⇥ IP lawsuits and you: a short guide to preserving your sanity when you’re the small guy

While researching a story about the Lodsys affair, I came across an unusually high number of gratuitous legal opinions from people who have absolutely no idea what they’re talking about. Worse, the advice from people who should know what they’re talking about is even worse.

Being the slightly unbalanced person that I am, I feel compelled to point out a few things.

Lawsuits and you: don’t be the small guy

The main reason why I’m writing this is that I was, once, the target of a lawsuit myself. I’m not talking here about legal threats, nasty letters, or the likes; I speak of a full-fledged lawsuit brought against a small company of which I was a director by a much larger opponent with deep pockets and a veritable army of lawyers at their disposal—a lawsuit that ultimately took nearly ten years, thousands of hours of unpaid work, and several millions of dollars to resolve.

Unless you have plenty of disposal income, a lawsuit is an incredibly disruptive event in your life. If you’re the small guy, personal and financial ruin stares you blankly in the face, and you can’t afford to blink.

The psychological impact can be crushing and, inevitably, almost everyone around you only makes things worse and worse.

The first thing one learns is that the legal process has absolutely no connection with reality or common sense. Unless the relative power of the opponents is balanced, there is no such thing as a quick resolution, and the courts, which must maintain the appearance of impartiality, will bend over backwards to allow all the parties the most latitude possible. When you’re up against a corporation with much greater resources than yours, they will (and, in all fairness, they must) abuse that privilege to their largest possible advantage.

The judicial process, in other words, is a harsh mistress whose primary objective is its own self-preservation. Justice in the moral and ethical sense of the word, which is what you’re after, is a much distant second goal.

Lawyers don’t throw exceptions

Believe it or not, this is a very difficult concept for a lawyer to explain. At a moment where your life has been turned upside down and all you want is a little certainty, they can offer none.

To the novice, this is very frustrating. On one hand, you are thrust into an abstruse, complex, expensive, and drawn out process that makes absolutely no sense. On the other, the person you have chosen as a guide in this new world seems to be unable to offer any certainty or explain things in clear, unequivocal terms.

I used to think that, as part of the ritual of being called to the bar, lawyers have to undergo a surgical procedure in which the structure of their brain is physically altered in such a way that makes it impossible for them to use the words “yes” and “no.” It’s systemic—ask a lawyer if they like orange juice, and they’ll launch into a half hour explanation of how oranges are picked, grown, and squeezed—but you won’t get a yes or no out of them.

Then, one day, a lawyer did give me an unequivocal answer—one that seemed sensible, logical, and entirely applicable to our case. So, we followed his advice, and it nearly cost us everything.

It eventually dawned on me that the reason why lawyers seem to live in a perpetual state of indecision is that all they can offer is an opinion. The law is not an exact science, but rather the sum of a myriad contrasting ideas put forward by a myriad contrasting people. Like an old MS-DOS API call, any given set of inputs can result in a completely different output every time.

Armchair lawyering doesn’t help

When you get sued, everybody has an opinion. And, if the lawyers can’t get it right, I’ll let you imagine how valuable the judgment of those who don’t practice law can be.

The worst people are those who make it about right and wrong. The legal system doesn’t care about right or wrong—it cares about legal and illegal, a very different (and somewhat fluid) concept.

Here’s a piece of advice if someone you know gets sued: shut up. You don’t know what you’re talking about, and your armchair lawyering only helps increasing the confusion and anxiety of a person who is already anxious and confused enough.

The same goes for those people on the Internet who can’t help but rally against the injustice of a large company suing a small one into oblivion. I can only hope that a special place in hell is reserved for the coffee-shop activists who keep blaring left and right how Lodsys’s management is nothing but a band of scumbags, how their patents are unfair and just obvious, and so on.

If you want to help those who are hit by these legal threats, let the lawyers do their job, and be a human being. Offer constructive moral support, which they need, and spare them your legal opinions. Being on the other side of these conversations, every time someone offers you an uninformed legal opinion, you only feel incompetent and futile; after all, if everything your opponent does is so unfair and obviously wrong, why do you have to spend hundreds of thousands of dollars and risk everything you own fighting it over long periods of time?

And the worst: Internet lawyers

The absolute lowest common denominator in this entire equation, however, are what I jokingly refer to as “Internet lawyers,” people who profess themselves knowledgeable of the law and dish out advice so bad that it makes me want to cry.

