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WordPress Creator GPL Says WP Template Must Be GPL'd
An anonymous reader writes "Matt Mullenweg (the creator of open source blog software WordPress), after review by various legal experts, is sticking to his guns that themes and plugins that 'extend' WordPress violate the GPL if they are not themselves distributed under the GPL. Matt has gone so far as to post this on Twitter. According to Matt, the premium template called Thesis should be under the GPL and the owner is not happy about it. WordPress is willing to sue the maker of Thesis theme for not following GPL licensing. The webmasters and Thesis owners are also confused with new development. Mark Jaquith wrote an excellent technical analysis of why WordPress themes inherit the GPL. This is why even if Thesis hadn't copy-and-pasted large swathes of code from WordPress (and GPL plugins) its PHP would still need to be under the GPL."
...is why I don't do any work creating anything for WordPress. CopyFree is the way to go.
"There is a way that seems right to a man, but its end is the way of death." Proverbs 16:25 (NKJV)
Given that loads of major software companies have released plugins for WordPress, including payment gateways, social networking plugins, twitter plugins, etc ... doesn't this expose a huge amount of proprietary code to potential (and possibly unintended) open-sourcing?
------ The best brain training is now totally free : )
"People Who Care About Details Trust Thesis". -- http://diythemes.com/
Presumably the licencing of the platform you're developing for could be considered a "detail"
-=Maggie Leber=-
Just goes to show that data vs code is a false dichotomy:
The programming language and data description language used should not affect where the split is.
This is even more obviously worse if you for example transfer your data as JSON, so that the data interchange language is the same as the programming language.
Hey don't blame me, IANAB
As someone who just paid $50 for a premium Wordpress Theme, I find this post to be relevant to my interests!
Yeah? I like the GPL? So what? Did you release my GPL under the GPL so I can license while I license? Come on, man. Try harder.
IANAL, but I don't buy it.
The GPL is based on copyright.
If I sell a product that doesn't contain *any* of your copyrighted code (and API calls certainly can't be copyrighted), you have no basis to sue me for copyright.
# (/.);;
- : float -> float -> float =
Matt has gone so far as to post this on Twitter
Offenders are really gonna get it now. This guy means business.
The idea of the GPL, at least the original idea, seemed to be that if you modified the code of a project and distributed that modified version, you also had to distribute the code. Ok, fair enough and easy enough to understand. So Linksys could go and use Linux on their routers, and they have to release the mods to Linux they make, but not any of the software they run on it.
However then you get things like this. A theme for something they now say has to be GPL. Not a new version of the software, a theme that adds in to it. Ummm ok. What about plugins, do those also have to be opened up? This leads to other worries, will GPL authors try and say if you use a GPL'd software to create something (like a picture with GIMP) that too has to be opened up?
That is some of the "viral" nature MS was bitching about. You GPL something and then you want to say everything it touches has to be GPL'd too.
I think people get a little miffed when they find that using GPL software got them more than they bargained for.
If he's taken GPL code and put it in Thesis, game over. It's GPL. Period. Whatever he could have argued about API calls is now irrelevant.
At this point, the only thing I'm curious about is what would happen to WordPress users who start to distribute Thesis without his permission.
it doesnt matter what licence the templates are or what licence the plugins are as long as they are a GPL compatible licence such as MIT or BSD or Apache.
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I'm not a programmer (at least, not a good one), but I was under the impression that one of the major fine-lines in the GPL is how linking occurs: if you link like something is a library call, you're fine. But if things are compiled together, you fall under the purvey of the GPL.
How does the GPL deal with interpreted languages? If there isn't any cross-compiling that takes place, where does one piece of software end and another begin?
The ______ Agenda
I'm pretty sure that's a very funny statement.
If the program dynamically links plug-ins, and they make function calls to each other and share data structures, we believe they form a single program, which must be treated as an extension of both the main program and the plug-ins. This means the plug-ins must be released under the GPL or a GPL-compatible free software license, and that the terms of the GPL must be followed when those plug-ins are distributed.
If I add a module to a GPL-covered program, do I have to use the GPL as the license for my module?
The GPL says that the whole combined program has to be released under the GPL. So your module has to be available for use under the GPL.
So basically it comes down to whether or not WordPress and share code or data structures. If calls functions from WordPress and shares the data structures (which is kinda the default in PHP if they are using includes or requires) then it should be released under the GPL.
Unless you can take and make it work by itself (which could be possible if all it is doing is generating a file with CSS in it), it's going to be covered by the GPL. Otherwise they are boned. What they could do is release the next version of with a skeleton plugin that is released under the GPL that handles all the calls and then forwards them to a daemon or program that returns custom data structures. This would severely impact performance though and I doubt a lot of people would keep using it.
Custom electronics and digital signage for your business: www.evcircuits.com
Not only us the GPL an extremely popular license, but many OSS heads push it as the One True Way(tm). Other licenses aren't really open because they don't FORCE people to be open with their products. They sell the GPL as being synonymous with OSS.
While that isn't correct, you have to accept public perception and in particular that with companies, it is perception of non-technical people. If there's a lot of crap going around with the GPL being the king of OSS and people getting hammered for not opening any and everything up, well don't be surprised if companies get cold feet. The non-technical managers that make the decisions will say "Wait, so someone can be sued for making a theme with GPL'd software? So like if you make something with or for GPL's software at all you can be in trouble? Fuck that, we use Microsoft! They want money, but they are clear on what you can do!"
What if you DIDN'T use the exposed WP interface, and instead wrote your own library-like exposed front end... then your theme would call these functions?
I reason that the libraryised WP would be GPL, as a derivative work, but the theme itself would not.
Matt has gone so far as to post this on Twitter.
Wow.
Did I sleep through the part of technology evolution where Twitter went from being a venue to tell others about the itch you currently have on your behind, to being "I really mean business. This is official and serious!"
Ultimately this is a good thing. I've worked with a number of non-GPL based PHP solutions like Interpire and to a lesser extent Magento - and have (against my better judgement) "bought" modules for these which typically meant the thing is encoded with Zend Optimizer or some other crap and doesn't work half the time anyway.
While I'm not crazy about Wordpress, you do have the same issue with Drupal or many other CMS solutions. It's part of the price you pay for playing ball with someone elses CMS/Framework.
Frankly, I'll accept these terms any day than having to play ball with byte-code compiled PHP.
