I'd be a little pissed too.
... if you actually release an open source project called kik, our trademark lawyers ...
That makes me wonder if when Bob saw "Sorry, I’m building an open source project with that name", he read, "There is a larger project called 'kik' I'm working on, maybe including a web site, marketing materials, other developers, SEO..." That would raise a flag, right?
So he tries to point out, quite reasonably, that they'd really have no choice but to try to protect their trademark in that case. They'd have to go after the domain name, the Twitter handle, anything else that was confusing consumers about what "kik" refers to. Wouldn't it be easier for everyone to change the name before all that stuff is launched?
But of course Azer doesn't have plans for any of that, and he didn't pick up on the hint, so what he hears is "Contrary to our claim to be friendly, we're planning to get our lawyers involved to shut down your npm module." And his response is, understandably though maybe not rationally, "Fuck you."
And here we are.
I guess that both parties would benefit by being a little more verbose and clearer.
All this angst from the lack of a 'c' in the cutesy name of a Yeoman clone...
Edit: Even worse, they don't seem to have a word mark registered. It's a design plus words mark (so basically, they protected their logo, not the word "kik"). http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4805:1rt...
This is some truly epic weasel-wording, surely. It is literally impossible to read "our trademark lawyers are going to be banging on your door and taking down your accounts and stuff like that" as not being "anything more than a polite request". That’s not how language works.
Maybe you mean to say that you regret explicitly threatening Azer with the full force of your lawyers?
They weren't worried about trademarks, they wanted the NPM package name.
https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...
> This is very rare and would not be a problem for Canonical unless people start saying “Ubuntu” simply to mean “operating system.”
Well, yeah, but that's what can happen when you don't police it. That's sorta the point of policing it, so that that exact scenario does not come to pass.
This is such a silly argument. I'd like to see it happen. Company loosing trademark because there exists npmjs.org package with the same name.
I guess I think the expectations of the dev aren't very realistic either, but I don't see what the goal of this post is, the messages pasted onto it don't paint the picture that the first part of the post tries to say exists.
What Mike Roberts should have done, upon seeing Bob Stratton's second email, is walked over to Bob's office/cube/desk/where-ever and had a very long heart-to-heart talk with Bob about his incredibly poor handling of the situation.
Nothing "amiable" about it. It is a threat, pure and simple.
It's not true that if they don't get kik package on npm they'll loose their trademark. It's not true that they can't prevent their lawyers from going after him, there are multiple ways to avoiding that. 30k$ is not high price for doing something you never had any intention of doing.
Which is not unreasonable. That moved the discussion from a single module to an entire project.
Furthermore, since companies are actually required to enforce trademarks, the comment is nothing more of a reminder of what would necessarily have to happen. It's not like they could just ask the lawyers not to enforce the trademark.
"We want this name. Will you sell it to us?"
"No"
"We are going to take this name by force if we have to. Will you sell it to us?"
"No"
"What would it take for you to sell it to us?"
"30,000"
"NPM, give us this name or we bring in lawyers and use legal force."
Sure, kik could have taken a slower approach but that's an important detail.
So yeah, it's a bigger problem than just npm. All the more reason for azer to decide to leave npm. Obviously there is nothing in place to prevent this kind of abuse in the future so why continue to participate?
"The circumstances under which a company could actually lose a trademark—such as abandonment and genericide—are quite limited. Genericide occurs when a trademark becomes the standard term for a type of good (‘zipper’ and ‘escalator’ being two famous examples). This is very rare and would not be a problem for Canonical unless people start saying “Ubuntu” simply to mean “operating system.” Courts also set a very high bar to show abandonment (usually years of total non-use). Importantly, failure to enforce a mark against every potential infringer does not show abandonment.
[0] https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...
It was decent of the Kik guys to try and amicably sort it out before calling in the lawyers given the situation, though admittedly it's also cheaper for them this way. I don't think it's unreasonable to expect confusion between Kik's product and Azer's node module - the names are identical. NPM's stance is kind of covered by their policy[0], point 3.
All the more reason for azer to opt-out. There is no reasonable recourse within the existing system.
To which I say:
https://www.reddit.com/r/programming/comments/4bnrn4/a_discu...
"We want this name. Will you sell it to us?"
"No. I'll actually release something else with that name" [implied by 'I'm actually building a project etc]
"If you do release a project by that name, then our lawyers will have no choice but to enforce the trademark"
The rest of the exchange I can sort of agree with, but when you are actually negotiating, you don't usually call people names. That usually is grounds for terminating the negotiation, which happened.