As part of my research, I interviewed several professional lawyers who are not involved in the Lodsys case, and they all gave me exactly the kind of good advice I would expect from a competent practitioner: they laid out all the possible options and then proceeded to illustrate the possible consequences, concluding with a catch-all reminder that, in the end, the entire legal process is highly randomized—a bit like reading a multiple-ending novel written by a slightly schizophrenic author. I consider it a minor privilege, if the story gets published, that I have been able to quote these people and provide some useful information to my readers.

But for every one of these honest people who take the time to give you good counsel, there are ten who are too busy listening to the sound of their own voice and give you absolutely disastrous advice.

The typical example? Those who tell you that you should incorporate or form an LLC to protect yourself from a lawsuit.

That is horrible advice. Incorporation doesn’t protect you or your assets unless you are willing to defend them.

So, when someone tells you to “form an LLC because you can’t be sued,” don’t you believe them for one minute. You can, and you will be sued, and having an LLC won’t shield you from the fact that you still have to pay a lawyer to defend yourself when you get sued, regardless of whether the lawsuit has merit or not.

This is particularly true if you’re a small timer, because there is a fundamental disconnect between your approach to legal matters and the requirements connected with running a corporation, which is a somewhat complex process best handled by a lawyer. In the course of normal business, you will try (justifiably) to limit your legal expenses, and inevitably make a mistake or ten in the way your corporate legal affairs are managed by cutting corners.

If a larger corporation ever decides to sue you, the first thing their lawyer is going to do is subpoena and pour over every single scrap of paper your corporation has ever produced—or has failed to produce— and try to use every little inconsistency or omission as an excuse to pierce the corporate veil and come after you personally.

Now, my experience has been that these tactics rarely work, because the judge will keep your relative sophistications and means in consideration when deciding whether a particular mistake in your corporate conduct should be sanctioned. A one-person corporation that fails to conduct regular board meetings is not, as far as I’ve been able to see, held to the same standards of a multi-million dollar company that does the same.

That, however, won’t save you from wasting a metric truckload of money in making your case and defending against these accusations—and remember, you can’t win a lawsuit if you run out of money before a verdict, which is exactly what oppsing counsel will bank on.

My advice

Am I, then, advocating that incorporation is pointless?

No. I am advocating that it should be part of a broader legal strategy—one that you cannot afford to ignore until the day when Fedex shows up at your door with a nastygram.

And so, I will hand out the kind of advice I wish I had been given when I started my first business: hire a lawyer and establish a mutually-respectful working relationship with them now.

You don’t have to like them, but you do have to respect the fact that what they do is important to the long-term success of your business, even if they don’t contribute directly to your bottom line.

⇥ Why taxes never get fixed

The only truly fair taxation system is one that charges every person the same percentage of their income. That’s it—no exemptions, no tax brackets, no loopholes. If the tax system were like that, the only real way to gain an unfair advantage would be to avoid reporting all your income—which is already illegal in any case.

Better yet, governments would be forced to stop using taxes as a political and social tool—and social programs would become actual expenses reported to the public instead of lost revenue that never materializes and cannot be accounted for.

But this will never happen, because we’ve been taught that a uniform tax system is unfair towards the poor—a ridiculous lie originated by the rich and promptly bought up by everyone else out of convenience.

The much simpler reality is that, deep down, we know that fixing taxes—really fixing them—requires that we (no matter which category we’re in) also give up those privileges that we draw from it. And, of course, nobody, rich or poor, wants to do that.

This is particularly ironic in the case of the middle class, which is really on the receiving end of the shaft, and the geniuses who keep shouting at everyone within earshot that taxes are too high and must be lowered (be which they mean, of course, that they must be lowered for them).

And so, for lack of the simple will to face the actual problem, we live with a situation that is unfair all around—a situation in which someone whose income is well inside the top percentage point of the country can afford to pay an army of clever accountants to find the loopholes to allow him to pay a marginal tax rate that is lower than those in the bottom 20 percent.

Tax rates have nothing to do with it—they’re just a smokescreen thrown up for the masses.

⇥ No apology needed

I always get a chuckle when my kids do something they’re not supposed to, then turn around and exclaim “but I’m sorry!” as if that were the end of a problem. They remind me of Homer’s cries of “It’s my first day!” in Simpson Tide.

While kids who have figured out that apologies, on their own, will get them out of a lot of tight corners are amusing, however, I can’t say the same of adults. Somewhere along their personal development, people are not being advised of the fact that apologizing for a mistake doesn’t fix it.

