Why the GPL does not apply to premium WordPress themes

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by Mike on 11/22/2009

in Copycat Law, First We Kill All the Lawyers, Perpetual Beta : Release, The Intarweb, Webloggia

Update

Note:

This is not legal advice. This is my opinion, nothing more. If you want legal advice, hire a lawyer.

Why aren’t WordPress themes automatically covered by the GPL?

There’s been a firestorm brewing in the relatively small world of WordPress premium theme designers, after WordPress founder Matt Mullenweg broadly asserted that themes built to run on the WordPress platform – and by implication, plugins and anything else that hooks into the WordPress system – are covered by the GPL.

This is important, because if Matt is correct, then anyone who gets a copy of a premium theme then has the right to freely distribute it or modify it virtually without restriction (expect, of course, those restrictions found in the GPL itself). Understandably, even though some voluntarily release their themes under the GPL, many premium theme designers object to having their code distributed for free.

Matt, who is an outspoken proponent of open-source software, has explained that designers can still make money off GPL code by providing support and other valuable resources to users of that code. And he’s right – that model exists, and has been shown to work for some.

Are premium theme designers “evil”?

But he also goes so far as to call non-GPL premium WordPress themes “evil” – naming Chris Pearson’s Thesis as one such example. Now, I own a Thesis developer’s license and run several sites on the theme. I was happy to pay for it and would do so again. I also know Matt and have considered him a friend for several years now. I commend him for his support of open software and for the impact he’s had on the weblog community.

So it’s tough to say this: Matt, you’re wrong. Not only are these developers not “evil,” they provide a definite benefit to the community. And perhaps more important, the WordPress GPL does not, in most cases, require them to release their own themes or plugins under the GPL.

The argument for an expansive GPL

Here’s the argument for applying the GPL to all WordPress themes:

The template is loaded via the include() function. Its contents are combined with the WordPress code in memory to be processed by PHP along with (and completely indistinguishable from) the rest of WordPress. The PHP code consists largely of calls to WordPress functions and sparse, minimal logic to control which WordPress functions are accessed and how many times they will be called. They are derivative of WordPress because every part of them is determined by the content of the WordPress functions they call. As works of authorship, they are designed only to be combined with WordPress into a larger work.

In other words, the code created by theme developers, because it works together with WordPress code (and in most cases, cannot function without it) is a “derivative work” of WordPress under copyright law and therefore falls within the scope of the GPL. (The GPL, as a copyright-based license, applies only to the original work and those works that derive from it.) At least, that’s the argument.

The counter-argument to an expansive GPL

But is it enough to say that a theme calls to WordPress functions or that it is somehow “combined with WordPress code in memory”? Does that make it a derivative, and therefore covered, work under the law and the GPL?

There are plenty of reasons to disagree with the expansive GPL view expressed above. First and foremost, it’s just not enough to say that themes running on top of, and using function calls from, a piece of software are “derivative” of that software. If that were the case, then any software application would be a derivative work of the operating system it runs on – such as Windows, Linux, or OS X – which in turn would be a derivative work of the software hard-coded into the chips running the computer. For that is the way all software works, down to the bare iron – it sits on top of, and makes function calls to, the software layer beneath it, until to get down to the silicon pathways in the chip itself. No software could run without those lower layers, and nothing is truly independent of them. But “dependent” and “derivative” are not the same thing.

Instead, copyright law takes a very pragmatic approach to determine what constitutes a derivative work.

The alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.”

In the case of Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F. 2d 965 (9th Cir. 1992), a federal appellate court considered that very issue. Galoob manufactured a “cheater” cartridge that plugged into Nintendo games, between the game cartridge and the game unit itself, and allowed the player to change the game’s parameters – for example, players could give themselves unlimited lives using Galoob’s device. Nintendo sued Galoob, claiming that the devices violated Nintendo’s copyright in the games as a derivative work of the games.

The Galoob court rejected Nintendo’s argument. In order to be considered a derivative work, the alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.” Galoob at 969. Finding that Galoob’s device did neither, the court determined that there was no derivative work.

