However, most theme designers seem to have artistic rather than software engineering background, and understandably, their software skills might make a copy-paste approach from an existing theme seem much more appealing than it is to me. (Which would explain why I see the same *faulty* theme code over and over again…)

So in a way, this might indeed restrict the validity of this article’s main point, because the reality might very well be that most themes are copies (PHP-wise) of other themes.

No.

2. If not, how do you run WordPress without copying it?

You don't. But WordPress allows you to download and install the software without first agreeing to the GPL. Go here: http://wordpress.org/download/ See that check box? The on that requires you to agree to the GPL before downloading? It's all in your imagination. There's not one in reality. No one agrees to be bound by the GPL in exchange for the privilege of installing WordPress. Not even the most aggressive of GPL advocates suggest that they do.

And even if they did, it wouldn't matter. Agreeing to the terms of the GPL only limits you from distributing copies or derivative works under non-GPL license terms. So if there's no derivative work, and no copy, there's no GPL violation.

2) Why is WordPress under the GPL and not LGPL?
Because it forked from B2, which was GPL v.2.

3) Are themes “linked” with WordPress or truly independent entities?
It doesn't mater for copyright purposes.

My answers to these questions are equally simple:
1) Acceptance of the GPL
Wrong. Read the GPL.

2) Because the authors intent was that linked code would be derivative
Intent of the authors cannot change the application of copyright law.

3) Yes, they are linked.
“Linked” has no meaning under copyright law, no matter what FAQ you're reading.

Oh, and the answer is:

6) Something more subtle that I missed entirely.

You are quoting a part of the GPL that refers to “copying, distributing or modifying”, and similarly, the GPL v2 preamble states “offer you this license which gives you legal permission to copy, distribute and/or modify the software”. So I don't see how this rebuts my argument at all.

Copyright law is pretty clear that by default, you are not allowed to copy software. If your EULA argument proves anything, it's precisely that you need permission to copy. So I don't follow you here.

You also say there's a separate permission for downloading, but the WordPress main download page shows a link saying “License/GPL” that points to a verbatim copy of the GPL. So I'm sorry, not following you there either…

Still, trying harder to follow you, here are some possible interpretations of your points:

1) It's OK to copy GPL software without agreeing to the license. If so, why?

2) You can agree with the license piecemeal, e.g. agree with the part that allow copying but disagree with the restrictions on modifications. If so, why is it OK to accept only the part of the license that suit you?

3) The opinions of the authors of the GPL do not matter much, in particular this one: http://www.gnu.org/licenses/gpl-faq.html#Linkin…. If so, why do you think your opinion is more important than theirs?

4) What all computer experts and the GPL authors call “linking” is only a “supposed combination” and therefore irrelevant… If so, can you explain how you think software is built?

5) Despite the GPL's obvious intent (as demonstrated by the FAQs listed above, or existence of a separate license, the LGPL, which allows linking), linking does not automatically create a derivative work. If so, how is that not a clear disagreement with the license that automatically terminates it?

6) Something more subtle that I missed entirely.

All this boils down to very simple questions:

1) Why is someone allowed to copy WordPress?
2) Why is WordPress under the GPL and not LGPL?
3) Are themes “linked” with WordPress or truly independent entities?

My answers to these questions are equally simple:
1) Acceptance of the GPL
2) Because the authors intent was that linked code would be derivative
3) Yes, they are linked.

Ergo, themes must be covered under the GPL.

As for your second comment, below, first I'll refer you to the GPL itself:

“You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.”

The only way, under the GPL, to accept the GPL, is to distribute “the Program” or a derivative work of the Program (defined elsewhere, as the term “derivative” is used in copyright law. The notion that you and many other adopt, that one “accepts” the GPL merely by downloading a copy of WordPress, is expressly rebutted by the GPL itself.

Unlike WordPress, Microsoft has a EULA – which you agree to just by opening the sealed package. WordPress does not. It only has the GPL, which, under its own terms, only gets “accepted” if you distribute the protected code.