To tell you the truth, I am not a big fan of apologies in general. I find them completely superfluous—like sugar in your coffee, they’re just empty calories, put there to cover up the inadequateness of your beverage.

In fact, I think it’s fair to say that I don’t really understand apologies, don’t expect them, and don’t care for them.

As far as I’ve been able to tell, there are three types of scenarios that others feel warrant apologies:

1. You failed through an act of fate. Even the best can’t take everything into account.
2. You failed through incompetence within the most literal sense of the world: you omitted to take something in consideration you should have.
3. You gained at my expense, albeit unintentionally. Life turned out the better for you, and you did nothing to stop it.

It’s obvious to me that #1 and #2 don’t need an apology. Of course you’re going to be sorry—the only circumstance in which you won’t is if you screwed up on purpose. So why bother?

As for #3, I’d much rather you were honest with me and gloated. I remember losing an office several years ago to a coworker whose only seniority claim was being better buddies with our mutual boss. Though, in his defence, he didn’t actively try to steal it from me, I took his apology with all the grace of a drunken elephant. He didn’t mean it. I knew he didn’t mean it. He knew that I knew that he didn’t mean it.

Besides, apologies imply the pre-emptive assumption of blame. And if there’s one thing I’ve learned, it’s that blame can rarely, if ever, pinned on any one person. Useless.

What I prefer to see is people who take control of their mistakes and fix them. Not screwing up should be the preferred goal every time, but screwing up and fixing a mistake sounds tons better to me than screwing up and apologizing for it.

⇥ Writing less to write more

How do people who have a seemingly unending ability to write do it? Is there a secret that the all-powerful cabal of professional authors is conspiring to keep from the rest of us?

The answer is surprisingly simple: they put themselves in the situation that is best conducive to writing.

This may seem obvious, but it apparently baffles a great many people. The truth is, it doesn’t take much to write¹, so long as you actually want to write.

The most important, and first, thing to do is to eliminate all distractions. Despite the recent onrush of apps whose authors seem to think otherwise, this doesn’t mean writing on a white screen with zen graphics slowly flowing across your screen and a soothing New Age soundtrack of gurgling brooks and seagulls calling in the background.

Eliminating distractions means getting rid of all those factors that give you an excuse to stop writing—remember, you are the one who is not doing the writing, so there is no point blaming externalities for your lack of discipline.

If you find yourself aimlessly browsing the Web, checking e-mail, or reading your Twitter feed, you should turn all those infernal contraptions off and write. If your phone keeps ringing, turn it off. If there is an army of kids shouting in the next room, close the door, move outside, or do the hip thing and drive to your nearest coffee shop.

Most importantly, use a writing app that keeps you focused on the act of writing. Remember that the Odyssey was composed on sheepskin with a stylus, and that The Old Man and the Sea came to life on the kind of clunky mechanical typewriter that these days can only be found in an antiques shop. The lack of choice in fonts, or the inability to underline, emphasize and bold words have never been a problem for authors until word processors made them one.

Next, try to stick to a formula that works for you. Journalists have been doing that for hundreds of years: notice, for example, how many news reports start with a lede that clearly summarizes the entire article in a single paragraph, followed by whatever additional information that the author feels necessary.

Besides the obvious practicality of helping a rushed reader get the gist of the article without having to read through its entirety, this setup also helps the writer adopt a checklist approach to getting the story written. You’d be surprised how effective it is.

Finally, you should set a word limit, which has two important roles. The first is to act as a deadline of sorts: when you’ve reached it, you’re done. The second is that it forces you to make your writing concise and effective—and that results in a more engaged audience.

For example, I am (apparently) known for the legendary length of my blog posts and e-mails. This stems from the engineer’s mindset of exploring every possible nook and cranny of an argument to make sure one has not overlooked anything, but it doesn’t work well in this context.

Thus, I have decided to try and keep posts down to five hundred or so words. I don’t always succeed, of course, but it’s definitely helped me refocus my writing and get to the point more efficiently. After all, it’s a basic form of respect for whoever decides to invest their time reading what you have to offer.

Sony Sends A Dangerous Message to Researchers

Corynne McSherry and Marcia Hofmann, writing for the EFF:

Sony’s core arguments — that it can silence speech that reveals security flaws using the DMCA and that the mere fact of a terms of use somewhere gives a company permanent and total control over what you do with a device under pain of criminal punishment — are both sweeping and frightening, and not just for gamers and computer researchers. Frankly, it’s not what we expect from any company that cares about its customers, and we bet it’s not what those customers expect, either.