An important part of the court’s analysis was that “technology often advances by improvement rather than replacement.” Id. The court also noted that software often depends on other software to function:

Some time ago, for example, computer companies began marketing spell-checkers that operate within existing word processors by signalling the writer when a word is misspelled. These applications, as well as countless others, could not be produced and marketed if courts were to conclude that the word processor and spell-checker combination is a derivative work based on the word processor alone.

Id. Applying that theory to the Galoob device, the court concluded:

The Game Genie is useless by itself, it can only enhance, and cannot duplicate or recaste, [sic] a Nintendo game’s output. It does not contain or produce a Nintendo game’s output in some concrete or permanent form, nor does it supplant demand for Nintendo game cartridges. Such innovations rarely will constitute infringing derivative works under the Copyright Act.

Using that rationale, the question of whether WordPress themes are “derivative” of WordPress itself becomes more clear.

  1. Does a theme, rather than simply calling a WP function, incorporate actual code from WordPress?
  2. Does it somehow supplant the demand for the WordPress software itself?

If the answer to either of those questions is “yes,” then the work is probably derivative, and the GPL probably applies. If not, then even a theme or plugin that entirely dependens on WordPress to run at all, or simply improves WordPress in some way, would not be a derivative work and the GPL would not apply. For the vast majority of themes I’ve seen, the GPL would not apply because the theme is not, in my opinion, a derivative work. (In fact, if any one thing “incorporates” another, it’s most likely WordPress incorporating the theme, by use of the PHP include() call, rather than the other way around.)

Should the GPL apply to premium WordPress themes?

Matt’s own experience with WordPress is a very convincing argument that it is possible to change the world, or even just make a living, by writing, distributing, and supporting GPL-based software. There are many premium theme designers – promoted and catalogued by WordPress – who choose to apply to GPL to their own labors. But those who choose not to? Not evil – at least not for that reason.

It’s great to talk about open source software as “free” and speak of the GPL – as Matt does – as a “Bill of Rights” – but what Matt seeks to do would reduce freedom by expanding copyright restrictions to non-derivative – and therefore legally independent – works . At its core, the GPL is simply a fancy way of controlling other people’s work through the imposition of copyright restrictions. Those who seek to extend the GPL beyond the bounds allowed by copyright law, do not promote freedom but instead take freedom away.

Update: What WordPress itself says about derivative works and copyright law

I should have done this in the main article, but here’s what the GPL that came with your copy of WordPress says about the issue:

a “work based on the Program” means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.

(Emphasis added.) In other words:

  1. Copyright law controls the definition of what constitutes a “derivative work” (and therefore, a covered work); and,
  2. The GPL expressly invokes the standard embraced by the Galoob court, namely, that some part of the original work must be contained in another work in order for that work to be considered derivative.
  • jmcnally

    Totally agree with you, Mike. And have paid for Thesis, too! Premium themes fill a need and people deserve to be compensated for their work.

  • http://copyblogger.com/ Brian Clark

    Wow, you nailed it. This is the legal argument I would make in court (more or less).

    But Matt doesn't want to go to court, because Matt is fairly sure he loses.

    That would be very bad for his position to say the least.

    So instead, he resorts to propaganda in a community that is woefully unprepared for legal analysis.

    Thank you for shining some light on reality when it comes to the GPS.

  • http://copyblogger.com/ Brian Clark

    GPS, GPL… it's all so confusing. ;)

  • http://twitter.com/GrantGriffiths Grant Griffiths

    Mike, great post and I have to say, this has been my exact point on this argument for months. I find the high pressure applied by WordPress and those involved to be a bit troubling too.

    Your legal analysis and use of the case cited in my view are point on. And if premium themes do anything for the WordPress community, it is we make the entire community better.

    I also think Brian Clark is right when he said GPS. Funny thing is I think some need a GPS to find out what GPL really means and where it applies.

    Going GPL should not be done because WordPress says it is the right thing to do. Nor because you are pressured to go GPL.

