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

    1. Leo, I do get your point. But I don't think the legal standard of whether a theme “physically incorporates” WordPress code turns on issues of whether the code is held in memory at the same time, whether it's executed at the same time, or whether the process is one thread or many. I know that the SFLC, as an advocacy group, would definitely like for that to be the case, but it isn't. And frankly, I doubt that your earnestly-held opinion about whether developer themes should be released under the GPL turns on such questions, either: you're clearly an open source advocate yourself. (NTTAWWT)

    No, I think the run-time combination issue obfuscates the real copyright issue here: when a theme developer sits down to write their code, are they exercising originality and creativity, or are they ripping something off? And the only way to determine that is to look at the code of the theme, compare it to the code of WordPress, and see if the theme has ripped chunks out of the WordPress codebase and duplicated them whole in itself.

    No one I know of claims that to be the case. That's why the SFLC has grafted on the run-time issue, which is the only possible hook they have to assert derivative status, because without run-time, there's no incorporation, period.

    And I can also tell you this, as a trial lawyer: juries decide copyright infringement based on duplication that they can see or hear for themselves. In this type of case, they would get to see the code from one set of files, the code from the other set of files, and see that they're different. A plaintiff trying to prove infringement would have to ask them to imagine them running together as one program – if the judge even allowed the “run-time” argument, which is not guaranteed. All other litigation factors being equal, defendants win that case probably 8 or 9 times out of 10.

    2. Many premium developers have done exactly as you would have them do, and continued to profit. Others have chosen not to, and continued to profit. Each developer chooses the model that seems to work best for them, and that in turn, gives the USERS of WordPress more choice, because having multiple options for one's business model – as opposed to having a particular business model imposed by a dubious legal argument – means there are more developers producing more product. As a user of those products, I appreciate the improved choices that gives me – and I have chosen to use both at times, depending on the project. (I run some sites that use Thesis; some others, I use free themes from elsewhere.)

    I think open-source is great for those who choose to embrace it, but I think the GPL has the potential to interfere with the very purpose of open source it purports to promote. More on that later, if I have time.

  • http://zenhabits.net/ Leo Babauta

    The legal standards set by the court in the case you cited definitely does make the distinction I'm making. According to the quote you provided, the court says that the Game Genie “can only enhance, and cannot duplicate or recaste, [sic] a Nintendo game’s output”. But WP theme code does duplicate or recast the output of the WP application — in fact, that's its very purpose.

    Moreover, you stated that one of the criteria of whether a WP theme is derivative of WP is “Does a theme, rather than simply calling a WP function, incorporate actual code from WordPress?”

    And the answer is yes. When the WP theme's code is run, it must incorporate actual code from WP in order to run, and doesn't just call on its functions.

    And yet in your comment, you've now created a new criteria that you didn't mention in the post nor have I ever heard of in copyright law: “when a theme developer sits down to write their code, are they exercising originality and creativity, or are they ripping something off?” If there's precedence of this in software copyright cases, I'd be interested.

    Derivative software isn't ripping something off — they're code that's based on the code of others, which WP themes clearly are.

  • SilentMobius

    I would have thought that this was obvious:
    PHP that is pulled into the app body->GPL
    CSS that isn't->Non GPL
    Images-> Non GPL

    The problem is thinking about the “theme” as a whole

  • Colby Russell

    Readers should be aware that I did attempt to find an answer to that question before. Mike referred to his bio, but the information on this blog’s “About” page is woefully scant, giving almost no information about Mike himself. I now know mikewas is Mike Wasylik (http://wasyliklaw.com/), a real estate attorney at Ricardo, Wasylik, & Kaniuk, which specializes in foreclosures and bankruptcy.

  • Colby Russell

    What is your area of expertise? I have a sneaking suspicion your work doesn't focus on intellectual property (as your profession).

    (I'm almost positive I posted this comment last night. Maybe it got deleted, or maybe I just didn't hit the post button.)

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

    No, I didn't delete it. You apparently failed to post successfully.

    As to who I am, my name is at the bottom of every page and it's really not all that hard to Google me or find the about page at the top of the domain.

    And yes, I actually do practice in the area of intellectual property, although it's not currently a large part of my practice.

