Very good reading, even with a couple of poor questions.

Will the Free Software Foundation or any other group take DIY Themes to court for GPL licensing enforcement in 2010?
Yes 1/2
No 8/5

Will DIY Themes relent on its own and distribute the Thesis Theme/Frameword under a GPL license in 2010?
Yes 5/2
No 1/3

Will Chris Pearson personally sue Matt Mullenweg for lost revenues, slander or defamation in 2010?
Yes 3/2
No 4/7

There’s a few interesting issues about this bit:

1. Apparently there is some business to be made in contacting other bloggers to promote content, because this dude kept emailing me about this. That’s fine, because this is actually sort of interesting. Next time offer me a laptop or something, though, so I can be like the Microsoft bloggers.

2. Whoever wrote up the story summarizing the drama on the SBRForum did a damn good job. It’s hard to be sure – because anyone reading this probably has a technical background – but I think even a non-techie can follow the basics from the story.

3. People really will bet on anything, won’t they?

My Solution

If I were really vested in this issue and had money (and my last name was Mullenweg) this is what I would do: I’d just buy a copy of Thesis and then start distributing it. From the front page of WordPress. Hell, I’d make it the default theme, push it out as a “critical update”, and announce it all on video in a leotard with my face painted up like The Ultimate Warrior. (Don’t miss the “Warrior Fine Art Gallery”!)

For one thing, this has already moved past the “let’s handle this thing internally and like gentlemen.” After that stage, I’d move right to ”BRING IT!” Us zealots only see things in black and white, you know.

For another thing, despite the possible uncertainty of the “derivative works” issue, we know that Thesis contains straight up ripped-off GPL code. Those versions of Thesis are unquestionably violating WordPress copyright.

This is the problem about being a dick – you might be able to get away with it so long as all your ducks are in a row, but ducks have a hard time staying in a row. Call it Karma. And then call it to the stand.

Do it for the lulz, Matt!

Edited to add: Alas, it hardly matters now, as Thesis has done the right thing and now the PHP portions are under GPL, and the CSS/JS bits under the whatever proprietary terms that who cares about.

BashQL is a stupid little python script that lets you perform SQL queries on the output of shell commands.

Use case and example:

I wanted to compare what was actually installed by my package manager (pacman -Q) against all the subdirectories where I create the packages for installation (ls -1 /pack):

jason [ ~/Projects/bashql ]$ ./bashql "select * from [ls -1 /pack] where filename not in (select col0 from [pacman -Q])"
filename
---------------------
cairo-compmgr
cdm
cw
dhcp
[...snip...]


Rationale

Granted, for any given single comparison or task like this, it’s easy enough to whip up a short script in whatever language you choose. But, if you already know SQL this has the advantage of using that syntax along with “generic-izing” the problem.

Rambling

The only thing you need is python, because it should include sqlite – which can create a database in memory – so you get everything you need there. Assuming you already know SQL, all you have to do is put the commands in square brackets and the SQL command in quotes. Tables and columns are named as tableX and colX where X starts at 0.

You can create a [command_name].bashql file to tweak parsing the output, and name columns. Note that it is impossible to cleanly parse ls, so don’t get all up in my nose about that. Use ls -1 and don’t have newline characters in your filenames and you should be fine.

This is just a little tool I threw together, so it’s not robust and there isn’t any error-checking. If it were aimed at anyone but me, it would be people that know SQL well and spend a lot of time on the command line.

Alternatives

There’s a project like this, ShellSQL – which apparently was originally named bashql. It takes a different approach and might be of interest if such things interest you.

It’s obvious that a more robust and non-tacked-on-top solution would be fantastic, but unless I totally missed it, there’s no such animal.

http://blogs.gnome.org/bolsh/2010/07/19/rotten-to-the-open-core/

Most of the reading at this point walks well-trod ground, but  one bit of commentary by The Accidental Businessman (Marco Tabini) deserves special attention:

You could say that Matt’s opinion counts, because he wrote the software and he should have the right to decide how his software is distributed and under what rules.

I couldn’t agree more—except for one minor detail: Matt made his decision when he chose to distribute WordPress under the GPL. From then on, both he and any user of WordPress are bound by the terms of the license, and not by what anyone thinks. Matt doesn’t enforce the license: that’s for a court of law to do. Therefore, what he thinks at this point only has value, from a legal standpoint, if a competent court determines that the terms of the GPL agree with him.