    I was on a panel last week in NYC at WordcampNY where it was me “against” 3 for GPL. It was eluded to that perhaps they might be looking for a test case on this. Again, not the best way to convince an up and coming Premium Theme company to go GPL. I am sure between those of us who are not GPL and have a Premium Theme, we could also find someone to make the counter argument to the opinion letter Matt and WordPress want to hang their hat on as how GPL applies to Premium Themes. I also agree with Brian when he says, they don't want to go to court. If they did, they would have done so already.

    Thanks again Mike for a great post and a great legal analysis.

  • http://perpetualbeta.com/release/ mikewas

    To be fair, Matt's not arguing about getting paid – he's arguing about control.

  • http://perpetualbeta.com/release/ mikewas

    To be fair, Matt's not arguing about getting paid – he's arguing about control.

  • http://perpetualbeta.com/release/ mikewas

    It's good to know where you're going. :)

  • http://perpetualbeta.com/release/ mikewas

    I haven't done the research in depth – even though, like you, I have “in-house” IP counsel – but it seems pretty clear that the consequences of this argument would crumple either our current copyright regime or our current software regime.

    As far as litigation strategy goes, I know that a putative copyright defendant who has received a C&D can file, as Plaintiff, a declaratory judgment action seeking a declaration of non-infringement, and possibly even recovery attorney's fees. (That may vary by Circuit.)

    I'm not sure Matt's sure he loses – he's a pretty smart guy, but he may not have a detailed grasp himself on the legal argument, but instead has relied on the expertise of those who have the same agenda as he does. He definitely understands how to wield a propaganda argument, though, and that's why the issue deserves serious discussion without all the hand-waving that seems to be happening now.

  • freesoftware

    You've confused Copyright law with license agreements. Yes there is a 'derivative work' in copyright. However, this is not the same as the GPL derivative work, which is a clause in a license agreement.

    In order to (legally) use WordPress you must agree to the terms of the license, the GPL. Anyone who does not do so has no right to use, distribute or modify the software. Thus, all theme developers must agree to the GPL or their work has no legal foundation.

    The GPL is quite simple to understand, it's based on freedoms. That usually means the freedoms of the users by the way. It guarantees users of software such as WordPress the permission to run, modify, add to and redistribute in pretty much any way they like.
    case.

    Yet the GPL giveth and it taketh away. Whilst it allows us all to use and modify some of the best software available with zero restrictions and zero cost it also ensures that if we decide to improve it that WE DO SO WITH THE SAME GRACE, GRATITUDE AND GENEROSITY that was bestowed upon us by the original software producers.

    Note that you don't have to redistribute your modifications, but if you do you must extend the same rights that you received in the first place. Not to do so would be immoral, greedy, illegal and mean that you're just not the kind of person to get on my Christmas card list.

    How does this apply to themes and plugins? The GPL definition of what constitutes a plugin has long been available at http://www.gnu.org/licenses/gpl-faq.html#GPLAnd… and WordPress themes have always clearly come under the second case.

    I don't begrudge anyone a living. I myself create custom themes for WordPress, and I have no problem with GPL themes for which you can purchase professional support – this is very much in the spirit of the GPL.

    Anyone who wants to be sell their custom themes can go and work with Expression Engine, Vignette StoryServer, or some other non-free CMS. It's their choice to work with a GPL product, their choice to accept the license agreement and nobody's fault but there own that people start to point the finger when they breach their contractual obligations.

  • http://xentek.net/ Eric Marden

    Whether Matt's right or wrong, he doesn't like it and he doesn't have to.

    I personally feel that it is a derivative work. Which doesn't mean you still can't charge for it. I could charge for people to download WordPress from my site if I wanted to. I probably wouldn't make much money but the GPL allows this type of action, as long as the source code is distributed with it. Same thing goes for premium themes.

    If you like your premium theme, then just use it and quit acting like Matt needs to bless the code you bought before its legitimate. The less time you spend arguing about this, the more time you can actually build something cool with WordPress.

    And if you do want to press the issue, then hire a lawyer. The arm-chair speculation is pure bush league crap.

