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.

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.

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.

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.

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.

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).

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.

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.

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

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

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.

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.

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.

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.

“… 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.

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.

“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

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.

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.

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.

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)

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.

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.

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

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

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.

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.