That’s a great argument, and I couldn’t agree more. But there’s another aspect to Sony’s current situation that deserves a little attention in order to better understand the company’s conundrum.

Sony is clinging to a business model that no longer makes sense. Playstations are sold as loss leaders because Sony then makes the bulk of its revenues by being the only publisher of any PS3 game, thus collecting revenues and paying out royalties to developers.

This approach skews the market in many ways. Console games are notoriously expensive (and now you know why), and the cost of even becoming a developer is often well outside of all but the best-funded development firms. I haven’t dealt with consoles in a long time, but I remember that, when I used to work in the gaming business (that would be around fifteen years ago), a development model of the original Playstation would cost around $5,000—more than a top-of-the-line PC.

Sony’s deferred-revenue model works in markets where there is a high cost of access. The original Playstation could do things that were simply not possible with a traditional PC at the time—at least not without a significant hardware. Thus, consumers got access to amazing technology at a cut-rate upfront price and made up for it by paying a premium for games.

When the cost of market access goes down, however, this model is no longer sustainable unless the price differential between the initial investment and its actual value is very high. For example, Gillette can continue giving away razor bodies and then selling the blades at a premium because the former are essentially commoditized and cost next to nothing to manufacture.

Sony, on the other hand, has a rather big problem on its hands, because the subsidized cost of a PS3 is rapidly approaching the full cost of many consumer-level computer devices, and these devices are moving away from their traditional PC-like look and feel, thus encroaching on the consoles’ space while outperforming the latter in many areas. Why spend $300 for a console whose games cost $50–$80 when you can spend $500 on an iPad, where games cost $5-10 because Apple doesn’t have to subsidize the cost of the hardware?

You can argue, of course, that $500 is almost twice as much as $300, and the iPad hasn’t got nearly the same power as a PS3. And you’d be right—except that the iPad is also portable and can be used for a multitude of other tasks which the PS3 can’t perform because it was designed as a specialized tool.

This problem is not unique to Sony, but they seem hellbent on approaching it in a truly asinine way. Microsoft is in the same boat, but at least they have taken a much smarter approach with the release of XNA and by taking a softer stance on hackers, so they seem much better prepared for the inevitable changes to come.

Google and H.264 – Far From Hypocritical?

Simon Phipps, on the Google dropping H.264 from Chrome debacle:

But all these points are also true of Adobe Flash. So why not drop that too? Is it not hyprocritical to keep it? If you’re an absolutist, probably yes. But there’s a calculation going on here about steering the web into the level plains of truly open standards. H.264 support in the <video> tag is not the same as Flash support.

Simon (whom I greatly respect) makes some great points in his essay—primarily outlining the fact that an honest analysis¹ of what has happened needs to take a lot of complex and interrelated events into account.

I do think, however, that his conclusion is incorrect in this particular instance. Google is not a disinterested party in the video format war; it controls the WebM codec de facto, because it originates the format and because several of the big-name members of the WebM consortium derive large portions of their income from it². It also controls YouTube, which is arguably the largest repository of videos on the Web.

Flash seems more like a red herring to me—the real question is, where are the disclosures? This action and the naïve reasoning that Google has presented gives no consideration to what a company whose motto is “do no evil” apparently stands to gain from this move, which could be something as simple as not wanting to worry about having to pay for royalties five or ten years down the road³.

What worries me and what I’d think should have worried Simon is the fact that this move reduces customer choice, which goes against the very principles of openness that Google claims to support. Given the current situation, under which they can continue to use H.264 without any significant cost, the appropriate choice would be to leave the codec in and let the market decide. If the open-source model yields a better result in the long run, as I believe it does, then there is nothing to fear.

⇥ LLCs are a good idea, but you can still get sued

On his blog, Joe Stump says that opening your own limited liability company (LLC) is a great way to protect yourself and your assets from unwanted legal attention when you segregate your side projects into it.

He is, of course, absolutely right. An LLC creates a separate legal person for third parties to enter into agreement with without all the complexities of owning and running a corporation. If one of those third parties decides to sue, they’ll have to initiate legal action against the LLC, protecting you and your assets.

If you do decide to open an LLC, however, there are a few things that you need to be aware of.

Note: I am not a lawyer, so take these notes as very high-level and not necessarily accurate. If you are a lawyer and spot inaccuracies, please comment so that I can take care of them.

