Automatic SEO on the fly

Think you know everything there is to know abut SEO? Think you’ve got everything SEO-wise covered with your blog?

Yeah, so does everyone else.

But every once in a while, you leave something important out of your title. Or you accidentally stuff too many keywords in a post. Or you overlook one of dozens of optimizations that would give your site a slight edge over the competition.

Wouldn’t it be great to have an automatic reminder? A helpful assistant looking over your shoulder, altering you to the opportunity to make your post even a little bit easer for people to find?

You know it would be. That’s why, if you have a WordPress blog (and later, other systems) and you want people to find the things you write about, you can benefit from signing up for the new SEO service from the same folks that brought you Copyblogger and Thesis. That service is ScribeSEO.

This is not an affiliate link.

My links to ScribeSEO are not affiliate links. That’s not how I make my money. (I’m a lawyer, not a pro blogger.) But this service is so neat, and promises to be so helpful for squeezing that last bit of SEO juice out of every post, that I want to write about it.

It’s simple to sign up: install the plugin, and then select a service plan. You’ll get an API key that you plug right into the Scribe settings page in your WordPress dashboard. And then, you’re ready to optimize.

Okay, but what does Scribe SEO do?

When you write a blog post, ScribeSEO first tells you if there’s something missing – a custom title, keyword selection, or – Heaven forbid! – actual content. Once you pass those initial three checkpoints, you can press the “analyze” button and ScribeSEO checks the post out for keyword density, keyword position, post length, title length, number of links, and so on… and then you how to fix any flaw in your post that would stop it from getting the best possible reaction from the most common search engines.

Easy-peasy.

But I’m not a blogger!

Guess what? Doesn’t matter. I have a non-blog website that runs entirely on WordPress, using that back-end as a content-management system. There are no blog posts – only “pages” of a more-or-less static variety. And ScribeSEO works on them too. Basic info pages? No problem. Landing pages? Just as easy, and even more important to get right. If you’re using WordPress and any theme or plugin that allows for SEO tweaking (such as the free All-In-One SEO plugin, or the Thesis or Headway themes, to name just two) then you you’re ready to roll.

Zealot-friendly license

Here’s good news for you folks who think the GPL applies to any PHP script that runs in or near a computer that’s ever had WordPress installed: the ScribeSEO plugin is released under the GPL. (It’s a service-based pay model.) So breathe easy.

This is STILL not an affiliate link.

Yup, I’m still not making money off this. And you can try out ScribeSEO for yourself without paying a dime – they’ve got a free test drive. (And if you’re both clever and unscrupulous, you can probably figure out how to get multiple test free test drives. But don’t be a jerk.) Try it for yourself – and if you don’t love it, I’ll refund to you every penny I ever make off your purchase. (In case you’re not paying attention… that’s none.)

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

How to piss people off with a legal argument

There are no atheists in a foxhole, it’s been said, and there are apparently no agnostics when it comes to the potential application of the GNU General Public License (GPL) to WordPress themes. My last post, which analyzes the matter from the perspective of copyright law (as it must) generated quite a bit of debate even though it’s been raging for far longer than I’ve been following it. I concluded that, under our current copyright laws, WordPress themes are not “derivative works” and therefore are NOT automatically covered by the GPL (unless, of course, the theme author deliberately chooses to release under the GPL).

And that pissed some people off, and pleased a few others. One even accused me of wanting the powers-that-be to “bless” my decision to go with a premium WordPress theme. (Um, no.) Others encouraged the sides to settle the matter in court. Some simply waved their hands and said, “There is no debate,” as if they weren’t debating by leaving their comment.

Whatever.

Your opinions don’t matter

None of your opinions matter… and neither does mine. Derivative work, independent creation, something in between… it doesn’t matter in the end. Why not?

Because whether the GPL applies to WordPress themes or not… whether they are derivative works or not… whether they are part of a “combined program” (as the Software Freedom Law Center advocates) or not, the WordPress GPL can’t stop you from developing, distributing, making money from, and asserting copyright in, WordPress themes.

Because the Fair Use Doctrine protects you when you do.

How can Fair Use apply to premium WordPress themes?

First, it’s important to remember that the GPL is a copyright license: it allows people other than the author the right to copy, distribute, and modify a work – in this case, a piece of software – that otherwise would be restricted to the author only under copyright law.

That means that anyone who already has the right to do those things under copyright law need not worry about the restrictions of the license. The terms of the license only apply to uses which copyright law reserves to the author. And if a use qualifies as “fair use“, then copyright law expressly allows it without a license.

How does use of a work qualify as “fair use”? The law sets out four factors to consider:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107.

Each factor weighs separately in the analysis.

Purpose of the use

As to the first factor, copying for a commercial purpose “weighs against a finding of fair use.” Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1523 – (9th Cir. 1992), citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 2231, 85 L.Ed.2d 588 (1985). However, “the presumption of unfairness that arises in such cases can be rebutted by the characteristics of a particular commercial use.” Sega, at 1523. Such factors include whether or not the use complies with the “primary objective of copyright law [which] is not to reward the labor of authors but ‘[t]o promote the Progress of Science and useful Arts.’” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S.Ct. 1282, 1290, 113 L.Ed.2d 358 (1991).

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. Publication of premium WordPress themes, by definition, is commercial, but in many cases, arguably promotes that advancement of science and art when they help produce web pages that are more artistic or which function, in some way, better. Almost all WordPress themes are created with this intent, and would be difficult to sell as premium themes if they miss the mark.

