Last week Boston University student, Joel Tenenbaum was ordered to pay a total of $675,000 to 4 record labels for illegally downloading and sharing 30 songs. Two years ago a similar case cost Jammie Thomas $222,000 over 24 songs. In April of this year 4 men were convicted by a Swedish court over copyright infringement due to their connection with The Pirate Bay file sharing site. They were also ordered to pay $36 million in damages to several entertainment companies.
Of course each will be replaced by new names in the coming years. The RIAA may have won some battles, but in the long war over DRM they will surely lose as there are laws that will always supersede the laws of the court, namely the laws of reality. DRM is failure.
Over the last few months I’ve been following two stories near and dear to the web design and WordPress communities. The GPL licensing of WordPress and the issue over web font licensing. Both are essentially the same story as that of the RIAA and digital rights management and, in fact, are the same stories as many others in recent years as new technology has come in conflict with copyright and licensing.
In the end businesses and industries will fight to protect their copyright, but the law of reality dictates their only solution is to adapt or die.
WordPress Themes, Plugins and the GPL
As you likely know WordPress is distributed under the GNU General Public License, version 2 of the GPL to be exact. Without going into too much detail that means that anyone can take WordPress and redistribute the code as their own. It also means that anything built on top of WordPress must also be distributed with the GPL.
That creates something of a problem for theme and plugin developers. As WordPress has grown so has the market for themes and plugins. At first both were usually given away free, but over time authors wanted to be paid for their work. How though, to sell something over and over when anyone can take your work and redistribute it for free or even sell it themselves?
There have been debates about whether to release themes and plugins under GPL and whether or not you really had to use the GPL license. And if so would it cover all your work or only specific parts of it. Others have looked for ways around the GPL, complain about the GPL, or continue to release their work under their own proprietary license.
Of course a license doesn’t prevent someone from redistributing your work, the same way the illegality of downloading and sharing music hasn’t stopped anyone.
With a few minutes searching you can easily find sites offering free downloads of many themes with both GPL and non-GPL licenses. The reality is it’s simply too easy to copy a digital work and redistribute it. Shut one site down and 2 more move in to take it’s place. Reality supersedes legality.
Even if I don’t steal your code, I can still see what you’ve done and write my own code to do the same. The reality is your license won’t prevent duplication for long.
To date there hasn’t been a legal test case, though Matt Mullenweg did consult an attorney over the matter. The end result led to the official word that anything php or wordpress related automatically fell under GPL, regardless of the license attached, however design (images and css) could still retain its own copyright and license. Again no one has tested any of this in the courts.
With or without court ruling, there has always been other reasons to offer themes and plugins under the GPL since, your work could then be included in the WordPress repository. WordPress has a much larger distribution system than most theme and plugin developers. The GPL could cost you some sales but, the WordPress distribution would likely lead to more visibility and more sales than you would make under a proprietary license.
Many theme authors have started supporting GPL, especially once Brian Gardner proved you could still have a business around WordPress and be GPL compliant. The sale of an individual theme is also not the only way to make money through WordPress. Adopting business models around support and upgrades has also proven to be profitable.
Plugin developers are still searching a bit, though I suspect they’ll soon adopt similar models as theme developers and perhaps begin offering free light versions of their plugins along with a more robust and feature rich paid version.
Pay themes and plugins are going to be shared freely. It’s going to happen with or without GPL, because it’s too hard to police. There’s legality and there’s reality.
Type Foundries, Font Choices, and DRM
For years designers have had a limited choice of fonts to use. Browsers could only display the fonts installed on the computer and so web designers usually limit their fonts to ones commonly found on most machines. This has led to a lot of Arial and Verdana on the web.
Solutions such as sIFR, FLIR, and cufon have arisen to allow more font choices, but still those fonts are best used in small doses. On the horizon is the css3 property @font-face where you can link to any font located on a public server. Sounds great, but it brings up licensing and copyright issues.
Creating a new font or family of fonts is a lot of work and the type foundry deserves to be paid for their work. When raw font files are stored on public servers they can be easily copied and redistributed leaving foundries to collect little or nothing for their work. What’s a foundry to do?
Foundries want to license their fonts and prevent the technology that makes it easy to copy them.
I won’t profess to understand all the details, but several methods for protecting fonts are currently being worked out, though none have yet to take hold and perhaps never will.
As I’m not a font designer I apologize if I’m missing some of the story, but from what I’ve been reading it strikes me that foundries are trying harder to hold onto the old, much the same way the RIAA is. No matter what solution for protection is ultimately adopted it won’t be perfect. If you put it on the web, I can figure out a way to copy it.
One solution exciting the foundries is Typekit, which aims to protect fonts and require a rental fee for using them. I can’t see it working for most web designers and site owners. Yes, we want a better selection of fonts, but it’s a hard sell to clients. I’m pretty sure most clients will immediately ask if there are free fonts that can be used instead.
Permissions tables sound like a better solution to me.
Perhaps larger organizations will gladly rent a font to have something unique, but in that case why not develop a custom font for them?
One of the inevitabilities is that some will develop free and open fonts that anyone can use. A large type foundry may not need the publicity of a free font, but individual font designers likely do. There will always be some who are less interested in making money from a single font as they will in seeing their work used.
The foundries might argue that these free fonts won’t be quite the same quality and they may well be right, but they will be quality enough. And as competition builds over the marketing potential a free font can bring, the quality will only increase.
Like it or not type foundries are going to need to look beyond legality and into reality if they want to survive. Because someone will see those realities and take advantage of the opportunity.
Creating something from nothing is hard work and creators deserve to profit from their work. They also deserve a measure of control over how their work is used. Copyright exists to give them both. Without it one might not be so willing to put in the time to create something new.
Technology makes it easy to duplicate digital works. Technology also makes it easier to create those same works. The value of both the original and the copies is now less than what it once was. Technology giveth and technology taketh.
Napster gets replaced by Kazaa, which gets replaced by Pirate Bay, which gets replaced by…
Bit torrent thrives. Cut off one head and it grows two more. The RIAA can’t sue all its customers. Fighting it is a losing battle.
Reality supersedes legality. The inevitability is business models must change. They must get as creative as our work if we are to survive as businesses. WordPress developers will accept losses in sales as they grow their support model. Type foundries will need to do something similar. They will find their new business model or be replaced by those that find it first.
Musicians give away the music for more sold out shows. Apple creates iTunes and record labels start selling special versions of song collections. People will pay for value. Not all, but enough for businesses to continue to profit. It will take creativity. Creativity in both our products and business models, but it will happen. Those that adapt will succeed. Those that don’t will perish.
Reality is stronger than legality.