1. The LLC is a separate person

If someone decides to sue your LLC, they will at least try to get to you personally. After all, the legal fiction of corporate personhood exists specifically to create a cushion between you and the LLC’s liabilities. The process of “getting to you” is called “piercing the corporate veil”—that is, getting a court to look beyond the fiction of corporate personhood to get to the person behind the curtain.

Piercing the corporate veil is a very difficult thing to do (as it should be), provided that you treat the LLC as a separate person.

In practice, this means that you must conduct the affairs of the LLC separately from yours, establishing that, when you are acting on behalf of the LLC, you do so in the LLC’s best interest as it is your fiduciary duty. This means taking care of a few formalities, like keeping your business license current, opening separate bank accounts and, especially, avoiding commingling your personal funds with the company’s. It also means that you cannot use the company as a shield to commit fraud, and so on, and so forth.

So, no treating the LLC as your personal piggy bank. Make sure you record all financial transactions, and always act in the best interest of the LLC, and not your own.

2. Get a lawyer

Lawyers are expensive. There is no way around that. However, unless you are a lawyer, it’s best if you leave the formation of your LLC to one, instead of using one of these rubber-stamp services that are available over the Internet.

There are a couple of reasons for this. First, unlike a service, the lawyer will be able to offer you some advice on whether an LLC is the right thing for you, as well as give you some basic guidance on how to ensure that you run the LLC properly. Second, should you ever get in front of a judge, it looks good if you show that you make it a practice to refer legal works to those who are expert in the field, rather than taking matters into your own hands, not to mention that, if the lawyer screws up, you can go after his or her insurance.

Oh, a final piece of advice: I often hear people complain about lawyers as if they were the scum of the Universe—they’re ignorant, lazy, stupid, greedy, evil… take your pick. That is, in my experience, the best way to ensure that the relationship with your lawyer will be unproductive and expensive.

Lawyers are experts in the law—a field that is often illogical and difficult to understand for the lay person. Which, incidentally, is exactly what non-techies say of programming. So, find a lawyer you can work with and make sure that your relationship is based on mutual respect.

3. Get an accountant

The LLC is a separate person, which means that it needs to file its own tax return. Even if you think you can file it yourself, it’s always best to get an accountant—once again, the reason is simple: what best way to act in the interest of the LLC than getting a third party to validate all the financial data?

That’s not to say that you need an audit, but it’s always good to get a CPA to double-check your calculations. And, once more, there’s another insurance that you can collect from if they screw up.

4. You can still get sued

The worst thing that anyone can tell you is that starting an LLC means that people can’t sue you. That’s no more true than saying that crossing over the zebras will prevent a car from running you over.

Nothing prevents any person from suing your LLC or you personally and, since the legal system works on default, you will have to spend the money to defend that lawsuit, no matter how frivolous.

What the LLC does is to provide you with protection from the results of a legal action. A determined party with deep pockets will still be able to take you to court in an attempt to pierce the corporate veil, make you spend considerable amounts of money and, generally speaking, eating a ridiculous amount of your time for a number of years. Having an LLC in place, provided you’ve behaved properly, will eventually protect you from the consequence of an action, but the process that gets you there will still be long, stressful and extremely expensive. That’s where having a good relationship with your lawyer will come in handy.

⇥ WordPress, the GPL and cherries on top

The WordPress community is abuzz with news that the WP Foundation has essentially gone to war with the makers of the Thesis WP theme. The substance of the argument, as I understand it, is that the makers of WordPress claim that themes, since they rely on WP’s GPL’ed code to run, must be covered by the GPL as well because they are derivative works. Thesis, on the other hand, is distributed under a commercial license, therefore violating this tenet.

I have, in the past, expressed my dislike for the GPL, which, inevitably, colours my “legal” opinion on the matter—though, I assure you, this post is not about the GPL and I have absolutely no intention on engaging on a debate on the license. Write me or comment on the GPL and I will simply not care—you’ve been warned.

Legal opinions abound

As always when a legal matter is involved, everyone and their dog is giving an opinion. Matt went and asked the Software Freedom Law Center to officially render theirs, and they came through, true to their name, with a nine-paragraph letter that illustrates how themes are, in fact, derivative works covered the GPL.

Arguments on the other side of the fence typically focus on the fact that themes are not derivative works, or because of the fair-use doctrine¹.