(So how does one run WordPress without copying it? You don't. But WordPress gives you SEPARATE permission to download the code, outside of and independent of the GPL – see the WordPress download page.)

Finally, let's reduce your argument to it's natural absurdity: a user agrees to the GPL merely by installing or running WordPress. (not true, but let's pretend.) What, then, does the GPL allow or require them to do? Only this:

If the user, who has agreed to be bound by the GPL, chooses to distribute the Program (WordPress) or a derivative work of the Program (as defined by copyright law) then they are required to license that distribution under the GPL. So if that user develops code that has NOTHING TO DO with WordPress, the GPL does not limit that activity. If the user develops code that WORKS WITH WordPress, but is not a “derivative” under copyright law, then the GPL does not limit that distribution in any way.

Follow?

You phrased the debate as “if the theme's not derivative, the GPL doesn't apply to the theme”. There's no debate about that. But nobody can run the theme alone. The debate is whether the combination of WordPress and the theme is derivative, unless you can point to users actually running the theme without having copied WordPress first.

Furthermore, even if a user “agreed” to the GPL by merely using the software – something I do not concede – the GPL by its own terms applies only to those works protected by copyright law. Fair use is a codified exception to copyright law. Without copyright law, your whole argument is stuck – if the theme's not derivative, the GPL doesn't apply to the theme.

WordPress, by the way, uses GPL v.2, not v.3.

Your two arguments (fair use here and derivative work in another article), focus on what copyright law says about the theme code (e.g. whether it's derivative work, or whether fair use can be claimed). You need to first ask what copyright law says about the WordPress code.

WordPress software is protected by copyright. If a theme author uses WordPress, he is allowed to do so only because the GPL, not copyright law, gives him a conditional right to do it. In other words, without the GPL, a theme author has no right to copy the WordPress software at all, and therefore can't use it. Or as the GPL v3 para 9 states: “nothing other than this [GPL] License grants you permission to propagate or modify any covered work”.

So there is no debate that you are free to write whatever theme you want and distribute it. But as soon as you copy WordPress in order to run the theme (whether you are the theme developer or the end user), you are only allowed to do so under the terms of the GPL. Because it grants you additional rights, the GPL, not copyright law, gets to define the terms and conditions for these rights to be granted.

And the GPL does so in a rather precise way. Using the exact words from GPL v3: To “modify” a work means to copy from or adapt all or part of the work in a fashion requiring copyright permission, other than the making of an exact copy. The resulting work is called a “modified version” of the earlier work or a work “based on” the earlier work.

If you run a theme in WordPress, you need copyright permission in order to copy WordPress, and the code added by the theme means this is not an exact copy. Therefore, there is no possible discussion that, as defined in the GPL, you “modified” WordPress. This has nothing whatsoever to do with derivative work: the definition of “modified” is in the license itself.

The GPL does not deprive you from fair use rights or from the right to your own code. If you don't want to follow the license, that's perfectly fine. However, in that case, you revert to basic copyright and you are not allowed to copy WordPress. Nothing in the fair use doctrine or in the definition of derivative work will allow you to copy WordPress. And since a theme can't work without WordPress, you are basically stuck.

In conclusion, it's good to remember that the GPL doesn't deprive you from any right, it grants you additional rights under some terms and condition. You are not forced to accept the conditions, but if you don't accept them, you can't copy the software. Whether you are a theme author or not doesn't make a difference. Whether what you created is from scratch or not doesn't matter. Whether you call or link or whatever doesn't matter.

While I respect you analysis of the situation from the perspective of intellectual property law, but I'm afraid it sounds a bit technically uninformed, and nowhere near as absolute as you initially indicated. It does very much depend on the specific facts of the case.

As for the fair use implication of deriving a premium theme on a previously-release GPL theme, it would vary greatly depending on the relationship between the “source” theme and the work derived from it. Did the premium theme copy “essentially the heart” of the original work, or just snippets of purely functional code that can't realistically be crafted in any other way?

