Over the last few days a debate has flared up over the GPL (the GNU General Public License). Specifically, the debate relates to the refusal of DIYThemes to release its WordPress Thesis theme under the GPL.

The details of the debate encapsulate a major nerdfest, with legal and technical nerds crawling out of their boxes and greeting the world. But beyond this, the debate has much wider implications.

In fact, at Vox Sapiens we wonder whether this debate will be seen as the tipping point that identifies the crest of the Open Source wave. We think that, maybe, the strength of the Open Source movement will wane from this moment because of the fear and confusion that is being created.

The heart of the current debate itself centers upon what constitutes a derivative work, because the GPL license mandates that any derivative work of a GPL-licensed product must inherit the GPL license. The representatives from the WordPress developers claim that themes written for WordPress are derivative works – and therefore must be distributed under the terms of the GPL. This means that customers who pay for a premium theme are then able to give away copies of this theme (recipients of these copies would not be entitled to support from the theme developers).

Many premium theme developers have been persuaded to adopt the GPL, but DIYThemes refuses to do so and the representatives of the WordPress developers are being urged to take legal action.

The case of DIYThemes is, legally, a bit of a red herring because a former employee has admitted that lines of original WordPress code have been copied and pasted into the Thesis theme. So it is pretty clear that DIYThemes would lose a copyright case on this point. But many commentators are blurring the issue by not differentiating between the “copypasta” and the definition of a derivative work.

To make matters worse, many commentators are also suggesting that customers of DIYThemes are also legally liable for using the Thesis theme, even though the GPL applies to distribution and not users.

The Vox Sapiens opinion is that the debate has escalated into one with only one possible outcome – and that is lose-lose. Furthermore, we see this war as different to previous technical or legal disagreements in the Open Source arena, and we predict the slow decline of Open Source as a result.

At Vox Sapiens we are disappointed by a recent FT article which appears to show sloppy research. We have long admired the quality of the research and analysis in the FT compared to many other newspapers. However, today’s article appears to have taken an idea from an old article and repeated it almost verbatim, thereby misleading the reader. We are using this as an example of how it is important to be careful when using the Internet for research.

The article in question relates to Toyota – When sorry is the hardest word. In the article the author states:

A related weakness, says Hisao Inoue, author of Toyota Shock, a book on Toyota’s recent problems, is that Toyota’s relentless growth has amplified its conservative culture, by favouring bureaucratic conformity and discouraging the sort of negative views that are vital to anticipating disaster. “People with contrary opinions used to be respected, but today’s managers have succeeded by getting along,” he explains.

So as readers we probably assume that the recent problems referred to in that quote are the recalls that started earlier this year? Well, unfortunately these problems are not the subject of Inoue’s book. Consider the following from June 2009:

Hisao Inoue, author of “Toyota Shock,” a book that chronicles the automaker’s recent troubles, said Toyota sorely needs what he called “a philosophy” or “a spirituality” that a founding family member like Akio Toyoda might offer.

Source: Japan Times, Toyota counting on family ties

So Inoue’s book was published before June 26 last year. But Toyota’s recall-related problems began to become a public problem when?

Well here at Vox Sapiens we actually discussed this matter in a previous post. The post Toy-woe-ta – Looks like a business school case study in the making was published in January this year. In the post, we don’t name the exact date when the issue regarding floor mats preventing accelerator pedal release became big news. But a quick search shows that this was September last year – three months after the Japan Times article. (See, for example, Toyota/Lexus Consumer Safety Advisory: Potential Floor Mat Interference with Accelerator Pedal.)

So Inoue cannot be referring to the floor mat recall nor subsequent problems.

Sorry FT, but this just isn’t good enough.

We would have made these comments on the FT.com website against the article in question, but unfortunately this article appeared not to have comments enabled.

So Microsoft (presumably on the advice of lawyers) used the DCMA (Digital Millennium Copyright Act) to force Cryptome.org’s hosting provider, Network Solutions, to close down the website and keep a lock on the domain name to prevent the site being relocated. Then a day later the complaint was rescinded, allowing the site to be restored.

This was a bad thing to do? Why?

OK, where should I start?

Well firstly, it brought huge publicity to the situation, and the number of people aware of it is now many orders of magnitude greater than it would have been. Cryptome.org’s typical readership is a combination of technogeeks, political activists and privacy specialists. Most would have a good idea where to find a document that other parties might wish to keep out of cyberspace. So even if Microsoft had been successful in forcing the removal of the document from the Cryptome.org site, it would have appeared somewhere else, and the people really interested in it would still be able to get to see it.

Secondly, Microsoft has egg on its face. Such a sharp reversal of policy in 24 hours hints at a lack of crisis management expertise in Redmond. Theoretically this could impact the share price, particularly because Microsoft is not a stranger to legal battles, albeit ones that focus on monopolies rather than copyright.

Thirdly, it is another thing to think about when registering a domain name, and could impact the US-located domain registrars’ businesses. If Cryptome.org had been registered with a foreign domain registrar, it would have been out of the reach of the DCMA. I assume this is one reason behind the choice of registrar for Wikileaks. Even if you are a non-US business using a non-US server your site can still be brought down, permanantly, if the domain name is registered through a US registrar.

And fourthly, and most importantly, this will really scare a huge number of Microsoft customers and potential customers. By bringing this action, Microsoft has made the general public aware that it is keeping track of what they are doing, and archiving the information that it knows. Long term, this could be very costly indeed.

This is just the latest in a string of similar foolhardy activities. Why did people not learn from Bridgeport Hospital, from Julius Baer, from Royal Dutch Shell, and from many other large organisations?

When will lawyers learn that just become something is “the law” and their client is “in the right” there might be very good practical and strategic reasons to avoid attempting to enforce it. And when will the large organisations learn to manage their lawyers instead of being managed by them?

Recently I was re-reading Theodore Levitt’s epochal Marketing Myopia and considering the basic premise that companies are not defining their markets correctly (by being product-orientated or service-oriented rather than customer-oriented) and therefore not following the market as it migrates to an alternative product or service to fulfil the same underlying desire.

Then it struck me that maybe there is an exception for which a replacement has not been produced, and maybe cannot be produced …

What about tobacco?

I have been unable to think of an alternative product or service that a tobacco or tobacco product (cigarettes, cigars, mainly) company can produce.

If this were possible, don’t you think that either an existing tobacco company would have staked its claim on this new market or that a new competitor would have muscled in?

Don’t you think that the reason that people find it so difficult to give up smoking is precisely because there is no viable alternative? That the so-called alternatives have been unable to fulfil the same need that a puff of a cigarette meets so effectively?

And if this is the case, what are the implications?

Well apart from legislating smokers into secluded “baccy dens” there seems to be little to reduce the size of the existing market. And 30 years of anti-smoking advertisements have not been exceptionally successful in deterring new adopters. So maybe tobacco companies are the ultimate survivors? Maybe the safest place for a stock investor?

I’m happy to be proven wrong. If there is an alternative to tobacco, please tell me.