The bull in a china shop

I flushed out some interesting feedback by talking favourably about OGC's IP protection. ITIL depends on volunteers and it is a fragile arrangement. When those volunteers' first direct official contact ever with OGC or TSO or APMG is not a certificate of appreciation but rather a cease-and-desist letter from a lawyer, that does not contribute to good will. Nor does it create the impression that we're all in this together, creating a body of knowledge for the public good. (When are you ever going to say thank-you, OGC?)

So far I count at least two volunteer contributors and a Ph.D. student trampled over by bumbling lawyers who have clearly recently been prodded into action after years of doing sod all. And they don't apologise when they got it wrong - they just back off, like snarling curs on a chain.

Dare I say my satirical book Real ITSM was a bit prophetic again?

ITSI protects its intellectual property rigorously, policed by the DespoITSM program.

The Program (as it is known) enforces:
• Misuse of copyright material
• Violation of trademark
• Parody and satirical mockery of Real ITSM
• Unpaid bills
• Overdue subscriptions
• Overdue books from the RITSI Library

Enforcement is outsourced to Lou and Stan’s Debt Collections and Intellectual Property Enforcement Inc. Lou and Stan have an uncanny ability to avoid drawn-out legal arguments and a remarkable number of affiliates in most countries.


Flagrant abuse of ITIL trademark

How does OGC justify bullying a few authors and PhD students while vendors get away with this kind of thing apparently unmolested?


ServiceWise HD – Basic Help Desk Management
ServiceWise ITIL – Enterprise-Class ITSM
AssetWise – IT Asset Management
ProjectPlan – IT Project Management

Seems that the ServiceWise

Seems that the ServiceWise folks have even "borrowed" graphics from the MOF too - see their incident management pdf - - straight out of Microsoft Operations Framework collateral...

ServiceWise plagiarism

Hmm naughty. Even though MOF is now released under Creative Commons, one is obliged to acknowledge the source.

There are people out there who are ignorant of their obligations and/or thoroughly unprincipled.

Fair Use?

I'm fairly sure that the 'fair use' angle comes into play here along with 'opinion' and 'value add without seeking revenue'. Now I may have been polluted by living in the US for too long but it has always been the guidance of my counsel that some reference and reuse is allowed. Its not possible (or legally enforceable) for an IP owner to limit all use. As long as a reasonable effort is made to cite the origin and owner in terms appropriate (no bad mouthing or damaging of brand), no placing it inside another product and effectively rebranding, using only a small percentage (some say as much as 15% is possible), adding value (providing opinions or explanations that actually improve the clarity or value of the original for no personal gain), promotion (consistent with original IP owners descriptions) - are all legit.

I'm also confident that a document written in support of PhD or similar, with a reasonable citation is just fine. Its key to show you have made an effort and you do not have to actually get written permission. I once decided to remove all references to the PMBOK from the USMBOK in frustration of working with what was a naive paralegal. I was actually promoting the PMBOK as a key source ("go buy a copy and use") and using suitable citations after checking directly with their legal department. Two years later I received a letter saying, "... we have received a complaint from a member...". They actually claimed IP ownership over the term 'project'. I had to point out that the first use of that term predated the establishment of the PMI..... a "bite me" response on that aspect.

Legal experts can help me out here if you want...

I suspect OGC/TSO/s over pursuit of infringements was caused for the most part by the Wild West approach out there to copyright. All too often its ignored and there remains a host of websites and sources that frankly deserve the 4x2 treatment behind the woodshed. I get an email every week from a lookalike ITIL website.....

crash goes the china

Thanks Ian for a great summation of the situation from one who has experience.

I'd add that the fact that there are such obvious abuses prancing about only makes it all the more infuriating for people who genuinely do the right thing and have the right intentions and still get some grunt lawyer pushing them around.

Slippery slope to "For the People, but not by the people"

I totally agree on a level, however, outside of the training material front and blatant republication, what else is there to "enforce''? So, quick scenario re: ITIL, the For the People, By the People, Open Source (like) Framework, etc..., if I were a consulting professional that was helping organizations do better and make gains improving quality via my experience, certification, and ongoing education of the ITIL framework, should I be paying a license fee to utilize what I have learned (I thought ITIL wasn't proprietary?) in helping guide these organizations? If I whiteboard some ITIL terms regularly in workshops, include (less than 15%) my interpreted diagrams, definitions, etc.. am I out of compliance? If I write a free whitepaper saying ITIL is great, ITIL has warts, but all in all it is good stuff, am I out of compliance?

I totally get that if I am writing books and making cash on presenting what ITIL is (as if I were a part of Castle ITIL and reusing word for word pieces of the framework), I could be in trouble. I just hope this doesn't get to the point where 'hush hush' heaven forbid you say the name! I'll need a quarter jar to drop in my fine for every time I say the name without being copyrighted. Their over-aggressive pursuit is a slippery slope to changing it's value, its usabilty, it's perception in the marketplace, and most importantly OUR commitment and willingness to stay involved (if it becomes for the people, by Vendor M or I or H, we're all in trouble).

keep the dogs on the chain

let me share an email conversation with you:

Add to the picture the issue of originality. My dodgy legal understanding is:
You cant write a derivative of Harry potter as its an original idea by JK rowling.
By definition ‘best practice’ prince 2 and ITIL concepts are not original to OGC/British Crown. Can you copyright/trademark the CONCEPT Problem Management or its definition? I think not – it's common usage.
Good point about originality. According to my IP lawyer, the work of ITIL as a whole might be regarded by the Courts as an original work, so if you reproduced all the processes then that would be the essence of the work and hence maybe a violation of copyright (just like some say JK Rowling ripped off Star Wars).
(And of course the wording is original so using extracts has to be limited by fair use.)
i guess the construct of the components (the sequence) may be original – but PRINCE2 was based on an existing IBM (?) model….

...and ITIL was based on all sorts of work that was donated to the cause.
In summary, if you copy the exact ITIL structure or too much of the ITIL content for commercial gain, then you expose yourself to potential copyright suit. otherwise, I think you don't.

Similarly if you trade purporting to be part of ITIL you violate trademark. if you trade about ITIL you should be OK within trademark law. I'm no lawyer myself (said with pride) but I do think the whole attempt to prevent people training about ITIL based on trademark is worthy of testing in the courts. I'd have thought most bodies of knowledge would prevent unauthorised training based on copyright not trademark, but as we have already discussed Castle ITIL has a soft case on copyright since so much of the content isn't actually theirs.

I constantly consult to clients referencing ITIL as my "best practice" authority for what i say. I constantly tell them what ITIL thinks about a topic. I constantly draw diagrams with ITIL process names in the boxes. I constantly create service catalogues and SIPs and other artifacts mentioned by ITIL. I occasionally quote directly from ITIL within the limits of fair use (note that the ITIL glossary is public domain so I believe you can use that with impunity, though i always attribute it). Once or twice i have even redrawn ITIL diagrams.

If any of that offends the OGC/TSO/APMG lawyers they can kiss my arse - I'll see them in court and enjoy winning. And if I or anyone else has to wrestle with them over consulting activities, I'll fund-raise and expose the story all over this blog.

I'd like to think all of this is academic. I'd like to think Castle ITIL has enough sense not to s**t in their own nest, not to poison the volunteer support they depend on. And if say a university were telling students what ITIL is, I'd call it the height of stupidity to stop them. But as this post shows, I'm not sure their lawyers are that sensible. Castle ITIL need to keep the dogs on the chain.


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