It's been a year or so since the Core Team asserted that "some" CMTPs were in potential violation of the GPL. So what's been learned from this experience?
The flow on effects have been seen. Now Joomla attracts the absolute cheap end of the market, primarily within Asia (thanks to Quantcast statistics). Commercial works are being pirated in an increasing ongoing basis through torrents and key pirate sites (Brendan Dawson's blog mentioned them in a post he has since pulled). Certain advocates (who shall remain nameless) continue to spread propaganda that all creative works when working with Joomla must be under a GPL-compatible licence. Unfortunately, these advocates are closely linked with the Core Team..
The safe legal harbour for Australian businesses working and designing for Joomla with their clientele is:
not to engage the GPL as part of the contract between the business and the client.
By not invoking the GPL as part of the contract, the contract with the client can be stipulated to involve commercially licenced creative works (as per the Copyright Act).
As a creative work, by nature of it being creative, can have stipulations on how it is licenced and distributed (as per an artwork, photo or any other form of media), your business can then provide certain protections under the Trade Practices Act that are not afforded when delivering creative works under a GPL based business model.
You can provide a warranty and make sure the end product for your client is fit and merchantable, something that is rejected under the GPL (especially GPL v3).
Corporate due diligence would recognise that if a business seeks to provide a warranty for the website (regardless of what basis the website is created with - GPL, open sourced or any other licence), that warranty will invalidate the GPL as a contract (especially if the contract stipulates the use of GPL as part of contract of sale).
This then opens the Pandora's Box. By creating commercially non-GPL based works that include warranties and other consumer protections for your clientele, it would be tantamount to business suicide if any legal firm sought to sue a commercial design/dev studio who delivered creative works for Joomla (or any other open sourced CMS for that matter). This is because the contract is between the business and the client, and that contract can contain whatever conditions are negotiated as a fair contract of sale between them. The legal firm seeking suit would be fighting against the Trade Practices Act as the design/dev studio would be seeking to keep in step with Australia fair trade practices. The implications for this are significant: the business / person or project seeking suit does not wish to engage in consumer trade protection and good business practices
Considering how many people are closely linked to the Core Team across Australia, and yet have remained silent or not shifted entirely to a GPL-compatible business model, this would suggest an abject failure to enforce or allow businesses to "voluntarily comply".
The next step is to make sure Joomla and the various businesses surrounding it attracts the right style of paying clientele and not the chopshop / bottom of the rung web clientele.