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

    Leo,

    Again, we disagree. Your emphasis on run-time is where the analysis breaks down, because theme code, as created and as distributed, is all done long before any compilation occurs. Therefore, at the time of its distribution – which is all the GPL could possibly control – there is no incorporation. The argument that the end user, not the author of the code, later runs it together with the WordPress core does not change the nature of the work at the time it is created or distributed.

    In other words, the test for whether something is derivative is whether, at the time it is “fixed in a tangible medium,” (i.e., the code file is saved to disk) whether it contains, at that time, any code from a protected work. I've never seen any argument that it does. Advocates of an expansive GPL cling to the run-time analysis although there is no real authority for it in the law.

    As for the purpose of a WordPress theme, it's to enhance the output of the core WordPress code -just like the device in the Galoob case. Themes cannot run by themselves, and they do not, without WordPress running, output any information from the WordPress database. You disregard the next two sentences of the opinion, which are much more clear and direct:

    “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.”

    The “new criteria” isn't a new criterion at all. It's my colloquial expression of the purpose and spirit of copyright law. Technically, a derivative work is, unless made with permission, ripping someone off. If the GPL applies, and creators of derivative works don't abide by it, then they are indeed ripping something off.

    But in the case of WordPress themes, which as written an as distributed, contain no code from the WordPress core* they are wholly the work of their creators from a copyright perspective, and not derivative.

    *I think we would agree that some themes may contain such code, and that may bring those themes within the scope of a derivative work. I am not aware of any nor do I express an opinion as to how much code would be required to cross the threshold.

  • http://zenhabits.net/ Leo Babauta

    I'm more and more convinced that you're not very well versed in copyright law, nor in software, because there are serious flaws in each of your comments.

    1. Your emphasis on when the code is distributed, vs. how it is incorporated with WP code at run time, is obviously not consistent with the legal precedent you cited (Game Genie). Again, the court wrote:

    “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.”

    This is obviously talking about what the software does at run-time, not at all about a) the code as distributed or b) the intention of the author of the code (whether he wants to rip off Nintendo or not).

    2. As for the court's next sentence “It does not contain or produce a Nintendo game’s output in some concrete or permanent form” … this is exactly what I'm referring to. The court is talking about the game's *output* … the WP theme *does* contain the WP code's output. That's exactly what it does … the WP theme takes the functions of WP and outputs it in special formatting, completely unlike the Game Genie (which just changed some of the back-end options).

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

    Leo,

    On re-reading the case, I see why it would cause some confusion. In Galoob, the output itself, not the code running the machine, was the allegedly infringed work. So there, the output wasn't created until the device was run. With WordPress, it's not the output, but the code that's the question.

    You're conflating the programmer's notion of what a “program” is with the copyright lawyer's notion of what a “work” is. That's not unusual, and serves to illustrate why copyright law is ill-suited for an essentially functional concept like software.

    Nonetheless, it's pretty clear under copyright law – at least, to everyone who's not pushing an agenda – that the work is defined at the moment it is “fixed in a tangible medium,” not when it is run. I.e. , the work is the file saved by the programmer, which is then later distributed.

    And in the future, let's avoid accusing each other of ignorance, shall we? I haven't treated you with that kind of disrespect and I'd appreciate the same courtesy.

  • http://www.chipbennett.net/ Chip Bennett

    It is pretty hilarious to see a non-lawyer telling a lawyer (and one who has specifically practiced in the IP area) that his legal analysis is faulty.

    You response (and the other similar responses in this comment thread) perfectly illustrate the hubris of the free-software fanatics (like Matt Mullenweg and Richard Stallmann) whose philosophical passion far exceed impartial legal analysis and precedent case law.

    Such blind passion – and the resulting stances that are taken – are not healthy for WordPress (or the Free Software Movement) long-term.

  • Peter

    The key difference is that when I bought a Nintendo and a cartridge, there was no license agreement. I owned the goods. It's just like buying a book. I can buy a book. I can sell scissors, which can be used to modify books. You're in a flat copyright regime, with no additional license/contractual obligations, beyond what is permitted and restricted by copyright law.

    In the case of software, you generally license it. Licenses can and do impose arbitrary restrictions, above and beyond the limitations given by copyright law, and with a few exceptions, those restrictions are (unfortunately) enforceable. If you buy a MS SQL Server license, the license says you cannot even post benchmarks of MS SQL Server. There's nothing in copyright law that allows you to restrict posting benchmarks. It's just that you cannot get a copy of MS SQL Server without agreeing to that license. By buying and installing MS SQL Server, you've just contracted that right away.