This, incidentally, is one of the biggest concerns that I have with the GPL. It’s a license that enforces a very particular meaning of “freedom” whose nuances a developer may simply not understand. Case in point: Matt may well believe that themes must be released under the GPL as derivative works, but there is no real case law to back this belief. The FSF says so¹, but they are less than intellectually honest by not admitting that they do not have the legal standing to back their claims.

The reason why I say that this is not a legal issue, therefore, is that, unless and until the WPF sues a theme developer on the issue of whether a theme or plugin that doesn’t incorporate wholesale code from the main project² is a derivative work, this is a business issue that can deeply affect the future of WordPress if not handled correctly. Hence my points in the previous article.

One thing that many do not seem to understand that the enforcement of a contract (or a license) is, essentially, a failure of the contract itself. A contract exists so that two parties can have an understanding on how a business relationship should take place. If the contract is sufficiently clear and unequivocal, it should only ever be enforced if one of the parties maliciously and willfully breaches it and then refuses to cure the breach. If it is unclear and equivocal, as is the case here, the enforcement of a contract represents a failure to draft a proper agreement in the first place.

Let me say I disagree with the overall conclusion and opinion of the Mr. Tarbini as I understand it, but I do appreciate the points he raises.

GPL Motherfucker. Do You Understand It?

A thorny issue for me. Perhaps it is a failing on my part that despite reading the text (and rationale for GPLv3) I wouldn’t want to argue for high stakes in a court of law on the particulars of the GPL. Not only is the GPL complex, but copyright law is complex-squared.

Furthermore, it may just be my ego talking but I don’t put a lot of stock in GPL-interpretation by people who don’t do it for a living.

I’m not saying complexity or ambiguity is a GPL failure - perhaps the legal system itself makes it impossible to write something that is both understandable for a layperson and enforceable by a court.

I’m not being snarky.

GPL != Free Software

Another important distinction that doesn’t always get made: the GPL is not the be-all-end-all definition of Free Software. I look at the GPL as being the best attempt to enforce Free Software. I’m not aware of any license that does – or even attempts to do – a better job a promoting Free Software than the GPL.

Even so, consider the GPL is already on the third revision. For whatever reason earlier attempts fell short of the mark.

Therefore, I don’t think it’s out of line to realize that the GPL may fall short even if it may simultaneously be the best possible attempt – nor do I think such a problem invalidates either the GPL or Free Software.

Few things are without flaw or need of improvement.

Assume maliciousness and incompetence

There’s a famous bit about “never assume malice when incompetence explains”, but when dealing with GPL and Free Software, I think one must always assume malice and incompentence will be in play.

For example, business interests will always be looking for a way to get something for nothing (though never ever giving something for nothing! What are you – a COMMUNIST!) To them, exploiting Open Source seems like a free gold mine of research, development, software and support. Good business, maybe – but malicious.

Vast majority of “Open Core” falls in various degrees around this area. Rule of thumb: the louder and “Open Core” player trumpets “Open Source”, the further they are towards open-core-means-we-are-using-a-mit-licensed-tcp/ip-stack end of the spectrum.

Straight copying actual source code from WordPress into your theme that you insist isn’t a derivative work and isn’t under the GPL is malice too … in case you were wondering where to classify that.

Other area is incompetence. When Mr. Tabini asserts ”Matt made his decision when he chose to distribute WordPress under the GPL”, that’s incompetence. Matt never made a decision to distribute WordPress under the GPL – that decision was made for him, as he forked an existing GPL project.

Drafting an agreement

Having no choice ties into another problem with Mr. Tabini’s argument. Recall this bit:

If it is unclear and equivocal, as is the case here, the enforcement of a contract represents a failure to draft a proper agreement in the first place.

But! The parties  (in this case) aren’t entering into a meeting-of-the-minds and drafting an agreement.

One party has pre-selected terms that – hopefully - covers his software in a manner he finds acceptable, and with the expectation that people using his software will act in a compliant manner. To him, he sees the GPL as enabling something.

The other party, though, is doing something very different – because he views that same license as something to be subverted or ignorned.  To him, the GPL is disabling something.

If these two parties had sat down to draft an agreement, they would not agree on the GPL. That’s because one party wants to share code and the other doesn’t. The GPL isn’t a vehicle of agreement between those two parties.

A disagreement over a unique drafted agreement  isn’t what happens when people have a GPL issue – it is invaribly someone who wants to benefit from GPL software, while not being bound the same requirements that made it possible and available to them in the first place.