  • http://perpetualbeta.com/release/ mikewas

    The GPL derives from copyright law. Without copyright law, there is no legal basis whatsoever for the GPL, and no enforcement mechanism. To the extent that any “definitions” in the GPL contradict definitions in the law, the law will prevail.

  • http://perpetualbeta.com/release/ mikewas

    Eric,

    Perhaps you missed my bio. I *am* a lawyer. Your personal feelings about whether themes are derivative or not – well, that's not the legal test. The legal test has been identified by the courts, and I don't know any theme out there that qualifies as a derivative – although it's theoretically possible.

    And I'm not asking anyone to “bless” anything. I simply believe that the disinformation being spread about the impact of the GPL harms both open and non-open software communities – the former, because its overreaching will backfire; the latter because it chills contributions from those who may not want to release their code into the wild. Why should I be quiet about that? (And by the way, if you're trying to urge people to “be quiet” about this – despite the impropriety of your attempt to squelch debate- I'd suggest you direct that at the person who started, and continues to fuel – the debate.)

  • http://ma.tt/ Matt

    I'm not a lawyer, but we at WordPress reached out to the very best in the world at the Software Freedom Law Center who have been involved with every major GPL case I'm familiar with, including involving such giants as Cisco.

    If you have objections to their legal analysis, I'm not the person to argue it, but I'd be happy to connect and introduce you to them.

    As to your point about reducing freedom, the GPL is about user freedom to not have their rights taken away by proprietary derivatives. Think about it from a user point of view and not the developer point of view, just like the Bill of Rights in designed to protect the people and not the “freedom” of the President to do whatever he likes.

  • http://copyblogger.com/ Brian Clark

    Matt, the Software Freedom Law Center is a free software advocacy group. That means they exist to be biased in favor of free software. See the problem?

    Maybe the three lawyers in this thread (myself included) are biased as well, in the other direction. But based on existing copyright law, our position is well grounded, and yours seeks to extend copyright law in a way that is unlikely to prevail.

    As for your “Bill of Rights” analogy, I respect how you feel about the issue. But that's your philosophy, not the law. It would be nice if you quit trying to mix the two for people who don't understand the legal issues.

  • http://perpetualbeta.com/release/ mikewas

    Matt,

    I do disagree with SFLC's legal analysis. As I pointed out, the standard they advocate would render every piece of software a derivative work of any lower-level software process it runs on top of. From a copyright perspective and from a software development perspective, that's a complete disaster, and would have to fixed (and no doubt would be) with substantive changes in our copyright law.

    As for freedoms, I as a user am free to choose to use GPL software or not. I frequently do – including WordPress, for which I am both a fan and advocate. But I should also be free to use non-GPL software that plugs in to my WordPress installation, if someone has taken the chance to develop it. Having a monoculture in the licensing regime is no more beneficial than having a monoculture in the underlying code. Frankly, as you will no doubt agree, non-GPL product has to have a substantial additional appeal in order to compete with “free” – and that additional market segment benefits users who are free to pay for it or not.

  • http://xentek.net/ Eric Marden

    Mike, if you are a lawyer you make a pretty poor argument for not applying the GPL to WordPress themes.

    I'm not trying to squelch anything. For most of us, there is no debate.

  • http://perpetualbeta.com/release/ mikewas

    What's poor about it?

    The GPL invokes copyright law expressly; copyright law defines “derivative works”; that definition excludes themes by the very nature of what themes do. It's a pretty simple argument to understand, even for non-lawyers.

    The poor argument, in my opinion, is made where someone claims that just because two programs work together, that the copyright restrictions on one program apply to the other. Legally, that's not enough of a link.

    When you tell someone to stop arguing, you're trying to squelch debate.

  • http://ma.tt/ Matt

    Brian, you know I love you guys and your product. I don't want to go to court because it seems not fun and a waste of time even if it didn't involve someone who was adding to the WP ecosystem, I would rather everyone join the family and we get on with making WordPress the best publishing platform in the world. Propaganda implies I'm saying something I don't believe in, which I'm not. WordPress, and everyone in its ecosystem, benefits from a strong Open Source base in its core, plugins, and themes.