As for re-use of a premium theme, certainly there are potential fair use defenses for any such re-use but again, the application would vary widely depending on the specific facts of the case.

Mike – could you expand on how fair use applies in this situation?

And if you do believe fair use still applies, doesn't it also imply that anyone could also re-use a premium theme's code without permission or GPL?

I'm curious, however, what about that phrase would give offense. I'd prefer to discuss it outside these comments, however. http://perpetualbeta.com/contact/

This very website runs on WordPress – does that make my writing a derivative work? Almost all of us would agree that it does not. If I write a new WordPress plugin that copies numerous chunks of code from the primary codebase, is that derivative? Almost all of us would say “yes.” Themes are in a more grey area; I tend to think that, absent copying large chunks of code, they are not derivative. Obviously, not everyone agrees with me. But it's worth noting that the lawyers of various stripes who have looked at this issue fall on both sides; some of them have reason to advocate one side or another and some do not.

Is that not how it's set up? Everyone can have this for free and they can even make a gazillion dollars off of it, if they honor the license it was released under, if not, then you may not…

Thanks for giving us a place to has out the conversation, btw.

“There are no atheists in a foxhole, it’s been said, and there…”

Just wanted to point out that this “saying” is extremely insulting to us non-believers. I'm not particularly offended in this instance since I understand you're simply using it as an opening in to an, as mentioned, great article. However, I think it's important to point this out and hopefully let this particular saying slip into history.

Thanks. :)

I don't really know if the GPL applies — I've heard both sides argued well, albeit in a different context than WordPress. I tend to agree with you that it doesn't apply, but I can see it both ways.

Whether the GPL spells out “combined code” or not is irrelevant – as a copyright license, the GPL cannot extend its reach beyond those matters covered by copyright law. And the “combined code” issue is a red herring, because a proper copyright analysis applies to the code as written, saved, and distributed, not code as executed. That would be patent law.

You may have missed the first link in this post: http://perpetualbeta.com/release/2009/11/why-th…

I don't believe the GPL applies. I did the Fair Use analysis because, as any lawyer knows, it's better to win on two fronts than just one. (Every copyright lawsuit I've ever participated in raises BOTH non-infringement AND fair use)

Given that, your analysis is wrongly focused. The GPL allows for all the uses that, under a restrictive license (or under your analysis, no license whatsoever) would have to be allowed under the First — except one, which is the expressive value of one's choice of licensing scheme. I don't think one would do a fair use analysis at that point, but if for some odd reason you did, well, the decision to not use GPL wouldn't be a winner for Thesis.

In other words, commercial use is presumed to be unfair, but that presumption may vanish if the use also promotes advancement of science and art.”

So if I make a slideshow as ART of my photography and use an mp3 that I've purchased in it and post it online, is it potentially Fair Use after all? Or am I reading too much into that line?

————–
Meanwhile, reading the rest of this about the GPL, WordPress & premium themes? Fascinating.

The GPL attempts to turn fair use on its head. It removes *any* restrictions against distribution of a work, in whole or in part (providing you pass along the GPL with it). The GPL basically says that any use of the content is fair use, *as long as you continue to comply with the GPL*.

The Constitution does not explicitly define “separation of Church and State”. But the courts have inferred it from the First Amendment. So I would think that even though the GPL does not spell out the “combined code” concept in its main text, the definition of the idea in a supporting document would be something that the courts would take into consideration. (I'm tired, so this might not be the best analogy)

And that's why we'll be having this debate next year, and the year after – because the authors of the allegedly infringed works would rather talk then test their theories in court…. at least, so far.

http://www.mitchcanter.com/2010/wordpress/the-g…

If it does apply it would seem that it would be applying the letter of the law and not the intent?

(Note I'm not commenting on your prior post because I'm still pondering that one. Your argument there may be more relevant, not sure yet.)

@Chip, your comments on this and other blogs I have followed with great interest.

I'm pretty sure, though, that – like me – you're not holding your breath while doing so.