    In the case of the GPL, it imposes very specific restrictions. You have two choices: (1) You can either accept those restrictions, in which case, it gives you the right to use WordPress. (2) You can not accept the license. In that case, it doesn't bind you, but on the other hand, you don't have the right to e.g. copy WordPress onto your server.

    Once you've installed WordPress, you do continue to distribute bits and pieces of it in the form of AJAX/JavaScript. This is especially common on the administrative pages, but it is sometimes on the non-administrative pages as well. This is specific to how your WordPress is configured (your configuration, actually, does seem to do this much, beyond administration, so you are probably correct that you are not redistributing WordPress IP).

    Now, I don't necessarily disagree with your conclusion — the GPL has a pretty liberal definition of derivative works, and it is not at all clear to me that themes would fall under it. Your legal argument, however, appears to be completely bogus. The definition of derivative works that would be applicable here is very clearly the one spelled out in the GPL — not the one in copyright law.

    I also do not entirely agree with your fair use argument, but that's the topic of another post.

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

    “The definition of derivative works that would be applicable here is very clearly the one spelled out in the GPL — not the one in copyright law. “

    Peter,

    Read the GPL in your WordPress install. It says:

    “a 'work based on the Program' means either the Program or any derivative work under copyright law.”

    The license itself expressly imports the definition from copyright law. Also, you confuse the GPL FAQ with the GPL itself. The FAQ has no legal effect – only the license does, and the license expressly invokes copyright law.

  • Peter

    You are correct — I missed that part — I was looking at section 2 (not the FAQ) when I wrote the above. GPL section 2 states:

    “b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. “

    Notice the OR. “Contains OR is dervied from.” The GPL binds things other than just derivative works as defined in section 0. It further explains what it means by this:

    “These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.

    Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program.

    In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License. “

    I see nothing in there which would caused themes to not fall under the GPL, but I can't state that with any level of certainty — I am beyond my level of legal knowledge, and I've seen lawyers disagree (e.g. SFLC vs you). On the other hand, it is a slightly different definition from copyright law.

    The FAQ (which I have not read) does have some legal standing, according to several copyright lawyers I spoke to. If there is ambiguity in how to interpret a contract or license, courts will tend to go with the author's intent. The FAQ lays that out. It can't overrule the terms of the GPL, but where the GPL is unclear, American courts will tend to go with it.

  • http://perpetualbeta.com Mike

    Peter,

    It is correct that IF a license applies, then the FAQ may be used as evidence of intent to resolve any ambiguities in the license. However, the express language of the license itself will trump the FAQ, and the license expressly invokes copyright law as the test of whether a work “is derived from” from the protected work. (If it “contains” the work, then under copyright law, it is a derivative – no contest.)

    Because the express terms of the license invoke copyright law, it is neither ambiguous, nor is it applicable to anything that does not – such as themes and plugins – incorporate portions of the original work – the “run time” red herring notwithstanding.

    Thanks for the reasoned discussion though… kind of a nice change around here lately.

  • http://twitter.com/DanMeissner Dan Meissner

    As neither a theme designer or a WordPress coder/loyalist, I have a hard time disagreeing with your conclusions Mike.

    Nice post.

  • http://twitter.com/shanearthur shanearthur

    Here's the way I see it:

    WP is open source, meaning anybody can look at the code and create a theme right? But it doesn't force anybody to develop a theme.

    Likewise, Chris Pearson comes along, accepts the invitation, and creates a theme which he doesn't force anybody to buy, thus not harming any GPL interpretation. It's ultimately the buyers of Thesis that don't agree with Matt and, in his mind, violate his GPL.

    The free market is saying, “We're willing to pay for something that premium theme developers following the GPL to a T don't provide. Our unfulfilled need is greater than your legalese and your network of approved vendors.”

    So, the ultimate question then Matt is, “Is the FREE market evil?”

  • mvandemar

    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.

    I know this is a serious late comment, but how is it that you claim to be part of the FSF yet not know the language of GPL v2, which is what WordPress is released under?

    “The “Program”, below, refers to any such program or work, and 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.”