Tha analysis finds support in the Sega case:

We further note that we are free to consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially. Public benefit need not be direct or tangible, but may arise because the challenged use serves a public interest…. In the case before us, Accolade’s identification of the functional requirements for Genesis compatibility has led to an increase in the number of independently designed video game programs offered for use with the Genesis console. It is precisely this growth in creative expression, based on the dissemination of other creative works and the unprotected ideas contained in those works, that the Copyright Act was intended to promote.

Sega at 1523. (citations omitted) Like in the Sega case, WordPress themes promote a “growth in creative expression” by making WordPress easier to use or more aesthetically pleasing. I think a court would find this factor in favor of fair use in the case of WordPress themes. But just for sake of argument, let’s tip the balance on factor one slightly against fair use for now.

Nature of the work

For the second factor, the “nature of the copyrighted work,” we look again to the Sega case, which states:

The second statutory factor, the nature of the copyrighted work, reflects the fact that not all copyrighted works are entitled to the same level of protection. The protection established by the Copyright Act for original works of authorship does not extend to the ideas underlying a work or to the functional or factual aspects of the work.

Sega at 1524. (citations omitted) And, “To the extent that a work is functional or factual, it may be copied.” Because computer programs are largely functional, “many aspects” of computer programs are not even protected by copyright. Sega at 1525.

To be fair, the “nature of the work” analysis can be much more complicated than I can discuss here, but generally speaking, more protection will be provided towards fictional, fantasy, and entertainment works, with less protection being given towards largely functional works, and none at all to some types of works that are purely functional. As a computer program, WordPress is highly functional in nature, and therefore enjoys less protection than pure works of imagination. Based on that sliding scale, it is fair to tilt the second factor in favor of fair use where the nature of the work is a content-management system for web pages, such as WordPress.

Amount and substance of the copying

The third factor is the “amount and substantiality of the portion used in relation to the copyrighted work.” In other words, how much of the protected work was used, and how important to the work was that portion? Both the quantity and the quality of the copies portion matter. Salinger v. Random House, Inc., 811 F. 2d 90 (2d Cir. 1987)(where copy was “essentially the heart” of a copyrighted work, factor three weighed against fair use).

In the case of WordPress themes, this factor weighs heavily in favor of a finding of fair use. No theme that I’ve ever seen incorporates any actual code from WordPress; instead, they rely on function calls to the main program, asking it to send data back to the program that comprises the theme. In other words, the only portion of WordPress “copied” are the names of the functions themselves. As a percentage of the total amount of code in WordPress itself, this is simply a tiny amount. Furthermore, the names of the functions are, in themselves, hardly the core part of the expression from a qualitative nature. Both from a quantity perspective and a quality perspective, there is almost no significant copying of any protected WordPress code. Factor three, then, weighs in favor of fair use.

Effect on the potential market

The fourth factor, though, is the real clincher that leads me to believe the distribution of premium WordPress themes is fair use of any protected WordPress works. The “market effect” test has been deemed by our Supreme Court to be “undoubtedly the single most important element of fair use.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556-57, 105 S.Ct. 2218, 2233-34 (1985). The “market effect” test determines whether the alleged copyright infringement would somehow depress or diminish the ability of the author of the protected work to market that protected work.

In this case, the answer is a head-slapping “Of course not!” It is axiomatic that a WordPress theme cannot function unless there is a copy of WordPress running to support it; in fact, this is one of the arguments that GPL proponents make to support their case that the themes are derivative works. The “copying” by theme distributors can never displace a single copy of WordPress, so there is no negative effect on any potential market; and in fact, by enhancing the aesthetic and functional value of WordPress, themes promote more widespread use of the underlying software. Developers of WordPress themes increase the market for WordPress, not depress it. Increasing WordPress market share is in the theme developers’ best interest, for more WordPress users means more potential customers for premium themes.

Because the impact of premium themes on WordPress market share is at worst neutral, and in all likelihood premium themes substantially bolster the market share of WordPress with respect to its competitors, the fourth factor weighs heavily in favor of a finding of fair use. As the “most important element” of fair use, this finding cannot be understated.

What it all means: Blow it out your GPL

Of the four factors of fair use, two weigh heavily for fair use, one slightly in favor, and the other we allowed to tilt slightly against even though it could easily go in favor of fair use. To be sure, changing the underlying facts could change the outcome of any individual factor, but based on the facts as I understand them, development and distribution of WordPress themes, to the extent they engage in any “copying” or derivation from WordPress code, are resoundingly fair use of that code. And if they are fair use, then federal copyright law expressly allows them to be made, copied, and distributed with no regard whatsoever to the GPL or any other license that may apply.

So all the hemming and hawing about whether themes area derivative work, or “should be” a derivative work, is completely irrelevant. Because the GPL need not apply in either case.

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.

I knew that WordPress itself was covered by the GPL. What I didn’t know was that themes, even commercial themes, built to run on WordPress, also fall under the GPL, according to some GPL experts.

In this vid, Matt Mullenweg talks about the benefits of the GPL at some length, even going so far as to call those commercial theme vendors who don’t release their code under the GPL as “evil.” (Looking for some commercial-grade but GPL-released themes? Find some here.)

Now, I’ve been using a commerical, non-GPL theme for this and some of the other blogs I maintain – the very slick Thesis theme – but I hardly consider it “evil” that Pearson, et al. maintain a non-GPL license regime. They might arguably be in violation of the WordPress GPL, but there’s nothing inherently “evil” about their product or what they’ve chosen to do with it. (Notably, Pearson offers a number of free themes for download at his site, including a couple which helped cement his reputation as a talented WP theme designer.)