7 minutes reading time (1393 words)

The Nasty Business of Passing Off

The Nasty Business of Passing Off

The GPL gives us some wonderful freedoms, including the ability to solve our own needs when it comes to adapting and reusing software. But with such power comes responsibility. I am reminded of the phrase, "Just because you can, doesn't mean you should." And in this case, I am referring to selling software written by others as if it was your own.

My dad started a retail lumber company with his dad. He understands the value to be derived from each product sold. Every now and then he asks me to re-explain exactly how you are supposed to make a living designing software that people can just copy and give to whomever they want. He sucks me in each time. I get pumped up and a bit righteous about making the internet a nicer place and the improvements to our competitive advantage by freely sharing software tools and being able to build on each other's ideas and collaboration. And then he counter-punches with "So, how, exactly, do programmers make a living doing this?"

Joomla! is at the center of a rich ecosystem of Open Source developers, site builders, marketeers, design agencies, and more. Many, many people make their livelihood on a product that for most casual observers defies the logic of a sustainable business model. The freedom to copy and redistribute software flies straight in the face of creating a product and deriving value from every use of your product design and programming efforts. We all philosophically choose to be in the Open Source world for many reasons, most of which, my dad likes to point out, do not make the tiniest bit of business sense.

We got here for several reasons; one was just being rebellious! Rebelling against the proprietary software world that prevented us from fixing broken software or scratching whatever itch we had at the moment to improve the software we had. Another was participating in and contributing to a community that valued cleverness in programming and solving worthwhile social and global issues like democratizing the ability to publish. Sometimes we just like the sense of accomplishment; like climbing a mountain, just because it was there.

But eventually, for many, these social and hobby interests gave way to trying to "make a living doing what you love." So, without compromising our near-religious belief in the spirit of the four freedoms, we crafted business models for selling access, training, service and support, or subscribing simply to support the ongoing work of the developer.This ensures continued access to updates that keep the extension secure and continue it's growth and availability. For those who did not build a revenue model, we played on people's sense of fair play by saying, "If this extension helped you make money, consider contributing a fair share back to the author. Pay what you feel it is worth."

The Joomla ecosphere is not built upon legally enforceable intellectual property rights. We license everyone to copy and distribute the code. Our ecosphere is built upon our sense of morality and fair play. On the one hand, we want the software to be Open so we can collaboratively make it better, and that if the developer chooses not to continue development, we can fix our own bugs and continue to develop it ourselves. As site builders, we like being able to "borrow a copy" of an extension from a friend so we can "try it before you buy it" and demonstrate solutions to clients. Many developers have "community editions" of their extensions or generous return policies just to ensure that we are not buying shelfware.

It seems that balance and the sense of fairness in our ecosphere gets thrown off every so often, when someone of questionable moral values decides to exploit the GPL freedoms to profit at the expense of our community of hard working developers. It's one thing to put up software sharing websites and torrents that distribute for free software that a developer would like to be paid for. It would be nice if these sites had far less traffic so our developers would not be as motivated to come up with complex license schemes that add overhead to our sites. But it is yet another when someone starts charging for and profiting on software that someone else created. Such practices outrageously offend my sense of justice and fair play.

In the last couple months there is a new player on the web doing just this. The site is wrongly using the Joomla trademark as well as the trademarks of the several dozen extension developers that are being ripped off by the site. They are passing themselves off as an official reseller of the software when not one dollar is going back to any of the extension developers. Worse, they are exploiting community mailing lists sending targeted promotions. Their actions are both illegal and reprehensible.

The point of this article is that there is something YOU can do about this. We all love Joomla and want to see it thrive. Joomla improves based on contributions of time and code from our community. Our community can afford to do this, and it is in their best interests to continue Joomla's growth because as Joomla grows, so does their own business. We can band together and help to keep people like this out of our community.

As a site owner or site builder / integrator, if a download or discount seems too cheap to be true, it probably is. Do yourselves and your clients a favor and put your money in the hands of the actual developers and not thieves. Boycott these sites and blast their related Facebook pages and social media accounts. Check carefully when responding to a promotion that you are buying from the actual developer. And encourage your clients who can afford it (and if they can afford to pay a site designer, they can afford to contribute to the developers) to pay for the value they are receiving by using paid extensions that puts well-earned money back into the Joomla community instead of always following the path that is free. Even though you have no obligation to do so, buy a copy of the extension for every site you put it into. Keep the developer in business so you don't end up apologizing to your client about an unsupported extension next year and having to migrate to another one.

As an extension developer, realize that the GPL does not absolve these people from committing business torts (a fancy legal term for saying they can be sued) or business crimes, depending on the country. Receiving many threats of a lawsuit or being the subject of numerous reports to government officials, might have some deterrent effect on them, or more likely, their ISP. Once an ISP knows about illegal activities andchooses not to take action, they also can become liable.

Many countries have a law against "Passing Off" which is selling someone else's product as if it was your own. In some jurisdictions, the actions can constitute "Fraud in the Inducement" or "Unjust Enrichment." Open Source Matters, as the holder of the Joomla! trademark, can only do so much. It is not our product being passed off. The Trademark Team has already initiated actions to get them to stop using the Joomla! trademark on their site and in their domain name, but they can be back in a day with a new URL and logo that does not violate our license. However, a campaign by the extension developers that are being harmed, directed at the ISP, can have much greater effect.

In instances like this one, the ISP is not in the jurisdiction of any of the major governments that have extensive protections for online businesses. So, instead, a coordinated customer education campaign to your mailing lists on behalf of and signed by several major extension developers. This will help our community know it was not due to any one vendor's site being compromised and helps the community avoid accidentally patronizing sites like this and then looking to you for support.

As a community, we have a stronger voice. So, extension developers and community members, if you are invited to join together and take action about such unscrupulous and illegal activities, please take the time to join in and help.

Feel free to share your thoughts below.




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