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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.

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

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

http://perpetualbeta.com/legal/

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.

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.

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.

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.

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

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

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

“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.

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.

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

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

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.

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

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?

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?”

Nice post.

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.

“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.