Good point. The market will learn to adapt to this I reckon.
If someone makes a plugin (that is GPLed) that reads another form of file (which has nothing to do with the original Wordpress codebase) and is a *true* template language which uses SUBSTITUTIONS like {post_title} and {post_body} rather than get_post_body();
currently templates are PHP coded, they should not. It's bad design to begin with and quite obvious why it inherits the GPL.
Surely this new template engine would not be infected by the GPL as the new plugin is only a READER of another format. The plugin itself would have to be GPL but the files it reads would not ;-)
Otherwise the logic would be that someone who makes a database plugin to talk to a database, say Oracle and then Oracle DOES NOT become open source, which is stupid.
Slashdot needs Geekcode | Can anyone recommend any good SCIFI? My tastes: Foundation, Startide Rising, CITY, Ringworld,
IANAL, but it seems as though all end-users creating custom themes may be breaking the license terms?
BTW- I wonder about the config file. To be legit, do I have to release my authentication keys, too?
It may be clear to US, but the problem is people like this get the air time, and it does cause confusion and scares good people away. You never hear about the 1000's of people every day that DON'T have license issues, and rarely the outcome of things like this when the idiot at the helm loses the battle. It looks bad and leaves bad tastes in peoples mouths. Remember too, even if you are in the right, if you get sued it costs you $ and could bankrupt smaller companies so being right doesn't always mean diddly.
This is also a good way to kill off a project, who wants to be working with a madman?
---- Booth was a patriot ----
First and foremost all he will accomplish by this is scaring companies aware from using GPL stuff. Second, we all know he's wrong (at least that seems to be the theme on /.), but should this make it to court and be decided in his favor it could have serious ramifications on software of all types. Stating that a 3rd party plugin or theme should be held to the license of the of it's integration software could be a serious mess for a lot of people.
How then can Wordpress say that its licensing is required?
I run Mixergy.com, where I did the interview with Matt & Chris. Sorry my site is down. I'm working on it now.
Movable Type Open Source and Melody (a fork of MTOS) are GPL, but their templates are actually a HTML-like language that is interpreted by MTOS or Melody. As such, they are akin to XSL documents, not PHP files, in part because they never link with MTOS or Melody the way WordPress PHP files and WordPress theme PHP code link together. Therefore, if Thesis were rewritten as a theme for Movable Type or Melody, it would have a very strong position.
His argument is that WordPress Plugin should be bound to the WordPress license because it uses hooks and attributes from their API. By that very argument Wordpress should be using the PHP License.
Don't like it? Change copyrights and remove protection of derived works to the inspiring or extended author. This is merely the intent of COPYRIGHT LAW.
So if it's bad, then it's bad because this is what copyright law says.
At least, unlike, say, the closed source program BitKeeper, you aren't forbidden from working on extensions or improvements to any other blogger software.
Or, as with, say, Microsoft's license, lose any and all patent provisions under the original code if you sue the author.
Or, indeed, as with, say, the license for many MS database produces that says you cannot benchmark their products without first talking to them.
It all derives power from copyright law AS APPLIED.
Don't like it? Change copyright.
Themes don't inherit the GPL. See the following article:
WordPress Themes, GPL, and Copyright Case Law
http://www.chipbennett.net/2010/07/wordpress-themes-gpl-and-copyright-case-law/
Chris Pearson wants some real solutions!
It's worse than that. If you RTFA, they make the claim that there are "external APIs" and "internal APIs", and using the former is perfectly fine and dandy, while using the latter makes your code a derived work. Since the classification is, effectively, arbitrary and subject to change at the whim of the author, this puts any software relying on any WordPress API at risk.
This post is based on several false premises, please read the well-written technical analysis linked to in the OP, particularly the discussion of what a wordpress "template" is.
Effectively, the template is additional PHP *code* that extends Wordpress and runs along with it in the same memory space, it's not a "theme".
They also clearly distinguish what happens here and what happens in cases like your GIMP example, pointing out that code that talks to their APIs, or new artwork, .css or .jsp files does not need to be GPLd, only code that is designed to run mixed together with the GPLd Wordpress code (the template).
Take all F/OSS and 'commercial/paid for' evangelists.
Place on deserted atol.
Take a B52 and a nuclear bomb.
Fly B52 over atol.
Drop bomb.
Rants and pointless drivel cease.
--- Users are like bacteria -> Each one causing a thousand tiny crises until the host finally gives up and dies.
The key question here is whether a theme is a derivative work of Wordpress. If it is, then it needs to be licensed under the GPL. If not, then it doesn't.
Let's presume that the template itself is a derivative work -- what does that mean for other potential 'derivative works,' where one piece of software is intended to work in and be integrated with another piece of software? Think software plug-ins or loadable modules or executables using system libraries. Heck, doesn't it really mean that if one piece of software exposes some sort of interface for other pieces of software, then those other pieces will be derivative works of the first? (Does it even matter if they share an address space?) If Wordpress templates are derivative works, then it seems to me that all those other things are too. And that's a big problem because it means that you, as a programmer, now need a license to link or to create interoperable code.
In reality, I don't think that these are derivative works -- that's a legal term used in the copyright act for things like motion picture adaptations, translations, "or any other form in which a work may be recast, transformed, or adapted." That's just not happening here -- the original isn't being touched. There's no new expression being created.
The other argument is basically, "well, the theme itself isn't a derivative work. But, when you combine it in memory with wordpress, the combination is a derivative work." First of all, I think that's wrong -- that's more of what the copyright act calls a "compilation." But, I don't think it matters if I'm right on that or not, because this is a derivative work that isn't covered by the GPL. The GPL only covers the *distribution* of derivative works, not your creating and using that work for yourself. And, that in-memory copy isn't being distributed -- it's just sitting on your server. (This is the problem that the GNU Affero license was trying to cover -- using GPL'd software to provide a hosted service.)
In fact, all of this has been litigated before in the 9th circuit -- the case was Lewis Galoob Toys v. Nintendo. (It's in Wikipedia).
As far as I'm concerned, this is the biggest news of my week. Bigger than Old Spice guy. Bigger than jive. I support the GPL and the developers of WordPress, but I also feel some sympathy for those who want to get paid to come up with beautiful styles for WordPress blogs. I think Mark's post addresses that pretty well, though.