It think you got it wrong. He's just saying that his using that name for the project he is currently building. It's already released. It's on npm. Maybe lawyer mistakenly inferred future tense like you did but there was none.
I don't see how saying "our trademark lawyers are going to be banging on your door and taking down your accounts and stuff like that " and using word "dick" in second message can be considered very polite.
>> Yeah, you can buy it for $30.000 for the hassle of giving up with my pet project for bunch of corporate dicks
Obviously that wasn't the correct response. What should he have asked for, that Kik would have complied with?
"Send me a loaded MacBook Pro"
"I'll take $250 Starbucks gift card"
?
MacBook == corporate. Starbucks == corporate.
Kik will apparently throw around their perceived worth and size to threaten someone with legal action, but it's all "hey buddy do us a favor — don't be unreasonable" when it might cost them something?
I love the irony on this
Also it should be stated that mproberts spent the last 6 years ladder climbing at Kik and I can understand that this likely feels like his baby.
But Kik's self-entitlement in this case is abhorrent. The package has existed for years and imposing themselves on the developer the way they did is sad, but not surprising given the current patent/trademark climate.
It's clear that npm has also done some cleaning, they've gone and tried to remove all evidence of the kik npm package being available in the first place. Even the single "kik" page on npmjs.com has been removed from the Wayback Machine. Talk about thorough.
But I can't blame his anger for "breaking the Internet." The blame for that goes squarely on npm, who allow unpublishing of modules.
What if you... couldn't do that?
kik could have named it something like 'kik-api' or use a private namespace ('@kik/api'), but it seems like Azer just goaded them into a legal course of action.
And you think Azer is the one being rude?
Pretty rude conversation has been started by Kik's guy Bob, when he answered back to previous message using such sentences as:
> We don’t mean to be a dick about it ...
> ... our trademark lawyers are going to be banging on your door and taking down your accounts and stuff like that
All Azer's responses afterwards are totally acceptable and understandable. He is not one who started talking in that way.
The resulting behavior and side effects in NPM is unfortunate, but I'm pretty glad it happened so that it'll hopefully get addressed.
Yes. I'm glad that we have a moment when we can try to discuss and influence how this problem will be addressed.
But... (maybe I'm reading this wrong) what, exactly, is problematic with NPM?
@thedz, I'm not really picking on you, but the words you've used have made it clear to me that there is an assumption underlying this issue that's pretty common. The assumption that this conflict is a problem with NPM, i.e., with open-source.
Is that really true? And if it is, should it be?
Let's hypothesize that for the most part the "corporate world" and the "open source community" keep to themselves, have their own concerns, and don't conflict. -- When they do conflict, why does anyone assume that corporation should get its way, that their concerns are more legitimate?
It's as though we believe that, unless you get paid for something you do/make, it's not yours and you don't have any rights to it. We should think about that. And then we should look at the thing that Kik did to try and draw Azer into their world (onto their turf): they offered to pay him for it. They tried to to transmute something he was doing for free into something that belongs to the world of money.
I agree that it's not Kik's fault. They're just a company. Or rather, "it" is just a company. You can't expect it to act like a person. -- But this just hammers home the point that I'm trying to make, that these are really and truly different worlds colliding. Its not a big thing vs. a small thing. Its two different kinds of things. And we can't just default and use the terms and ways of the bigger thing to decide how to mediate the conflict. That's not right. That lazy. At best. Really it's just cowardly. A failure to think. A failure to believe that anything has meaning.
(Turns out there's a whole phenomenon studied in historiography (that's the academic discipline that studies how history is made) about how when two parties go to war, it is inevitably perceived through the lens of power and technology, -- specifically that the side with better technology is in the "right". Hm.)
In this context, it's uncanny that the discussion has centered around "who was polite" and "how much money". That's not really what this whole conflict is about. It's about whether we value a person's labor, and whether we're willing to devalue it if a company says "jump".
I think the problem is that people should not (except in rare circumstances) be able to just remove packages. They should be immutable and have versions associated with them so that your builds are reproducible.
Sure I think that in some cases you should be able to have them removed like if there is a security vulnerability or something but I don't think some guy being upset should be sufficient.
> Isaac: In this case, we believe that most users who would come across a kik package, would reasonably expect it to be related to kik.com. In this context, transferring ownership of these two package names achieves that goal.
