BitTorrent to Enforce BITTORRENT Trademark

Mark Schultz

BitTorrent makes the news once again, this time as a trademark enforcer. ZDNet reports that the company formed by BitTorrent creator Bram Cohen, BitTorrent, Inc., will begin asserting trademark rights in BITTORRENT against software developers who make unauthorized use of the mark in their branding and marketing. Those who want to use the mark will need to gain approval, pay a nominal fee, and sign a license agreement.

Some see BitTorrent’s actions as ironic. The Register subtitles its story on the news “MPAA stifles laugh” and leads with “BitTorrent – which usually finds itself reading lawyers’ letters rather than writing them – is going to start taking legal action rather than just being its subject.” It is indeed tempting to see this as yet another amusing attempt to build a mainstream business on the notoriety of filesharing, as Bertelsmann has done by turning Napster into a paragon of copyright compliance. Nevertheless, as I have noted before here and here, Bram Cohen and BitTorrent have always been a bit different from the Groksters and Napsters of the world. Cohen has always maintained a fairly convincing and consistent line that BitTorrent was intended and should be used for non-infringing uses only.

What is the story with this latest news regarding trademark enforcement? Most likely, this is an attempt to help bolster the legitimacy of the powerful BitTorrent brand. BitTorrent is well known, but also notorious. BitTorrent, Inc., is seeking to become a legitimate, commercial distributor of movies and other content, having raised $8.75 million in VC money to “to improve its infrastructure and make it more appealing to Hollywood.” As BitTorrent’s COO Ashwin Navin says, “The piracy business is not something anyone can make money on. We want to distribute paid and ad-supported content, using this technology.”

If BitTorrent wants to be attractive to Hollywood, it needs to makes its name something other than a synonym for piracy. Can a cool, cutting edge brand with outlaw mystique successfully transform itself into a Hollywood-friendly service? It will be interesting to see whether BitTorrent can pull off such a re-branding.

BitTorrent’s official reason for policing its trademark is to prevent adware and spyware distributors from exploiting its popularity. As I said, I suspect legitimacy is a greater motivation than fear of adware, but quality control likely does play a role in this policy. In fact, trademark enforcement is nothing new in the open source community, as Linus Torvalds also polices the use of LINUX. The Linux Mark Institute licenses use of the LINUX mark. The terms are not onerous, but they certainly allow Torvalds to control the Linux “brand.”

The use of trademarks in the open source community is quite fascinating. It had not occurred to me before (but I’m sure that it has to many others), but I see clearly now that the control of a trademark may be at least as important as licensing in coordinating development and maintaining the quality of an open source program. Any developer can take Linux or BitTorrent code and adapt it to their purposes. But if they are prevented from using the original name, then they are less likely to cause confusion, perceived interoperability problems, or hurt the reputation of the program.

I wonder, however, whether BitTorrent is a bit late to the game in enforcing its rights. At this point, “BitTorrent” may have become generic for filesharing programs that employ the type of distributed technology originated by Cohen.

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