What I'm wondering, though, is this: do WP theme developers such as the Thesis folks have any other protection for their product? That is, can they argue that their code is GPL, but the visual result is something they own the copyright on? Or, can the resulting aesthetic effect be looked at as an unregistered trademark, which only the creator can license for re-use, regardless of whether the html / css / js code is freely redistributable under the GPL?
Anyone get what I mean? Bruce, you there? ;)
----
Not to be confused with Col.
The GPL permits anyone to make a modified version and use it without ever distributing it to others.
IANAL, but it seems as though all end-users creating custom themes may be breaking the license terms?
The GPL is a copyright license. As far as WordPress goes, the GPL is covering the code at the heart of WordPress and any derivative works of that code.
I'm not a lawyer and haven't spent much time analyzing this particular case (the WordPress engine + themes), but even if the WP templates are derivative works, I don't see a problem here.
The WP templates aren't directly being distributed when they're used on a website. What's being distributed is the output of running the PHP theme code. Note the following from the GPL FAQ:
In what cases is the output of a GPL program covered by the GPL too?
Only when the program copies part of itself into the output.
Though the themes may contain PHP code that is tightly coupled with the WordPress code, I believe that the simple HTML markup generated by ( WordPress + theme ) is quite separate.
BTW- I wonder about the config file. To be legit, do I have to release my authentication keys, too?
Even if you were to release code online using the AGPL, you wouldn't have to release your personal keys. Per the GPL FAQ again:
I use public key cryptography to sign my code to assure its authenticity. Is it true that GPLv3 forces me to release my private signing keys?
No. The only time you would be required to release signing keys is if you conveyed GPLed software inside a User Product, and its hardware checked the software for a valid cryptographic signature before it would function.
In that specific case, you would be required to provide anyone who owned the device, on demand, with the key to sign and install modified software on his device so that it will run. If each instance of the device uses a different key, then you need only give each purchaser the key for his instance.
coding is life
Well, what is a derivative work? Guess what? The GPL itself doesn't define that term.
Of course it doesn't, since that term is defined by the legal code regarding copyright in your jurisdiction. Because the GPL is not anything else but a copyright license, it cannot apply to anything which is not a derivative work by the definition of the relevant legal code, because anything not a derivative work is not restricted by copyright law. So if the GPL did give a definition it would be irrelevant, and if it happened to differ from the legal definition at your current location in space-time, it would be wrong. How's an irrelevant and wrong definition going to reduce confusion, exactly?
But then you go and look at the legal code and see that, what do you know, the real definition of derivative work is vague. This is an issue that applies to all of copyright, and sparks many debates (and lawsuits), and has nothing specifically to do with the GPL. The lack of a clear definition is not something the GPL can fix.
It's trivially easy to comply with, but it's VERY hard to make a clear determination if the restrictions extend to you or not. So most people "just take the easy way out" and license GPL.
It's a fair point, that people license their own code GPL just because it's the only way to be sure they aren't violating the GPL of some other code they are using.
However the same issue of confusion applies in any situation where it matters whether you're creating a derivative work or not. With proprietary software, that means people "take the easy way out" and avoid doing anything with the software that could possibly be derivative. The only time the issue doesn't matter is when the license is so liberal it doesn't matter if your work is derivative or not because you can just repackage it with whatever license you want anyway.
And while BSD-style licenses are great for those who want to give away code, I don't think it's worth abandoning the advantages of Copyleft just to avoid the stick issue of what exactly constitutes a derivative work.
The enemies of Democracy are
PHP files late bind. The program calling the library does not get locked into the library until runtime.
Here's a way to demonstrate how late binding can complicate the issue. Imagine someone implemented a mock version of all the WP library functions the theme used and those mock libraries were not GPL licensed. Combining the theme with those mocks would not force the Theme to be GPL.
So, I think it's valid to argue that Theme files only have to be licensed under the GPL once they get combined in a word press install. The theme developer cannot assume to know what the end user will combine the theme with. Perhaps it will be with those mock libraries. :)
Copyright law defines a derived work. Why does the GPL have to?
"And this is why I hate the GPL."
And this is why you want the GPL to do so. So you can disobey copyright law.
"It promotes the "If you want to comply, you can do no wrong by licensing GPL" attitude."
And this is wrong how?
"but it's VERY hard to make a clear determination if the restrictions extend to you or not."
Blame copyright law then when it comes to software and what defines a derived work under copyright. That's defined by law (as is what determines a copyrightable product).
"So most people "just take the easy way out" and license GPL. Not out of belief, not out of fear, not out of requirement, but out of confusion and misunderstanding..."
Most people use MS Windows because it's the "easy way out". Not out of belief, not out of utility, not out of requirement, but out of confusion and misunderstanding...
I don't hear complaining from you there.
Jaquith's article claims word press themes inherit the GPL because of how intimate they are with word press. for example, they can call word press methods, and word press will call methods in them. By this logic, is any software one writes for Linux obligated to be GPL? I had always thought people were free to distribute whatever application any way they wanted for Linux (provided you were writing it from scratch). It seems that any desktop application interacts with the OS at similar deep levels described in the article.
Maybe this has always been the case and i was just mistaken but some closed source video drivers and codecs seem to say otherwise.
I'm pretty sure I've seen other blogging software which implements the Wordpress template API. Couldn't one just claim that the templates were written for another blogging suite in a way that is compatible with Wordpress? Assuming there are multiple suites that can use the same templating format (and someone could write one, even if none currently exist), this seems tantamount to claiming that all Microsoft Word documents are covered by the GPL because someone wrote a GPL'd program that can read them.
Personally I feel like GPL over steps its bounds when it try to grab plugins under its wing. For me its a simple test. What if I just just so happened to make a closed source word press competitor. it just so happens that this theme/plugin works perfectly in my closed source solution without any reference or dependency to WordPress. Please explain to me why that plugin needs to be under GPL just because it just so happens to work under WordPress. Doesn't that seem silly to anyone else? Remember I'm just talking plugins in general not this specific case however it may apply. I haven't sifted through all the details
This is what the LGPL is for. For anyone who's done C/C++ coding off-web, this is almost a no-brainer. LGPL allows "linking". In WordPress's case, if the core were written under the LGPL (instead of the GPL, themes written from-scratch, only linking against documented API calls, ought to be in the clear. (I'd want to go back and re-read the LGPL again to be sure, though. For an interpreted language like PHP, there may be caveats based on whether #require_once lines or the like needed to be added to core code--but WordPress likes to put most of its configuration into a database, which might obviate that. Dunno; I never switched themes in WP.)