Personally, I find the SFLC’s argument very weak from a technical standpoint—particularly in the citation of the use of include (which is not a function²) as justification for their claim that themes are derivative works. Includes are designed specifically to create interoperability between different programs—in the world of PHP, where there is no concept of “binary,” they are the equivalent of dynamic linking.

One would have to physically copy code between projects, or physically include files from another project in a new work, in order to create a derivative work in this context, and to claim that themes do this is simply ridiculous because WordPress is designed to be expanded in precisely the way that themes are developed. To impose the GPL on themes—unlike, say, imposing it on a fork of WP itself, which would be perfectly logical—is to restrict a developer’s ability to interact with a particular piece of software and this would constitute an artificial limitation on a developer’s ability to interact with WordPress, which could give grounds to a fair-use claim.

Obviously, the SFLC probably believes that any form of linking or reliance of a piece of software upon another creates a derivative work, and they may well be right. Larry Rosen of the OSI believes that the determination of what constitutes a derivative work in the context of software should also take into account the element of intent—that is, whether the author of the work in question wrote their software in a specific way because they were aware of and attempted to circumvent the application of a license to derivative works. If he’s right, building a theme cannot possibly constitute the creation of a derivative work—again, WordPress is designed to be expanded, and it cannot taint downstream work that is not a direct derivation of itself, much like Linux cannot impose the GPL on commercial drivers or on commercial products built on it³).

Legal opinions are meaningless

Here’s the kicker: what I think is meaningless. What Matt thinks is equally meaningless. And what the SFLC means is most meaningless of all.

I am not a lawyer, and neither is Matt. The SFLC, which has an obvious bias towards the enforcement of the GPL⁴ is made up of lawyers and they, more than anyone else, should have made sure to cover their collective ass and Matt’s by explicitly pointing out that there is but one legal opinion that matters: that of a judge and jury.

Unless the WP Foundation ever takes the makers of Thesis to court, therefore, all these “legal opinions” have absolutely no legal value whatsoever. They are nothing more than a form of posturing and an exercise in public relations in the world of court opinion, to cite Adlai Stevenson.

And that is what puzzles me, because from a business and strategic perspective, the WP Foundation has nothing to gain from this exercise. Let’s look at the possible outcomes:

• The WPF could sue and lose, and look like idiots who spend their time litigating rather than innovating (which is what they should stick with).
• The WPF could sue and win—and still look like idiots because the implications of themes being covered by the GPL would have an enormously chilling effect on the professional WordPress community. More than that, they would have to sue every infringer, or risk looking like they are pursuing some secret Matt-centric agenda.
• The WPF could do nothing and look like warmongering zealots—belligerent only in words, all they would achieve is a polarization and eventual schism of the community between those who believe that software is free, and those who believe that GPL is about freedom.

The way I see it, there is no possible outcome of this diatribe that could benefit the WPF, which is why I am puzzled.

Incidentally, you may be wondering why I think that GPL’ing the themes will be problematic for the entire community. Well, what I am wondering is: how will it affect the thousands of freelancers who create custom one-off themes for clients?

This is a big problem, because the GPL does not attach itself to a derivative work until you distribute it—this is why, for example, you don’t need to release GPL code if you hold copyright and use it for your internal purposes. If you are a freelancer, however, you normally hold copyright on a theme you develop but don’t use it for your own purposes—you give it to a client under some sort of license… which is exactly what amounts to distribution.

Unless you assign the copyright in your work to the client (and why would you want to? You are a freelancer, not an employee, and giving up copyright in a particular work is tantamount to giving up your trade secrets), you are, effectively, distributing the theme you developed, which now becomes covered by the GPL. Should the theme somehow include code that is owned by the client—for example to interface to one of their internal systems—that code might well be covered by the GPL, too, thus opening a can of worms of elephantine proportions: the client has gone from ordering a bunch of templates for its website to having to open-source and distribute its own proprietary code. If I were said client, I’d probably be switching to another CMS right now.

Naturally, the WPF could say that it won’t pursue those cases, but they don’t get to choose what the GPL attaches itself to or not—remember, the GPL is not GPL’ed itself: you can’t modify it, you can only use it or not use it. And the GPL says that derivative works must also be released under the GPL period.

So, what the WPF thinks the GPL applies to and what it actually applies to could be two completely different things. Therefore, while you may not get sued by the WPF for writing a proprietary theme specifically for a client, the GPL may still apply to it and all the code that is part of it—which means that, if your theme uses a client’s proprietary code, you’re both in potentially big, big trouble.

So, what should the WPF do?