How is that remotely a reason? Is a .com domain a trademark now?
https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...
It's an obvious spelling play on a common dictionary word in standard English, of ancient origin. Should "thru" and "nite" be trademark names?
And it's just too darn short.
More broadly, if you don't allow English words or spelling plays on English words, what's left to allow? Chinese? Line noise?
I actually have received a nasty Trademark C&D in the past from NY attorneys (I live in Canada), and being told by our lawyers that it's actually on the "friendly" side of C&Ds they've seen. So what Kik did, and not get lawyers involved was actually the best way to handle it. Just look at the C&D and convo between Pair and Pair on TechCrunch.
Azer was actually the one being a dick, responding with "fuck you". You wouldn't expect someone to name an npm package called Disney or Apple or Microsoft or Intel.
Side note: if Kik were really being dicks, they could have sued Azer and forced him to appear in court, and Azer would likely lose. Also, kik also has a unique spelling and Kik owns Kik.com, it makes it harder for Azer to argue "look at square" (where square is too generic of a word). Trademarks are weird, and unless you're a trademark lawyer or been sued, they may come across as stupid, but they really aren't.
Also - NPM really dropped the ball. Shows how little they care about the developers that make them relevant in the first place.
Lastly - at the end of the day Azer's holding a big bag of jack....And has had his work effectively stolen (I'm referring to left-pad). How does this incentivize anyone to put their work in this resource going forward?
Azer is the hero of this story - make no mistake. He refused to make way for a big corporation, his only mistake was trusting that his choice of software host would have his back. Shame on npm and shame on kik.
I would be curious of how many package are being affected by these ripples and will end up being removed/renamed.
https://www.npmjs.com/package/square.
https://webcache.googleusercontent.com/search?q=cache:PL8U_6...
does come with this warning though:
This project is discontinued, better compilers (i.e. gulp.js for instance) are around and should be used. Use at your own risk.
None of us should be subject to such behavior no matter how many trademarks, patents, consumers or money they have.
They should name their package kik/dick-kik so it "won't be confused" with other packages. Ever.
> Sorry, I’m building an open source project with that name.
This indicates that the person feels an emotional attachment to the name. Also, since the response is short and to the point, it is clear that they don't see any logical reason to give in. When responding to this, you need to use empathy (honestly, something severely lacking in a lot of these types of conflicts in the programming world). So rather than responding with this:
> We don’t mean to be a dick about it, but it’s a registered Trademark in most countries around the world and if you actually release an open source project called kik, our trademark lawyers are going to be banging on your door and taking down your accounts and stuff like that — and we’d have no choice but to do all that because you have to enforce trademarks or you lose them.
A good, proper response would have been something that:
1. Explains that Kik is their company's name and why not being able to use it would put them in a hard spot. Yes, it would be reiterating the point from the first email, but objectively, that first email wasn't exactly clear. No company links, no explanation of what this "important" package is, etc. NEVER expect someone that you are asking a favor from to go out of their way to figure out what you are saying. That's your responsibility.
2. Don't mention trademarks or lawyering up. That's a power play and all teachers know that you don't need to wield the authority stick most of the time. With something like this, it's worse because you are threatening a person's livelyhood. If that's your go to response, you will 100% get instantly shut out both emotionally and logically. Expect compromise to end right there.
3. When asking for a favor, cause this is a favor, and trying to compromise, don't ask them what they want. They obviously want the package name. For those of you who have been in salary negotiations before, this should ring a bell. This is a power play by Kik to give up as little as possible for what they want. Kik is the one asking a favor. Say the word favor. Make it known that Azer would be doing a good thing by compromising and helping you out. Make the first offer. Give Azer something to think about and go from there.
Having seen Kik's initial attempts at communication, I can now 100% understand Azer's response. It's the obvious result. Immature? Overblown? Honestly, this is pretty much par for the course with most humans no matter the age. Some of us are just better at stopping and taking a moment to think before replying. On the internet where you cannot see who you are talking to? There is even less of a barrier.
I can make a lot of parallels to teaching and working with children, but I think what I wrote should be clear enough. Kik is in the wrong here and really needs to apologize for their actions - to the community and to Azer - and should put in some effort to helping NPM fix this fiasco.
The World Wide Web is but a subset of the Internet. It's one of systems that comprises it.
I'm still going through these emails, but I will give Kik credit for at least being polite about the whole thing - I criticized them in my post earlier about not representing the Canadian tech industry well through their legal action haha