But, yeah, he's on crack if he thinks that written-from-scratch CSS files for a theme get sucked into the GPL. That's like saying an XSLT that works on a particular schema has to be GPL'd if it's used on a GPL'd XML file written to that schema spec. Another example might be requiring a STDIN->logic->STDOUT filter to be GPL'd if it operates on GPL'd data.
Of course, the age-old /. cry of IANAL applies very strongly here...
tasks(723) drafts(105) languages(484) examples(29106)
Reading the Fine Article, I'm very unclear whether his reading would also apply to any code running under an interpreter that was licensed with the GPL. Or perhaps even more than that.
We must recall all the FUD that used to be spread about Linux that said that any program made with gcc would also have to be licensed under the GPL. What is different about the reasoning here?
Which is not to say that the claims here are wrong, but just that I would be rather happier if he had not only said, "This is why I am right in this case" but also given a rather clearer line on "And if this were different I would be wrong..."
Now, allegedly, Thesis lifted sections of code from a GPLed work. This affects things quite substantially, however, there's an argument about fair use here that I'll not get into.
Aside from that, Jaquith is completely wrong.
Indeed Wordpress and Thesis are run as the same unit. That does not make Thesis a derivative work. It makes the work that the user made combining the two of them into a derivative work. Thesis does not derive from Wordpress any more than Wordpress derives from Thesis. The fact that two works interact does not make them derivative. That's not what the word means. The word means "derived from". It does not mean "intended to be used with". Revision notes on books are not derived works even though they directly reference specific parts of a work of fiction.
There is no court precedent on Linux modules. These are typically licensed under the GPL because it's convenient to do so. However, I see no reason why they must be.
As for copying from existing themes - there's a clear fair use argument here. Themes must interact with the copyrighted software. Code for interoperability is often considered to be fair use.
The opinions of Drupal and Joomla are completely worthless. Their knowledge of content management is formidable but they are not legal professionals.
The Thesis code is completely separate from Wordpress. Granted, it is useless without Wordpress. It may well be that it's not legal to use Thesis with Wordpress, but the copyright on the Thesis code is owned by whoever wrote that. They can distribute it as they want. The person combining it with Wordpress code is the one at risk of violating the GPL.
Code you can copyright; specifications are a different matter entirely.
Clearly someone needs to write a competing system with the same APIs and blow their argument clear out of the water.
The vast majority of pirates support copyright in it's traditional role as an industrial regulation. The objection is to the recent expansion of copyright, largely by non-government, unelected agencies into people's private affairs through bullying, intimidation, and barratry.
No one was ever sued for taping songs from the radio, or recording a PBS Red Dwarf marathon to VHS cassette. BitTorrent is just the natural evolution of that.
And that, i guess, is the modern definition of radical :/
I'm not at all an expert on how WordPress themes works. But isn't it just as simple that the theme only call functions in WordPress and that no actual WordPress code have to be copied into the theme? In that case, couldn't you argue that it just happens that the theme work with WordPress?
To put this to its edge. What would happen if someone implemented a different blog engine that just happened to have the same theme API as WordPress but licensed it under the BSD license?
You are talking nonsense here. The Thesis authors admitted to copy & pasting code from a GPL project. There is no grey area here, it's an out and out copyright violation.
Anyone that worries that you can't use GPL software like Gimp to make proprietary images doesn't understand the license. This isn't a problem with the license itself, so much as it's a problem of disinformation spread, knowingly or not, by folks like yourself.
Matt has every right to bang his tiny little fists on the table about license violations and as a user, I can say fuck you and switch.
Don't be a dick Matt. You've earned cred by creating a great blogging platform. Let the themes and plugins be covered under the LGPL!
http://www.allometry.com
So basically it comes down to two words: "derivative work". I used the Google machine on the interwebz and found this explanation on Wikipedia. It's still pretty blurry and you could probably make an argument either way with the information presented in the Wikipedia article.
"A plan fiendishly clever in its intricacies"- Homer Simpson
GPL for the lose, Copyleft is just as bad as copyright in terms of use of force. :(
Anybody else read the headline and start reading the summary as "Matt Mullenweg ... is sticking to his gnus ..." ?
It does work, after all.
Based on the identified thesis, any application that is created where the theme code runs in the same address space as the underlying system and is called by and calls into the core, constitutes a single application and therefore must be GPL'd (if the core is GPL'd).
Based on this logic, any "enhancements" for a system that allows monkey patching (Ruby), or can establish a notification/callback/rendezvous arrangement with the application core (Java, C#, C, C++, etc...) and where the core application can run with or without the enhancement, and the enhancement cannot run without the core, must be GPL'd to be distributed if the application core is GPL'd.
To claim an enhancement must be GPL'd based on whether the core application code does the loading, entry point discovery, and execution of an enhancement as is claimed is wrong.
Based on the arguments put forth in the thesis, I don't see Thesis as an enhancement to the application core just based on how it is loaded and called.
The only viable clause I saw in the entire thesis is that Thesis used significant portions of the GPL'd code from WP.
... themes and plugins that 'extend' WordPress violate the GPL if they are not themselves distributed under the GPL.
Forget GPL for a moment - if it wasn't licensed at all, would a releasing a plugin violate copyright on the thing it's a plugin for?
My gut says "no", which means no infringement, which means no need to consider GPL (or any other license) and WordPress can pound sand. But there is so much stupidity in copyright law that I wonder. Anyone know of any actual case law where a plugin was considered a copyright violation?
That's the way it's been... What has changed, perhaps, is how far the copyright holder is willing to go to enforce the terms of the license.
Templates, modules, plugins, etc for GPL'd CMS and blogs (and similar software) MUST ALSO BE LICENSED UNDER GPL if they meet the license's description of a plugin.. MOST SUCH ADDONS DO.
This doesn't mean one cannot "sell" them, however they must be "sold" WITH GPL license, and the purchaser can do whatever they want with it, including redistribute or resell, so long as the GPL terms are followed. In other words, if you want to "sell" these types of things, don't expect more than ONE sale, as that's all it takes for the product to get out there.
does this make WordPress the new SCO or the new MicroSoft? Because, guess what all you idiots defending this prick, he's making the same BS claims that you attacked those others for. This is no different then MS claiming ownership of any file that Word can read. And no different then SCO claiming that because some code used all the same variables when accessing the same protocol (cause of course it has to). BY the same token everything written in Xcode belongs to Apple and everything written in .NET is property of MS.