First, it should back off; this fight isn’t helping anyone—least of all the WPF itself.

Second, it should draw very clear lines in the sand:

1. WP is released under the GPL, and so has to be any direct contribution to core or fork thereof.
2. Themes and plugins are not derivative works and are not covered by the GPL and can be released under commercial licenses.
3. Themes and plugins distributed by wp.org must be released under a GPL.

This creates a fair and balanced set of clear guidelines for everyone to follow: if you want the exposure of wp.org—for example to increase your reputation and credibility as a WP expert freelancer—you have to release your code under an open-source license. If you want to distribute your code commercially, the burden of promotion and public relations is on you since the community doesn’t benefit directly from your work.

Now, I anticipate that some will simply say that, under my proposal, nothing would prevent commercial vendors from circumventing the fact that core is GPL and simply using plugins to effectively fork WP without forking it. Well, nothing has prevented them from doing that until now⁵, so how would this be different, other than giving developers and freelancers the confidence that the WPF board isn’t going to wake up on the wrong side of the bed one day and start suing people left and right?

Maybe the RIAA can get a discount

Recording Industry vs. the People:

The RIAA paid Holmes Roberts & Owen $9,364,901 in 2008, Jenner & Block more than $7,000,000, and Cravath Swain & Moore $1.25 million, to pursue its “copyright infringement” claims, in order to recover a mere $391,000. [ps there were many other law firms feeding at the trough too; these were just the ones listed among the top 5 independent contractors.]

Embarrassing.

Not really. From a corporate perspective, what choice do you think these executives had? Had they done nothing, they would be in breach of fiduciary trust—they’ve been pushing for these laws and now they have to enforce them. $17 million is chump change compared to losing their jobs and facing a shareholder lawsuit (especially given that it’s not their money).

The real tragedy here is not that the DMCA exists, but that the RIAA has made a major strategic mistake in utilizing it. If they only went after people who infringe copyright for profit, I don’t think anyone would have a problem with their legal actions. If you think that someone making a million illegal copies of a DVD and selling them is doing a good thing, you have some serious ethical issues.

But the RIAA chose to go after individuals, which is as pointless from a financial perspective as it is self-destructive from the point of view of public relations—and now it’s too late to truly change course and gain any public trust.

⇥ A little bit of Apple, a little bit of Adobe

There seems to be a distinct lack of perspective in the whole Apple vs. Adobe war—perhaps it was inevitable that something like the by now infamous Clause 3.3.1 of the iPhone OS SDK agreement would polarize people so much.

First of all, because I suspect that my readers will make a big deal out of it, I stand by my previous post on the whole Apple thing. Feel free to disagree, but even the introduction of the new clause, which limits “sanctioned” iPhone OS apps to those that are written in a handful of official Apple languages, doesn’t limit your ability to tinker with the OS. It does, of course, limit your ability to deploy, which, depending on what your ultimate goals are, may be a significant problem—but it doesn’t prevent you from writing apps for the platform, including those you develop using one of the “forbidden” tools.

A little bit of Apple

Some of the arguments that the Apple camp uses to justify the existence of the new clause seem a little specious to me. Gruber’s analysis on why the clause exists¹ is probably spot on, but his conclusions are a little disingenuous. Section 3.3.1 was clearly introduced to developer lock-in and protect Apple’s significant profit margins on the sale of iPhone OS devices—after all, cross-platform development tools like Flash or Titanium are about levelling the field by deploying across multiple devices with a single codebase; if apps look and behave the same way on multiple platforms, the argument in favour of spending your money on Apple devices loses much of its value.

What I haven’t seen mentioned is that §3.3.1 also ensures hardware lock-in, because now there truly is no way to develop software for iPhone OS unless you’re on a Mac. This was true before, as well, but only to a certain extent. Prior to the new agreement being introduced, if you chose a cross-platform development tool, you could conceivably run a team on Windows or Linux and then buy a single Mac—even an entry-level Mini would have done—for building, testing and deployment. Your only choice is now to be an all-Mac shop.

The leap that Gruber—and Jean-Louis Gassé, in a piece that just came out this morning—make from realizing the §3.3.1 is about lock-in to claiming that cross-developed applications are inferior, either in terms of performance or quality, is laughable. There are plenty of hideous apps in the App Store—most of which have been built with the native tools. Tools don’t make developers—they are just tools. Twenty years of experience in the IT industry tell me that poor programming skills will show no matter what platform software is written on.