  • http://copyblogger.com/ Brian Clark

    Matt, and you know from our conversations the immense respect I have for you personally and for what you've done with WordPress. It literally pains me that we find ourselves at odds over anything, much less this.

    As far as my use of the word propaganda, I'm using it in this sense:

    “Propaganda is a form of communication aimed at influencing the attitude of a community toward some cause or position.”

    Why only concern is that your position is a blend of philosophy (how things should be) and law (how things are). I have nothing but respect for your ideas about the way things should be, but the GPL issue has been presented as if it's settled in line with your philosophy, when the reality is, copyright law does not support the way you wish the GPL worked.

    Peace.

  • http://ma.tt/ Matt

    Have you talked to anyone at SFLC directly about this? They could probably explain it in more lawyer-ly terms and assuage your concerns. I don't have your legal background so I can't claim to be able to articulate as well as they can. I do have to believe, though, that they've thought about these exact same issues and claims before in other communities they've worked with, including CMSes that have very similar structure to WP.

  • http://perpetualbeta.com/release/ mikewas

    Matt,

    I haven't had a direct conversation with anyone, because this whole inquiry was mostly a curiosity I've undertaken in my minimal free time, when I haven't had to worry about work, or family, or other pressing concerns.

    I have, however, take the chance to review the SFLC's public communications, which tell me two things:

    1. The SFLC is very much an advocacy group seeking to extend the reach of the GPL. There's nothing wrong with that, but I wouldn't consider them a trustworthy impartial source. I know puh-lenty of copyright lawyers (and I even make international headlines in the field myself from time to time) and there are a number of well-respected experts in the field who fall on both sides. When I first looked into the matter myself, I was of neutral opinion, but quickly realized that the law, in my opinion, directs the opposite result from what you advocate vis-a-vis themes and plugins.

    2. This specific issue appears to have never been fully litigated. (*) SFLC's litigation on the GPL has been largely limited to the “tivoization” issue – namely, inclusion of GPL software in devices that prevent compliance with the GPL in one way or another. However, the legal test for what makes a derivative work in general copyright terms is many decades old, well-settled, and fairly clear.

    * The only case I could find, Progress Software Corp. v. MySQL AB, 195 F. Supp. 2d 328 – US: Dist. Court, D. Massachusetts 2002, reached only the earliest stages, and the court expressly denied relief based on the GPL claims.

  • Christoph

    The Themes should be freely available just as research results based on public funding should not result in patents. I don't argue law here, but ethics. Make your money with support and design, but remember whose work you are essentially living off. Not doing that – that's what one could call evil.

  • Christoph

    The Themes should be freely available just as research results based on public funding should not result in patents. I don't argue law here, but ethics. Make your money with support and design, but remember whose work you are essentially living off. Not doing that – that's what one could call evil.

  • http://perpetualbeta.com/release/ mikewas

    Christoph, if you develop WP themes, there's nothing stopping you from living by your ethical code and releasing your work under the GPL. Do you think it's ethical for you to impose your moral code on others who invest the hours, skill, and expertise to develop themes for WordPress?

    I think the disincentive that results from mandatory imposition of the GPL where the law does not require or allow it would hurt the WordPress community by reducing the number of people who might be willing to contribute. Under the GPL, the community gets the benefit of using the code as well as the right to further develop it; under a closed license, the community only gets to use the code within the license parameters; but if the code is never created or never released, then no one benefits.

  • Christoph

    So WordPress won't sue Thesis. I wonder if someone could force the issue by buying Thesis and then distributing the part which belongs under the GPL freely as is his right under the GPL. Then Thesis can sue him and we will be wiser. Or not sue him, and Thesis will be free as it's supposed to be.

  • http://perpetualbeta.com/release/ mikewas

    Christoph, interesting approach. I'm not sure that would work, though – there's a big difference between a plaintiff (such as WordPress) saying that a theme developer violated the copyright license, and an accused infringer of a theme developer's copyright asserting that the developer was infringing some third party's copyright license.