100% BS and an outright attack on free software itself.
If I write a piece of code calling functions from a GPL'd work, it could in principle work with any program that implemented the exact same functions. That argument is quite weak as long as the functions are not any form of standard, in the extreme copyright would practically be none for source code. Making a program modular doesn't mean each module is a separate work, even if internally there is a set of functions that make up a theming "API". You can quite clearly write a side story to a book that is derivative without reusing any exact phrase, I'm not sure logically adding a new theme that fits perfectly with the preexisting work would be any different. I don't see it as very clean cut either way.
Live today, because you never know what tomorrow brings
I do not code in PHP, so please bare with me. What I got was that since the PHP interpreter sees it all as the same code, all the same program, then it is a derivative work. "To the PHP parser, it is all one and the same." If a PHP GPL module presents an API and a PHP non-GPL module uses that API and they run in the same PHP interpreter, what happens?
The cancel button is your friend. Do not hesitate to use it.
Just because a few lines of code interact with the same database and APIs, they have to be free? I don't think that is really a good way to look at it.
The owners of Wordpress should have no rights over images, stylesheets, and html code created for themes and plugins. These work wiithout wordpress, and are portable to any platform.
So anything that even calls WordPress APIs gets the GPL touch of death... I understand going after Thesis for copying chunks of GPL code, but all that the WordPress community will get out of this is some bad press for themselves and F/OSS in general.
Twelve fingers or one, its how you play. ~Gattaca (Vincent)
But then don't be angry if people choose to not use GPL, and disparage the GPL for it. You can't say "Love it or leave it," and then cry "but everyone should use the GPL!" If companies have it demonstrated that the GPL can screw them over in unanticipated ways, they very well will stop using it.
WordPress themes are simply PHP libraries that WordPress calls when rendering a page. The license status of Wordpress themes are very much dealt with in finality by the GPL, and there is absolutely no question that the PHP files must be licensed per the GPL.
From the GPL's narrative:
This General Public License does not permit incorporating your program into
proprietary programs. If your program is a subroutine library, you may
consider it more useful to permit linking proprietary applications with the
library. If this is what you want to do, use the GNU Lesser General
Public License instead of this License.
-- $G
GPL is NOT the creator of WordPress!
An addon/plugin/extension/theme will only inherit the GPL if it in any way uses GPL code. If you write some code that uses a published API [document or by observing executing code] and do not view the source code that provides the interface and therefore do not copy ANY GPL'd code how can your code inherit the GPL licence ?
So what free alternatives are there to wordpress? And by free I mean software that doesn't try to take away my freedom to license my own work as see fit.
If He doesn't respect GPL, why should any respect his license...
Is there a way to distribute a plugin without distributing its source code?
Is the php code of the thesis theme somehow "compiled"? Otherwise I don't understand what is this about
PHP developers love the GPL, while Ruby developers love the MIT license. I'll take freedom to do WHATEVER I want with code over "well-meaning" restrictions any day.
Hey, this is a good point.
Putting aside issue of him admitting to using GPL'd code (which clearly makes him fall under GPL rules), how can this apply if he himself is not selling code linked to WP?
He is selling a template, the user is the one who links it into the WP system. If he distributed WP+the template all in one package I think you could say it was linked, but as it stands he is selling stand alone software that won't do anything until it becomes linked into the WP system by the end user.
So technically he's just distributing software he wrote (besides his copying of code) that itself is not linked into any system. Then the user takes that code and links it in. So isn't the end user the one who is GPLing the code (maybe in violation of the template author's policies?)
His arguments are those of a layman, not a lawyer. If you're going to sue you'd better have a lawyer that agrees with you.
Some examples:
* All it really says is that you can do whatever you like but anything built on top of the GPL must be GPL itself. That's the crux of it.
Sorry Matt, but you're wrong. A script can run lots of GPL'd programs yet not be GPL'd.
* Also, the Nintendo case, or whatever, which I think was from the 1980s or 1990s, has nothing to do with GPL.
Sorry again Matt, but they don't have to be about the GPL to be relevant. Those cases have to do with what are and are not derivative works, that's fundamental to the GPL and thus those cases are entirely relevant.
* I think just one way to test it is, you know, take a screenshot of a website running WordPress without Thesis and then take a screenshot of a website running Thesis without WordPress. It would be a blank screen. It wouldn't work. That's just a very simple test.
BFD Matt. You don't WTF you're talking about. That has NOTHING to do with whether the GPL applies or not.
Matt may ultimately prevail in a lawsuit, but his lawyer damned well better make better arguments than Matt is making here.
The whole community is misunderstanding the argument about Linux kernel modules. First off, Mark Jaquith's assertion that Linux doesn't allow non-GPL kernel modules is just plain wrong. In Linus' own emails, he presents several lines of reasoning why he feels binary-only kernel modules don't violate the GPL.
Essentially, the kernel module interface is a "library" interface to the kernel, and kernel modules are considered to be under the GNU Library license. In fact, due to the way kernel modules work, you automatically do it according to the LGPL, so this isn't explicitly stated anywhere, but that's the way you should think about this.
and (what appears to be a separate justification)
The reason I accept binary-only modules at all is that, in many cases, you have, for example, a device driver that is not written for Linux at all, but, for example, works on SCO Unix or other operating systems, and the manufacturer suddenly wakes up and notices that Linux has a larger audience than the other groups. And as a result he wants to port that driver to Linux.
But because that driver was obviously not derived from Linux (it had a life of its own regardless of any Linux development), I didn't feel that I had the moral right to require that it be put under the GPL, so the binary-only module interface allows those kinds of modules to exist and work with Linux.
(though in 2001, he says these modules are mainly historical.)
The kernel tainting feature has partially to do with licensing and partially not.
To clarify the ambiguous legal ground on which non-GPL (particularly proprietary) modules lie. A strict reading of the GPL prohibits loading proprietary modules into the kernel. While Linus has consistently stated that proprietary modules are allowed (i.e. he has granted an explicit exemption), it is not clear that he is able to speak for all developers who have contributed to the Linux kernel. While many think Linus' edict means that all contributed code falls under this exemption granted by Linus, not everyone agrees that this is a legally sound argument. The new EXPORT_SYMBOL_GPL directive makes the licence conditions explicit, and thus removes the legal ambiguity.