Besides, if ensuring quality were really Apple’s ultimate goal, they have all the tools—legal and otherwise—to do so today, without the need for any new clauses. They could, for example, start enforcing their own human interface guideline policies; there are plenty of apps that blatantly violate them² in the store even though they have been built using sanctioned tools. Ditto for performance—Apple’s own mail client struggles, at times, when selecting multiple messages even on the iPad, which is probably the fastest of all iPhone OS devices. If these are the things that matter to Apple, §3.3.1 is not the answer to them.

As for the topic of this being Adobe’s comeuppance for snubbing the Mac when that platform was struggling, I have no comment to offer—mostly because I wasn’t either a Mac or Adobe user at that particular point in time. But it seems to me that Steve Jobs has shown himself to be a much-too-focused executive in the last ten years to embark on personal vendettas. Even his spate with Michael Eisner over Pixar was, in my opinion, much more about shrewd negotiations than personal antipathy³. Alas, the vengeance, if it exists, is only in Steve’s brain—a place I respectfully want to stay out of.

A little bit of Adobe

The bitterness on the Adobe side of things is a little disproportionate to the events, I think.

Claiming that Apple is out to damage the launch of CS5 is just plain silly. Sure, the iPhone OS 4 event might have been a little suspiciously timed, but Flash’s ability to cross-compile to iPhone OS is a relatively minor feature of CS5. As a developer, Flash does little for me—it’s a designer’s tool. My interest lies more with tools like Flash Builder or AIR2, which make a heck of a lot more sense to me than Flash itself. As far as CS5 goes, I’m much more fascinated (and not a little freaked out) by Photoshop’s new content-aware fill than what Flash does.

What’s more, I wouldn’t rule out Flash as an iPhone OS development platform altogether. True, you can’t sell the software you write with it on the App Store, but that ignores a huge segment of the market for which Flex and Flash are ideal platforms: internal-use applications. I have, in the past, mentioned that I believe this to be AIR’s best market: scenarios in which an IT department needs to deploy tools to a heterogeneous, but captive, environment. If I were building a management console for a company of any size, I would not hesitate to recommend that they use Flex and AIR for it, even for iPhone OS deployment. Bypassing the App Store in these cases is not just easy—Apple gives you all the sanctioned tools you need—but also desired, and the ability to build a single codebase could signify major savings for any company without necessarily compromising the unique per-device experience⁴.

By the same token, stating that Adobe should simply stop making products for Apple platforms is just plain stupid. Never mind that Mac users are likely a large source of revenue for the company—screwing customers over hardly seems to be the way to solve this issue. You’d think the whole Kindle-vs.-iBooks spate would have taught these people something.

Kevin Lynch, Adobe’s CTO, has offered a fairly measured response to the §3.3.1 issue—but I must admit that I, for one, was disappointed that he should be the company’s spokesperson on what seems to me like a business, rather than a technical, issue. He should have focused on the technology aspects of CS5 and leave the CEO to address Apple’s perceived shenanigans.

Some of the responses from the company’s evangelists were regrettable, but, in my opinion, understandable. It must be difficult to be so focused on a product launch only to see your thunder seemingly taken away by a company that has no immediate reason to. Still, I prefer Ryan Stewart’s approach of looking at this as what it is—an opportunity to improve the Flash tooling.

By way of disclosure, Adobe is a client of Blue Parabola. I also write iPhone OS software. Take your pick of biases.

¹ I am probably overreacting, but I can’t help thinking that Gruber’s analysis is a little too spot on. I absolutely don’t want to accuse him of anything, but the fact that he was able to hone in on that one clause of the agreement as the 4.0 beta had barely become available raises substantial questions.

² I don’t mean here that all apps need to look exactly the same, but that they should offer a consistent interface across the entire platform. Human interface guidelines are about user experience—not colour and pictures. They are what gives “good” OS X applications that distinctive “Mac” feel.

³ Say what you will about Eisner, but he was exactly the kind of person that Disney needed at a point in time when its management spent most of its day attempting to wonder what Walt would do. He was brash and abrasive—and managed to bring order to what had become a chaotic company. And, when he was finally done with what must have been one of history’s best turnarounds, he was shredded to pieces by the Disneys with little regard for his accomplishment. Luckily, he’s been replaced by Bob Iger, who seems to be just as capable without grating people the wrong way.

⁴ Of course, nothing prevents stupidity from making people write a single app that looks bad on all platforms—but that has, again, nothing to do with the tools and everything to do with incompetence.