    The problem you'd have is that there would be no dispute that the theme developer has a copyright interest in their work, *whether or not* that work is derivative, and that exposes anyone taking that risk to pretty serious penalties.

  • John D

    Very interesting conversation.
    Suppose I have a standalone software product, which I could 'link' into WP (essentially provide a menu to access it within the WP environment), does that really render the whole construct -stdalone software & plugin extension for WP- a derivative work product?
    Hard to believe.

  • John D

    Very interesting conversation.
    Suppose I have a standalone software product, which I could 'link' into WP (essentially provide a menu to access it within the WP environment), does that really render the whole construct -stdalone software & plugin extension for WP- a derivative work product?
    Hard to believe.

  • http://www.MattFlies.com Matt Langford

    I think this is a terrific question! There are multiple software applications that link into WP. Should MarsEdit be subject to the same “Bill of Rights” as they're trying to push on Thesis?

    In the same vein, would Twitterific or Tweetie be considered derivative works of Twitter?

  • stephenhamilton

    I'm not an expert, but I think your question re: Twitter isn't quite relevant as I'm pretty sure it has no connection with the GPL…it is 'proprietary' code that provides an open API.

  • http://www.MattFlies.com Matt Langford

    Stephen, I realize that — I was just trying to give a hypothetical context to my statement. In other words, if they created a similar GPL of sorts, would it be within their rights to make the same claim?

  • http://twitter.com/MikeWas Mike Wasylik

    Stephen, the derivative work analysis is the same whether it's a GPL work or not. It's a derivative work, then the copyright holder of the underlying work has the right to restrict distribution of derivatives (as the GPL so restricts by imposing conditions); if it's not a derivative work, then the copyright holder may not impose restrictions.

    (Also, see my fair use post: http://bit.ly/6JKq9j )

  • stephenhamilton

    Fair enough, I see your point.

    Actually, I'm curious about the Akismet Spam plugin, which I believe is developed by Automattic. The plugin is free under certain conditions, but you have to pay for it under other conditions. I'm wondering how this compares (ie is it any different to) in a strictly legal sense to paying for a premium wordpress theme. I don't know, but I'd like to know.

  • stephenhamilton

    So the twitter/twitter client question is a fair one. (Sorry Matt L!).

  • leobabauta

    I think your analogy of applications running on operating systems is flawed. In those cases, the application (say, the Google Chrome browser) is a very separate app from the OS. Yes, it needs the OS to run, but the code for the app itself is complete without the OS and when you use the browser you're using all the functions written by the coders of the browser. A better analogy would be that Chrome incorporates Webkit. It basically doesn't do anything without Webkit.

    A WordPress theme doesn't have any functions, for the most part, without incorporating the code of WordPress software. It isn't separate software that runs on top of an OS … when it runs, it runs as one with WordPress. When someone visits a site with a premium WP theme, and navigates through the site, they're only doing so by using functions called by WP, not by the premium theme.

    It's completely different, because the two are so tightly incorporate as they run. A spellchecker sits on top of a word processing app but isn't calling the functions of the wordprocessor just to run its basic features.

    I'd like to make one other comment: if Matt Cutts is right, he doesn't need to take the issue to court. He hasn't been damaged by premium themes asserting copyright claims. What is more likely to result is that other WP theme developers could use the code of a premium theme (such as Thesis), and then redistribute for free or even distribute under GPL and charge for their derivative theme. If this happens, because the developer of this derivative theme asserts that the GPL applies to Thesis (for example), then the developers of Thesis will be the ones who need to take this to court to recover damages and assert copyright. That will be the real test. Matt doesn't ever have to take this to court.

    Lastly … my suggestion to developers of premium themes is not to look at this issue as a threat to their software and income. You can make money if you release software under the GPL … Matt is a great example of this. I've released copyright of almost all my work (Zen Habits, my ebooks, other blogs) and I still make more than enough money. People buy my ebooks even if they're uncopyrighted, and I haven't been hurt one bit. People will still buy Thesis even if it's not protected under copyright. You might get a few people who download it for free from other sources, but I submit that it won't affect your bottom line a bit. Embrace the freedom of removing restrictions, and you'll see your work spread more than ever.