    The “derivative work” discussed in the GPL is in fact the one referenced in copyright law.

    And if you are not with the FSF, why the username?

  • http://andybold.me.uk Andy Bold

    It's just as hilarious seeing a lawyer take on a software guy. This is the heart of the problem here. Much of law is about intent, but software is software. I think they're both right, and that is why this is such a passionate issue.

  • http://silverpenpub.net Matthew Stublefield

    I'd agree that WordPress themes are not derivative by default, but it depends entirely on how the theme was made.

    Let's say the theme used Kubrick as a base and framework. A lot of theme developers used Kubrick this way with the assumption that it provided some future-proofing; WordPress wouldn't update in a way to break their default theme. However, Kubrick is GPLed, which means themes based on it are derivative of that GPLed theme and must also come under the GPL. In this manner, any premium theme developed from Kubrick should be under the GPL because they are derivative.

    They derive from Kubrick, not WordPress, though. If you built a theme entirely from scratch, but hook into WordPress, you're not derivative of WordPress. The operating system analogy above is a good one, but perhaps not entirely applicable in this situation. A better analogy would be Twitter and Twitter clients. TweetDeck is not derivative of Twitter just because it uses Twitter's APIs. Those APIs were created to be called, just like WordPress's hooks, and subsequently it's not derivative to use them.

    For more legal analysis and detail, visit http://www.linuxjournal.com/article/6366

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

    Matthew, if the theme incorporated non-trivial amounts of PHP code from Kubrick, then it would very likely be a derivative work of Kurbick, and inherit Kubrick's GPL.

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

    “PHP that is pulled into the app body->GPL”

    You've got it exactly backwards. In order to be a derivate work, the theme would have to incorporate the app body, not the other way around. And that's not the way WordPress works or themes work.

  • http://silverpenpub.net Matthew Stublefield

    You are correct–that's the point I was making. By modifying Kubrick to create a new theme, the new theme would be derivative and therefore need to claim the GPL.

    If the theme is completely original, just hooking into WP doesn't make it derivative.

  • http://www.ekosdeux.com Carlos

    I commend you for your patience mike, and thanks for all the points you make. I like what open software provides for us, as a society. I feel that open source will always be inferior, in most cases, and enforcing a GPL will definitely drive away some great minds. I like wordpress, and feel that it is a great piece of software, but view themes as stand alone. The way some contributors have stated this basically leads to… “Well you coded your program with open language, so your product should be open”. This in my mind will ultimately limit the speed, and effectiveness with which wordpress will improve. After today's debacle, I feel there is more to it than GPL. Matt is pushing for his agenda, and Chris will not budge. I personally feel it would be a great shame if this went to court, because like you I think the code speaks for itself, and run time will not matter when it comes to court. Thanks.

  • http://bmannconsulting.com boris

    The way that PHP is executed means that everything runs together in the same space, with no separation (this is a simplification, but essentially correct). So, not the same as the red herring about software apps and operating systems (this comes up all the time).

    The Drupal community generally agrees with WordPress in that all themes and modules are derivatives and thus must be licensed as GPL *if* you distribute.

    Luckily, themes have CSS, images, and other pieces which can by copyrighted/trademarked and licensed in whatever way you see fit. The legal page on the Drupal-focused TopNotchThemes site makes this nice and clear (http://topnotchthemes.com/legal):
    ====
    * Drupal is open source software covered by the GPL. Portions of our themes (typically the .php files) that interact with Drupal are thus covered by the GPL and may be freely distributed
    * The “look and feel” of our themes which includes files not dependent on Drupal (typically graphics and CSS) are not subject to the GPL and are the intellectual property of TopNotchThemes and licensed to you upon purchase via our website.
    * You may not redistribute these files or use them for more than one production website
    * We have no liability for and make no warranty for our themes
    ====
    Great, plain, simple language. Go ahead and sell custom / premium / whatever themes day in and day out. The code bits of the PHP are a derivative work, and must be licensed under the GPL.