But moreover, many kernel developers feel it's a waste of time to support code that interacts in such close quarters with binary-only modules that the kernel devs can't debug. Therefore, tainting serves a technical purpose as well as a legal purpose: letting developers refuse to support strange bugs caused by binary-only modules.
Linus does leave us with a final note, however:
Final note: the Linux interpretation is not a "normal" case. I wouldn't use it as a guide-line to anything else, especially not in user mode.
The final upshot really is that Linus's interpretation is what assures you he won't sue you. You'd need to look at relevant copyright case law to understand what would happen if you were sued about a derivative work such as a WordPress theme. That's a different ballgame entirely, and Linus' interpretations don't apply to that.
In this particular case it sounds like Thesis is screwed because they're incorporating WordPress code into their theme - game over.
In the more general case, I think you could make a credible argument that WordPress is designed to look for and utilize external libraries (called "themes") and that just doing so should not make WordPress' license apply to that theme (or plugin). My reasoning there is that if you argue that WordPress incorporating a theme makes the WP license (GPL) apply to that theme, what prevents that theme's license from correspondingly "infecting" WordPress?
fencepost
just a little off
In a hypothetical situation, someone could rewrite Wordpress under a non-GPL license, and make it support all themes. Irrespective of what Wordpress authors would say about the Wordpress clone itself, any themes used with such a Wordpress clone wouldn't be required to be GPL.
The Wordpress author's dangerously attempting to take away users' freedom to load code from different licenses and run it. Copyright and the GPL only limit distribution of the derived work, not the creation and personal use of the derived work. You're allowed to do anything you want with GPLed code as long as you don't distribute it, since keeping code for yourself isn't covered by copyright law.
Text written here by me is placed in the public domain.
ComicPress is likely to be next on the hitlist then.
Is there any precedent on this in the proprietary-software world? It seems like there must have been some company somewhere that's tried to argue that third-party plugins using their "internal APIs" without permission was illegal. Has anything like that ever gone to court?
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Mark Jaquith wrote an excellent[sic] [one-sided] technical analysis....
He forgot an important point in proving his theory.
If you come up with an exception to the theory it disproves the theory -- no matter how well you think it should be true.
If I design a 'theme creator' that creates themes and has a Wordpress extension that creates wordpress
themes -- does that mean if someone uses my theme creator and creates a theme for wordpress that it is
automatically open sourced? I don't think so.
If I look at the wordpress, and write a spec. Have someone else write a functional equivalent, then we have an editor that can create themes compatible with wordpress that have never touched wordpress.
The fact that this doesn't currently exist, I believe is someone moot -- it proves the point that the code
itself by virtue of being compatible with an "algorithm" - isn't copyrightable. Algorithms are patentable - but the Gnu copyright wouldn't apply.
IF they do not copy the code, but even if they look at the source to design algorithm compatible devices that can function when hooked up to wordpress,
His argument that the code creates changes in wordpress could apply to a C program using Gnu C specific macros.
It makes changes in the compiler and how it will function -- doesn't that mean that the program -- which can't function apart from the Gnu C compiler is now a derivative work?
I think that case is fairly well been decided that it is not.
He even goes so far as to use Linux Kernel modules as an example of things that are covered by the Gnu license -- except for the ones that aren't -- which he didn't mention. The question becomes -- is the wordpress plugin interface 'published', or does one need intimate familiarity with the internals...that might be the deciding issue -- UNTIL, someone such a spec is published OR someone writes a utility that generates compatible themes.
I think wordpress has a low-middle strength legal argument to enforce this and it could really depend on who has the better lawyer -- except for the specific case of the developer who admitted wholesale copying...that's pretty much a slam-dunk.
That all said --- my general feeling is that the plugins/themes really should follow the spirit of wordpress and
be available without charge -- to do otherwise is insulting and a bit of a slap in the face to the wordpress developer, on some level. It's just poor taste, at the very least, even though legally, you might have some leg to stand on if you don't copy code, that is...
I'm NOT convinced that something being compatible "only with X" makes it a "derivative of X" in any legal sense. It would be a redefinition of a derived worked in a legal sense that I'm not aware of any substantial precedence for.
A derivative work pertaining to copyright law, is an expressive creation that includes major, copyright-protected elements of an original, previously created first work. So if the Template includes code from wordpress then it is a derivative work, If the Template does not have any code from wordpress then it is not a derivative. This has been well tested in the street mod automotive industry. If the new fancy street mods are not derivatives then neither is this. I guess this guy would say every article and image posted on a wordpress site are now GPL as well.
I wonder when GPL will be detected as the virus it is by the AV vendors...
Now, allegedly, Thesis lifted sections of code from a GPLed work. This affects things quite substantially, however, there's an argument about fair use here that I'll not get into.
Aside from that, Jaquith is completely wrong.
Indeed Wordpress and Thesis are run as the same unit. That does not make Thesis a derivative work. It makes the work that the user made combining the two of them into a derivative work. Thesis does not derive from Wordpress any more than Wordpress derives from Thesis. The fact that two works interact does not make them derivative. That's not what the word means. The word means "derived from". It does not mean "intended to be used with". Revision notes on books are not derived works even though they directly reference specific parts of a work of fiction.
There is no court precedent on Linux modules. These are typically licensed under the GPL because it's convenient to do so. However, I see no reason why they must be.
As for copying from existing themes - there's a clear fair use argument here. Themes must interact with the copyrighted software. Code for interoperability is often considered to be fair use.
The opinions of Drupal and Joomla are completely worthless. Their knowledge of content management is formidable but they are not legal professionals.
The Thesis code is completely separate from Wordpress. Granted, it is useless without Wordpress. It may well be that it's not legal to use Thesis with Wordpress, but the copyright on the Thesis code is owned by whoever wrote that. They can distribute it as they want. The person combining it with Wordpress code is the one at risk of violating the GPL.
That's what I thought, unfortunately that is not the case, copyright has expanded is some stupid ways, a derivative work is quite expansive and seems to be growing, as that allows more litigation. It also means that Disney, (who is most at fault for the current law) can sue for creating things that are only, substantially, mostly, somewhat, a little more useful with something copyrighted by Disney. (I don't know where in the chain we are currently at, I think we are at substantially or mostly) Software is just caught in the cross fire of Mickey Mouse protection laws.