  • http://zenhabits.net/ Leo Babauta

    Such a disincentive caused by the GPL has never been proven. In fact, Matt has shown otherwise: more themes have been developed for WordPress than any other blogging platform, despite the GPL … in fact, arguably because of the GPL.

  • Peter

    Your analogy to the Nintendo case is faulty. Lewis Galoob Toys, Inc. was distributing an independent product. It was not distributing any Nintendo IP. Any user of WordPress is distributing WordPress IP, and cannot do so without permission of the copyright holder.

    In this case, the copyright holder gave permission, but with specific limitations. Copyright holders often do this (e.g. non-commercial use only, student-use only, fewer than some number of distributions, excluding specific users by name or by country, etc.). In this case, the limitation states that I can distributed it, so long as all code that links to it is also licensed under the GPL.

    The GPL cannot stop you from distributing a proprietary WordPress theme. If you do, however, you lose your rights under the GPL to distribute the rest of WordPress with it.

    There is a more complex question about who would be liable for such infringement — just the users of the themes (who are the ones actually violating the GPL by distributing WordPress code, now without permission), or the sellers of the premium themes who are inducing them to do so.

    What is not in question is that there is a violation in place. You can distribute proprietary WordPress themes, but once you do, you lose your rights under the GPL to distribute WordPress.

    (I am not a lawyer, but I have taken several classes in technology law, including one at Harvard Law School taught by Larry Lessig)

  • stephenhamilton

    Leo, I think you may have meant Matt Mullenweg, instead of Matt Cutts.

  • http://zenhabits.net/ Leo Babauta

    Stephen, you're right … I've edited to reflect the correct Matt. :)

  • http://twitter.com/MikeWas Mike Wasylik

    Leo,

    All software depends on the functions of the layer immediately below, and so on, all the way down to the hardware – without which, none of it runs. If that made an app a derivative of the layer below it, no one could write apps. You're trying to make a distinction where none exists.

    Your suggestion that WordPress themes incorporate WP code – that's whole whole point: they don't. Look through the source code of any theme: you won't find any WordPress code in them, except possibly the names of the API functions called.

    As far as who should sue who… if a developer wanted to assert a copyright claim against a third party, it may not be legally relevant whether the GPL applies, and therefore never tested. And in any event, see my fair use post for why it's a loser defense anyway.

    As to your suggestion to theme developers, the same advice could be given to those who would impose restrictions on them. There's a pretty good argument to be made that the popularity of themes like Thesis has promoted the spread of WordPress and increased the bottom line of Automattic in turn. Anyone who's paid for a professional WordPress theme, by definition, MUST be using WordPress. Embrace the popularity of these developers' work, and WordPress spreads more than ever.

  • stephenhamilton

    Leo – I don't think your statement above about the degree of reliance the premium themes have on wordpress is enough to sway a legal argument – it would seem to me the precedent set in the nintendo case is pretty clear (until someone presents something else more compelling).

    That aside, I do agree that I don't see why there is a need for Thesis to be copyrighted. As a customer, I'd pay to access their awesome support forums regardless. Moreover, as some are starting to release skins to run with Thesis, I'd think there would be far greater quanity and quality of this work if it was open, which as you point out is what happens with WordPress.

  • http://zenhabits.net/ Leo Babauta

    There absolutely is a distinction here. The WP themes incorporate the WP code when they run, not when you read the code. When the WP theme is actually run, it is run as one with the WP code, not separately. They run using PHP, and PHP doesn't interpret the two codes as separate. They are run as one program by PHP. This is completely unlike software (such as a browser) running on top of an OS … in that case, the two software are run separately, in separate threads. That's not the case with WP themes and the WP code.

    If a developer files a claim against a third party, it needs to prove that it has copyright, which wouldn't be the case if Matt is correct.