    More on my blog at http://bmannconsulting.com

  • fredwu

    My personal opinion on this matter: http://fuckgpl.com/ ;)

  • http://twitter.com/drewblas drewblas

    I very much agree with your post, however Thesis actually COPIES WordPress code and uses it as its own, which does make it a derivative work: I did an analysis of Thesis and found several areas where Thesis it WordPress GPL licensed code: http://wp.me/pg2iw-1R

  • Catwoman69y2k

    Thanks for the clarification and further insight into GPL and its role with those who wish to sell their themes. I do agree that most people who still give away themes can make some side cash on support and other services. Time is $$$

    However, premium themes have always been a grey area. Not one person seems to come to a consensus about if Premium themes are even allowed, let alone if releasing it sans GPL makes them “evil” or not.

  • http://www.zyphon.com willbradley

    The problem with Thesis is that it does contain code that is pretty obviously copy-paste-modified from WP GPL code: http://drewblas.com/2010/07/15/an-analysis-of-g

  • Ken

    “WP is open source [GPL], meaning anybody [is granted permission, if abiding the terms,] can look at the code and create a theme right? But it doesn't force anybody to develop a theme, [and only restricts the restrictions that can be made with regards to distribution when its distributed.]

    “Likewise, Chris Pearson comes along, accepts the invitation [and the license], and creates a theme which he doesn't force anybody to buy, thus not [yet] harming any GPL interpretation [until he distributes it with restrictions on redistribution]. It's ultimately the buyers of Thesis that don't [know anything about this at all, and yet] agree with Matt and, in his mind, [and everyone who knows anything about this] violate his GPL [and by extension, the authors' legal copyright].”

    I fixed the above for you.

    Your interpretation of the “FREE” market is evil, yes.

    I suppose that your opinion on kiddie porn is similar as it follows from your logic. So child molesters have an “unfulfilled need [that] is greater than your legalese” and so laws protecting children are against the FREE market? Yes that is evil.

    The only restriction on GPL code is that you can't restrict distribution rights for clients you distributed the code to. It promotes *less* restriction by adding one rule.

  • Dandidub

    You are totally right. It's like saying: Your app runs on my OS and because of that it's falling under my license.

  • TookSomeIPLaw

    Who cares how it is executed? The law doesn't. The law cares about how it was written. include() doesn't matter, address space doesn't matter, what matters is did Chris take and redistribute any WordPress code? If no, there's no copyright violation to assert.

  • ReaderX

    There is no such thing as a free market.

    And if there were, you're non-GPL license would mean nothing at all.

  • ReaderX

    You waste time with an obvious fallacy. There's no way that WordPress is derivative of Thesis.

  • http://www.archaxis.com Archaxis

    I used to be a Mambo / Joomla designer and I remember when they first went to war with Mambo which led to the creation of Joomla. The Joomla team decided to move their extensions library to pure GPL extensions which caused an uproar and core developer defections. It was a hard fought battle but it applies to the current battle see it here http://community.joomla.org/blogs/leadership/63

    It's pretty clear that a WordPress theme is part of WordPress. I create WP themes for a living and there is no way I could claim I've created an easy to use Blog CMS Anything I Want which all my clients love by me simply making a theme for them.

    One easy way I look at it is this. How many lines of code or graphics have I created (PHP, XHTML, CSS, Photoshop Graphics) when compared to all of the functions, classes, variables, logic that make up WordPress?

    Would the theme I create have any power without the WordPress backend and seamless integration with Plugins?

    Who created this page http://codex.wordpress.org/Theme_Development? That would be the WordPress folks who had to programatically allow for us to easily create the themes, look at other CMSs which have themes, WordPress's simplicity dominates them all.

    WordPress is like a Car and us theme developers are like a custom shop that can give it a new paint job and add on some sweet rims, but no matter how much we remake the car (WordPress) we haven't created anything of our own we're using their engine, chassis, braking system etc. There is one major change in my analogy to a custom car shop and that is unlike a custom car shop like Shelby they own the copyrights and can resell the car, with the GPL everyone have the freedom to copy, modify and distribute the source of the Theme.

    Like the GPL says “Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program.”

    And for those who have never read it please read the GPL v2 it's not that long http://www.opensource.org/licenses/gpl-2.0.php!

    Virgil

  • http://www.archaxis.com Archaxis

    Creating a theme from WordPress is impossible without the creation of hooks to do so and the WordPress API. The GPL'd code from WordPress created the facilities for us theme developers to interact with WordPress. While I can use my own PHP in WordPress this is not because I created this functionality it's because of the power of the WordPress API.