Work bio at MMWD
His analysis is all about how the code works when someone takes a theme and loads it in WordPress. While accurate on the technical details, it completely misses the point. When someone runs a theme in WordPress, they have caused a derivative work of WordPress to be created. They've also caused a derivative work of the theme to be created. No one seriously questions this. However, the license of WordPress allows this, so there's no problem here.
The important question is whether or not a WordPress theme, AS DISTRIBUTED BY ITS AUTHOR, is a derivative work, and he fails to address this. The answer to that depends on whether or not the theme has incorporated (by copying, transforming, adapting, etc) any copyrightable elements of WordPress.
The particular theme in question did include such elements, and so has a problem. However, in general, you do not appear to have to include any copyrightable Wordpress elements in a theme, and so a theme does not inherently have to be GPL.
The majority of court cases that are relevant to this agree that writing code X to interface to code Y does NOT automatically make X a derivative work of Y. The FSF thinks that merely designing code to link with another piece of code makes the first a derivative work of the other, but there's no court cases that support that view, and better lawyers (such as Larry Rosen) than the FSF uses say that it doesn't automatically make a derivative work.
"Matt has gone so far as to post this on Twitter."
Just, *wow*.
After reading a lot of good points on both sides I tend to agree with you. Thesis is a derivative work, by any reasonable definition, due to the copying and pasting. It does not appear to have a legal leg to stand on. However, that does not settle the question of whether a wholly original WP theme would violate the GPL. It seems to me that this would hinge on the legal definition of a derivative work, which as some have pointed out does vary somewhat from one jurisdiction to another, and, as others have pointed out, could not be definitively settled in either direction without causing chaos, which, as still others have pointed out, seems to call into question many fundamental aspects of copyright "law" itself (which I wholeheartedly do NOT support, but nevertheless try to follow). My advice to authors of WP themes would be to honor the wishes of the WP creators, release the code as GPL, and, if they absolutely insist on trying to keep something proprietary, then license the graphics or something differently.
Nonaggression works!
The difference is WHEN the linking occurs. In PHP and most interpreted languages, the linking occurs at runtime.
So if you distribute Theme unlinked, you can argue the GPL does not apply since it has not yet been linked with GPL code. In fact, you never know if WP changes it's license to NON GPL, or someone creates a WP clone with the same theme APIs which can run the same themes. If this were to happen then it becomes obvious the Theme does not have to be made GPL.
http://wordpress.org/news/2009/07/themes-are-gpl-too/
Yes, I tend to agree. Otherwise a proprietary application running on GNU/linux would have to be GPL'ed as soon as it supplies a callback function to the OS.
It's less of an issue in proprietary world because the latter runs on EULAs, which are "use licenses" - they regulate the terms under which you can use the software, not just distribute it. So long as the EULA itself is legal in a particular jurisdiction, you can, for example, prohibit any plugins under the wrong license from calling your APIs - the person running such a plugin would then be in violation.
GPL only regulates distribution, and its applicability hinges on the applicability of general copyright law to the work in question - if it's not a derived work, then there are no copyright restrictions on it, and GPL is not needed to "ease up" on them under certain conditions. Ultimately, in a case like this, the end user still has some GPL code (WordPress) combined with non-GPL code (template) in a single work on his server, which is then obviously a derived work of the GPL code. But since he is not redistributing it any further, he is not infringing.
GPL = permission to distribute where you would have no permission by default.
We'd like to get a survey of where people stand on this issue, please take our poll: http://disclaiming.org
From the GPL's narrative:
This General Public License does not permit incorporating your program into
proprietary programs. If your program is a subroutine library, you may
consider it more useful to permit linking proprietary applications with the
library. If this is what you want to do, use the GNU Lesser General
Public License instead of this License.
What's that? Some paragraph you found on their web site is NOT part of the license and is completely irrelevant. And as what is said earlier, a license cannot set the legal definition of a derivative work, that's simply not up to them to decide.
But if WordPress calls ("links") to the themes, isn't WordPress then derivative of the themes, and therefore possibly violates the license of the theme? :)
- Raynet --> .
Derivative work has nothing to do with this issue at all, unless the problem is one where someone started with another GPL package, in which case, they would be subject to the GPL as a derivative work.
The language was from the GPL's postscript which would absolutely be used to give the judge guidance on the meaning of the license and intent of the licensor.
-- $G
No. Wordpress themes are simply an add on library that Wordpress calls. Everything else you've said is hypothetical and does not exist in the real world.
In other words, it could be, but it isn't.
-- $G
The statement you quoted is not part of the actual terms and conditions of the license. It is editorial only.
Further, this statement from the actual terms of the license trumps the above statement:
Activities other than copying, distribution and modification are not covered by this License; they are outside its scope.
The end-user is free to do whatever he wants with GPL code - include link it to non-GPL code. Unless that combined work is distributed, the GPL simply does not apply.
It would be completely irrelevant. Intent of the licensor is defined wholly by the license. Otherwise, FSF could write whatever editorial content they want on that site. There is no guarantee that either a) that editorial content was on the web site at the time that the Theme developer developed his Theme, or b) that the Theme developer ever even read that website (since the license itself is distributed with the code).
distributed and used in freedom. Then you either live with it and comply, try to buy a permission (license) to develop a theme outside GPL or simply work on theme where the develepers don't have objections for non-GPL extensions.
Imagine someone giving ice-cream (everyone LOVES ice-cream) for free under the condition, that you give him a photo of yourself eating the ice-cream. If you know that condition, eat the ice-cream and then go rattling something about the right for privacy, you are just a thief, period. If you become aware of such a condition later, you simply cease to eat the free ice-cream and hopefully everyone will be happy, otherwise you are a thief too, period.
You can find people believing GPL is bad -- they are entitled to their opinion, but that doesn't mean, they can live off someone else's work. Nobody forces you to use GPL-ed software, nobody forces you to develop software based on/deriving from GPL-ed code. It's code's author's right to do what he wants with his work. If you want to use it, just play ball and be nice, otherwise f**k off.
And one more thing -- probably the Thesis theme paid for itself, someone calculated over a million $$ in revenue. So don't tell me they have to sell it to live. Thay can surely get enough money for support itself (Red Hat and many others manage to do it).