If there is any failing on the part of the GPL here, it is not in the eyes of the second party – that person doesn’t want to share his code anyway. If there is a failing it is that the GPL has failed to enforce the terms that the first party expected – which I think are in line with the expectations of Free Software.

Commenting on comments to the commentary

As usual I find much interest in the comments. Consider this bit (sorry couldn’t find a direct link, it’s the second comment):

The second biggest problem is the attitude that there is only one correct interpretation of the license and if you don’t agree with that interpretation you’re breaking the law.

Eh? Isn’t the entire problem – assuming everyone is not acting malicously – that there isn’t one correct interpretation?

If there were “one correct interpretation”, then exactly how would one go about justify acting in defiance of that interpretation?

Here is my favorite bit from RMS:

RMS: You shouldn’t write software to use .NET. No exceptions.

The basic point is that Microsoft has patents over features in .NET, and its patent promise regarding free software implementations of those is inadequate. It may someday attack the free implementations of these features.

This is no reason not to write and distribute free implementations such as Mono and DotGNU. But we have to keep in mind that using and distributing these programs might become dangerous in certain countries. Therefore, we should minimize our dependence on them – we should not write programs that use those features.

Mono implements them, so if you develop software on Mono, you are liable to use those features without thinking about the issue. It is probably the same with DotGNU, except that I don’t know whether DotGNU has these features yet.

The way to avoid this danger is not to write programs in C#. If you already have a program in C#, by all means use a free platform to run it. But don’t increase your exposure to the danger – don’t write additional code in C#, and don’t encourage people to make more use of C# programs. We need to guide our community away from dependence on an interface we know Microsoft is in a position to attack.

This perfectly illustrates the difference in approach from Team Apologista.

Consider:

Promises Promises

Team Apologista refuses to honestly acknowledge that the patent promise covering .NET is insufficient. In fact, a favorite tactic of Mono Apologists is to mention some other technology (usually AJAX or FTP) and then pretend the Mono situation is similar to AJAX, and so if one is opposed to the former, they must also oppose the latter, or are ignorant/hypocritical/whatever.

The truth of the matter is that .NET is NOT under the same “promise” that these other technologies are, so this ruse is dishonest inaccurate. Shockingly, Mono apologists continue to use this faulty “defense”.

Additionally, much of .NET (and corresponding portions of Mono) are NOT covered by any promise whatsoever – and despite Team Apologista’s occasional concession on this point (often with vague promises to “split” Mono into “covered”/non-”covered” portions), I feel it is not unfair to say Team Apologista downplays this distinction.

Furthermore, the covenant covering Moonlight is even more troublesome than that covering the ECMA-approved bits of .NET, yet I do not see a clear difference in promotion or eduction on these issues from Team Apologista. Again, to be polite, “downplaying the problems” is a fair characterization.

RMS points out that “if you develop software on Mono, you are liable to use those features without thinking about the issue.” But I think it’s more than that – I think Team Mono has intentionally obscured the facts to make it more difficult to think about the issue. It goes beyond counting on people being too lazy/uninterested to examine things right into deliberate misinformation.

Dependency Hell

Team Apologista actively promotes Mono/Moonlight for Mono/Moonlight sake, increasing dependence on Mono (and by extension, Microsoft’s goodwill).

The entire path into GNOME for Mono is entirely based around a simple note-taking application! Pure insanity! Even if one accepts the argument that a note-taking application is so important that a desktop suite simply can not do without one, the answer is not to roll up one that requires an otherwise useless and seperate framework to support it, and further not to do away with it immediately once an acceptable replacement exists.

The foolishness, technical idiocy, and blatant transparency of the Tomboy debacle in GNOME combined with the latter retarded arguments that “oh well, now that Mono is in there, might as well bring in even more Mono apps” is clear evidence that something’s rotten in the State of the Art over at Team Apologista HQ, and immediately and conclusively puts to the lie any technical-based argument in support of Mono.

There are many more (thankfully, less sucessful) attempts to increase Mono dependency in GNOME and in major distros. Usually taking the form of simply rolling out yet another implementation of existing application functionality – but this time written in awesome Mono – most of these projects have failed to gain footholds. It doesn’t stop Team Apologista from trying, though. Desktop Search? Need it in Mono! Torrent client? Need it in Mono! Photo editor? Need it in Mono! Media Player? Need it in Mono!

Why the need to re-create everything in Mono?

To go back to RMS’ point: “Don’t increase your exposure to the danger.”