    Look at how easy it is to use a themes Functions.php, without the developers of WordPress creating the scaffolding for use to build upon many of us wouldn't be making money with such a graceful platform.

    The question is not about creating original work it's about selling the work and providing complete source code and not encrypting parts of the source code or using call home scripts.

    I think that WordPress needs to follow the guidelines that Zen Cart uses as it keeps things as the GPL intended them to be http://tutorials.zen-cart.com/index.php?article=11

  • http://silverpenpub.net Matthew Stublefield

    Did you read the article I linked above, or the comments I made? I essentially stated, “Using the API does not then require the software to assume the GPL because APIs are, by their very nature, created to allow that sort of interaction.” Though I am not a lawyer, the article I linked to was written by someone who is.

    After reading more about this matter, I stand by my assertion, but it sounds like the Thesis theme (which is what started all this, it seems) did lift code from WordPress. This would make it derivative, so it should have inherited the license. But I don't think every theme need be created that way, so it is possible to create one that doesn't need to be GPL. Most should be, and Thesis should be, but if one is created that doesn't derive directly, it needn't be GPL.

  • http://www.archaxis.com Archaxis

    Well the problem is the article you're referring to is based on Linux and I did read it. Linux is an OS as you know and when creating applications that have DLLs you can link to librarys which give your application a bunch of functions which you would rather not write from scratch. These libraries can be licensed under different licenses which can interact together and it can get rather complicated once you start making money, look at RedHat.

    However this isn't as complicated as everyone is making it out to be, WordPress is simple because of the way the WordPress Developers have created it to be through code. I've been building websites since the late 90's and have used every CMS under the sun and WordPress has developed into the best one out there in my opinion because of the elegant genius Mr. Mullenweg has invented and released to use for Free!

    The bottom line is this, yes a web design (theme) can work without WordPress and stand alone, however it wouldn't do anything since there would only be the following if you stripped out WordPress.

    1. Graphics
    2. CSS Stylesheet

    This would leave no functionality, and would't even allow a client to use a WYSIWYG editor to add content because here's what would be missing (all WordPress supplied)

    1. XHTML Body tag
    2. Header, Footer, Content areas and Meta tags
    3. jQuerry and and several other supporting JavaScript libraries
    4. Header with cool new menu system added in WP 3.0
    5. Built-in RSS and Syndication
    6. Sidebars
    7. Widgets
    8. Plugin system with slickest update system ever built in a CMS
    9. Admin Backend with unlimited extensible possibilities
    10. Easy install
    11. Awesome documentation and support
    12. Based on the LAMP Stack, my favorite stack
    13. Oh yeah easy to create themes!

    I could go on and on but I hope you can see that WordPress provides an ecosystem of which themes are a small apart of the whole. I've customized Thesis for clients before and all of the features they've added to WordPress are programmatic, they are fantastically helpful and slick, don't get my wrong I've been a an of both of theirs for a long time, I read copy blogger religiously but it this case I believe Matt's request to have the Thesis functions integrated into WordPress would only help improve WordPress for everyone.

  • Christophe de Dinechin

    Mike, I'm surprised that nobody has pointed this out so far, but you are rehashing the old argument that it is enough to put your own contribution in separate files to get a free pass and not be derivative work under copyright law. That doesn't hold water, as NeXT discovered when they tried that with their Objective-C front-end.

    Here is an analogy. Would you feel OK if I built a web site that served your articles, simply replacing your name with mine? Do you think I would have a solid legal defense if I paraphrased you: “Look through the source code of my web site: you won't find your articles in it, only the name of the web site” (which play the role of the API functions being called in my analogy).

    Actually, whether you are permitted to link with the code is the essence of the difference between the LGPL and the GPL. The GPL license does not allow linking, only the LGPL does. Since WordPress is under the GPL, linking is not allowed.

    By stating that the GPL reduces freedom, you seem to be confused about what copyright protects. The GPL doesn't remove rights, it grants you additional rights that copyright law alone would not grant you. Specifically, you are allowed to copy and distribute the GPL software as long as you agree with the license, something which you are not generally allowed to do.

    In other words, you ask the wrong question by asking if source code is copied. The correct question is whether the theme developer had to copy WordPress code to develop the theme. If he did, he was allowed to copy that code only by agreeing with the license. And the license explicitly request that the developer's own WordPress-calling code should be under a GPL-compatible license.