    I agree that premium themes spread the popularity of WordPress … but that's not the issue here. The issue is whether embracing the GPL hurts them or their bottom line. In my experience, and in the experience of Matt's company, it hasn't, and I suggest they embrace it.

  • http://zenhabits.net/ Leo Babauta

    Stephen … in the Nintendo case, the Game Genie had functions that were run w/o the Nintendo code, but just sat on top of the Nintendo code. It's completely different from how WP and WP themes are run in PHP. It's not clear at all that this could be used as precedent.

  • http://twitter.com/MikeWas Mike Wasylik

    What does this mean?

    “Any user of WordPress is distributing WordPress IP.”

    I'm using WordPress. What WordPress IP do you think I am “distributing”?

    As far as the “independent product” argument… Galoob was distributing device that PLUGGED IN TO the Nintendo game device and modified the output. This is exactly what WordPress themes do: Plug into WP and modify the output.

    In any event, see my fair use post for why it doesn't matter: http://bit.ly/6JKq9j

  • stephenhamilton

    Leo, I'm not a lawyer by a long shot, nor am I an uber-tech.

    But it seems to me that the device in the Nintendo case would have had to at least interact with the nintendo software.

    Likewise, the premium themes interact with wordpress.

    How do you contend this degree of interaction is any different? And what technical evidence would you present to support this argument? Mike says there is basically no WP code used in the premium themes, and if any is used it would be defensible under fair use.

    Please understand, I'm not trying to bait you – I am genuinely interested. While my sense of personal ethics may suggest otherwise, I am presently only interested in the legal argument.

  • http://zenhabits.net/ Leo Babauta

    Stephen … there's a difference between interacting, which lots of separate software do with each other, and running together as one code at runtime. Game Genie runs as separate software but interacts with the Nintendo software. The code for WP themes and WP are put together by PHP when they run, and run together. And the functions of a WP theme, when used by the end user, are done by WP, not by the WP theme.

  • stephenhamilton

    Thanks for the reply Leo. Very interesting.

  • http://twitter.com/MikeWas Mike Wasylik

    Leo, we disagree about the incorporation issue. All the talk about threads and such just obfuscates the issue that ALL software depends on lower levels of code that runs together at the same time in the processor, but that doesn't mean they are derivatives of one another.

    “… it needs to prove that it has copyright, which wouldn't be the case if Matt is correct.” No. If Matt is correct, then it is a derivative work, and the author of the derivative has a copyright in that derivative whether or not the derivative is an infringement of the underlying work. Your statement does not correctly reflect copyright law.

    “The issue is whether embracing the GPL hurts them or their bottom line.” No, the issue is whether the GPL prevents them from asserting their copyright in their code. Because, even if you assert that premium themes incorporate WP into them, you have to admit that all WP themes contain at least some original code. And under copyright law, developers have a clear claim to that original portion.

  • http://zenhabits.net/ Leo Babauta

    1. Mike, you keep using the word “depends” but WP theme software doesn't just depend on WP software, and isn't just run at the same time in the same processor, it is run together with it, as one program. I don't think you clearly understand how these two pieces of software interact and are run together.

    2. The issue I brought up in my first comment is whether the GPL hurts them or their bottom line. I was suggesting that they stop trying to restrict others (their users) with copyright, and instead *voluntarily* give them the freedoms of the GPL, and my suggestion is that it won't hurt their bottom line. That's the issue I brought up, separate from what you're asserting in your post.

  • http://twitter.com/MikeWas Mike Wasylik

    Leo,

    There are many programmers who refuse to even look at GPL code, lest they ever be accused of incorporating it into works they later create for profit. There are employers who prohibit their programmer employees from looking at GPL code for the same reason.

    That means the innovations contained in GPL code are effectively ghettoized, because there are entire classes of programmers out there who aren't able to even learn from them by example. And vice versa, the contributions of those programmers are locked out because all their other output would potentially be tainted by their participation in a GPL project.

    This intellectual penalty does not apply to other forms of open-source code that refuse to apply the contagious model urged by the FSF and its advocates. You don't think that's a disincentive? I do.

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