    If the developer doesn't want to release his own code under a GPL-compatible license, that's fine. But then, he is no longer allowed to copy or use WordPress. End of story.

  • photomatt

    Excellent comment — do you mind if I reprint it on my blog? If so let me know your main domain so I can link it — I can hook you up with one at WordPress.com if you haven't got one yet. http://ma.tt/contact/

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

    You raise a good point, but I don't agree that merely separating the files is enough. For GPL purposes, the relevant analysis is distribution: what is distributed, and what is contained in the distribution? If the distribution contains multiple files, and only one of those files contains incorporated code, that's still incorporation.

    The example you cite – of copying the entire article, but deleting the name, doesn't relate to a derivative work analysis. There, the relevant work is the article – there's no claim to underlying code, and the code serving the article would not be part of any infringement, derivative or otherwise.

    And, despite your assertion, I understand exactly what copyright protects. You misread or misunderstand my point about reducing freedom. Where anyone attempts to impose copyright restrictions on independent works that are beyond the reach of the original author, it reduces freedom. Copyright, by granting “exclusive rights” (see 17 USC § 106) limits freedom to copy, perform, distribute, etc. And most of us are OK with some reasonable copyright protections of original works. But my point is, if one tries to expand the reach of the GPL, and therefore copyright limitations, beyond where copyright law allows them to reach, then creators who WERE free and should continue to be free, are less so.

    Also, I disagree with you that merely downloading the software binds you to the GPL. The GPL is not a EULA – it is a license to modify, distribute, etc. a copyrighted work – no more, no less. This is a common misconception about the GPL, but a license is legally and functionally distinct from a user agreement: one is a unilateral grant of rights, limited or unlimited; the second is a mutual exchange of promises.

    The GPL is supposed to grant additional rights where copyright law takes them away; it cannot remove rights where copyright law does not apply. By supporting an extension of GPL to works that are NOT protected by copyright of a particular author, one imposes restrictions that have no basis in law.

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

    Matt, you might want to check the TOS before you do:

    http://perpetualbeta.com/legal/

  • photomatt

    Who reads that legal mumbo-jumbo? ;)

    Christophe's comment doesn't belong to him? How does your TOS interact with Disqus'?

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

    Matt, for what it's worth, I've never sought to enforce it. And to the extent that my permission is necessary for you to reprint any comments from this site, I'll grant you that license.

    The Disqus TOS expressly allows users to license their own content – to the extent that its terms conflict with mine, it would probably be considered that, by using Disqus on the site, I have implicitly licensed them to republish comments.

    I'm not violating the GPL here, am I?

  • Christophe de Dinechin

    Mike, there is no debate that the GPL doesn't bind you if copyright doesn't. But are you stating that copyright doesn't protect WordPress code? Or if it does, that copyright law allows someone to copy software at will? “But, your Honor, the only reason I copied Microsoft Windows is to run it, Mike told me that was OK”…

    In short, what rights does a theme developer have over WordPress under strict copyright, i.e. if he doesn't accept the GPL?

  • http://blog.datadirt.net datadirt

    Thanks for the post, I'm quite insecure about the whole issue; recently, I heard Matt and Kris disucss the issue and blogged about it (link). The article spun an interesting discussion; basically it seems that the answer to the question if commercial plugins are a derivative work or not definitely depends on one's point of view. I'm with Matt, even though I strongly feel that plugin and theme coders should be a able to make a decent living. Difficult question, some day a court will probably give us the “pragmatic” answer.

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

    See the other thread. Short answer: you're looking at it the wrong way.

  • Eric Herrera

    “Those who seek to extend the GPL beyond the bounds allowed by copyright law, do not promote freedom but instead take freedom away.”

    From the standpoint of the public, the GPL grants more freedom of activity than copyright. On the flip side, the freedom you speak of for the copyright owner is the freedom to restrict the public.

  • June Tate-Gans

    While you are correct in assuming that the Game Genie and the Nintendo equipment are classified as goods, the software stored on those devices is not — check your manuals for those devices carefully: you are still bound by a software license agreement.

  • Boris

    Well, I am a “software guy” and I say Mike has a perfectly accurate view on software.

  • Boris

    Ts ts ts… Really, to start an answer in such rude manners? Pitty there is no “Dislike” button that I can click here.

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