Certainly. See Sega v Accolade and Galoob v Nintendo. These cases clearly establish that mere linking - and use of internal "methods of operation" in order to provide interoperability are not sufficient to cause a work to be considered derivative.
What you are saying is that the authors of the GPL don't know what it means. Assuming you know more than the author is a very naive, ignorant and silly position most of the time.
Section 10 of the GPL is what you are looking for, which deals with combined works. It's pretty blunt and easy to understand:
If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission.
Apparently WordPress's author didn't quite give permission.
-- $G
The key point that you are missing is that, according to the Copyright Act and applicable copyright case law, no incorporation has taken place. If the authors of the GPL are saying otherwise, then, yes: I'm saying exactly that they don't know what "derivative work" means, as defined by copyright law. Having heard what Matt Mullenweg (and the SFLC) has to say on the matter, I am convinced that his interpretation of "derivative work" is at odds with copyright law.
Mullenweg and the SFLC are wrong to bring up derivative works, unless someone bases their work on another GPL'd theme.
Incorporation is the issue, and here is no practical way to make a WordPress theme that involves not calling the theme's code from within WordPress and incorporating (in both the legal and technical sense) the theme into WordPress.If WP had a theme engine that interpeted or compiled theme files, then incorporation would likely not be an issue.
Sorry, but I just can't see any license other than the GPL being acceptable for WordPress themes.
-- $G
In a legal sense, calling functions is not incorporation.
Here's the difference: merely calling wp_list_comments() is not incorporation, as defined by copyright case law. However, copying from WordPress and pasting into a Theme the actual code that is defined by wp_list_comments() does constitute incorporation.
Calling functions is perfectly acceptable, with respect to copyright. Doing so does not cause the Theme to be derivative of WordPress. Again, see the decisions in Altai, Sega, Sony, and Galoob.
Any actual combination of a WordPress Theme and WordPress is performed not by the Theme developer, but rather by the end-user, at run-time, via the PHP interpreter. It is that combination, and only that combination, that could even possibly be considered a derivative work. Prior to that combination, the Theme itself is in no way whatsoever inherently derivative of WordPress.
There are rather strong arguments that "use licenses" are null and void, on the grounds that the end user has purchased a copy of the software, and has no need to accept a license to gain permission to use what they now own.
Even if the end user accepts the license, since they have a pre-existing legal right to use it, it doesn't bind them as a contract because there is no "consideration" (i.e. quid pro quo) at that point. The user has already paid for the software, and usually to a third party. That completely releases the end user from any sort of contractual obligation regarding what they have purchased.
There are several legal precedents in favor of that conclusion, including United States v. Wise (1977), and Vernor v. Autodesk (2008). Autodesk could not use a license to prohibit someone from reselling a copy of software he had purchased from them. No music publishers with regard to audio CDs, nor book publishers with regard to books. Three cases, however, including Vernor, are currently on appeal to the Ninth Circuit (which made the decision in Wise). See here.
There are rather strong arguments that "use licenses" are null and void, on the grounds that the end user has purchased a copy of the software, and has no need to accept a license to gain permission to use what they now own.
Nonetheless, the standing legal precedent in many states in US is that EULAs (and the whole "licensed and not sold" concept) are legal.
There are several legal precedents in favor of that conclusion
Yes, and there are several against it. This gives a broader picture.
To conclude, at present, the legal waters on this are murky, and most commercial enterprises prefer to err on the safe side of this and treat "use licenses" as legal.
But the hypothetical proves that the theme is NOT linked with Wordpress code when it is distributed. The linking is performed by the end user when he "adds" it to his Wordpress system.
You do not understand how WordPress and WP themes work. They are not standalone applications that "call" WordPress.
The Theme is loaded by WordPress. The theme is completely dependent on Wordpress and cannot function without a working copy of Wordpress.
Based on that, I'd say the derivative work argument has some merit, but less than an argument based on incorporation.
All you do when you split hairs like this is go from violating the license to willfully violating the license and showing your intent is to skirt the agreement. None of which will endear you to juries, judges or copyright holders. After all, it's the opinion of the copyright holder that will land you in court, and the opinion of the jury that will determine facts, and the opinion of the judge that will limit your ability to advance your case.
Also, your suggestion that it's ok to sell a product that cannot be used by the buyer without breaking a license agreement is a bad idea.
Finally, it's probably bad business to piss off an open source community over the terms of the license that lets the community exist to begin with. EVEN if you are within your rights to do so.
-- $G
You do not understand how WordPress and WP themes work.
I understand exactly how WordPress and its Themes (and plugins) work. I've been running self-hosted WP for five years, and have been working with Themes for pretty much that entire time. I also have a handful of plugins that I have developed and/or forked.
They are not standalone applications that "call" WordPress.
The Theme is loaded by WordPress. The theme is completely dependent on Wordpress and cannot function without a working copy of Wordpress.
Based on that, I'd say the derivative work argument has some merit, but less than an argument based on incorporation.
By contrast, you don't seem to understand how copyright law defines "derivative work", which has absolutely nothing at all to do with degree of dependence upon a protected work. Again: see the Game Genie in Galoob v Nintendo or Sega Genesis-specific video games in Sega v Accolade. Incorporation is not a consideration, it is the only consideration.
All you do when you split hairs like this is go from violating the license to willfully violating the license and showing your intent is to skirt the agreement.
What agreement? Unless a work is derivative of WordPress, it is entirely unaffected by WordPress' GPL. A developer who makes his own original work (a Theme) has made no "agreement" with WordPress, and has done nothing in violation of WordPress' license.
None of which will endear you to juries, judges or copyright holders. After all, it's the opinion of the copyright holder that will land you in court, and the opinion of the jury that will determine facts, and the opinion of the judge that will limit your ability to advance your case.
I have yet to see anyone cite even a single court case that refutes my position. I've cited five that set the precedent: Brown Bag, Altai, Sega, Galoob, and Sony.
Also, your suggestion that it's ok to sell a product that cannot be used by the buyer without breaking a license agreement is a bad idea.
Now you're just putting words in my mouth. Where did I ever say any such thing? By the way: end-use (anything not involving distribution) is expressly stated by the GPL itself as being outside its scope. So, there is no such thing as non-distribution use that "breaks" the GPL.
Finally, it's probably bad business to piss off an open source community over the terms of the license that lets the community exist to begin with. EVEN if you are within your rights to do so.
On this point, I certainly agree. Look, I release under GPL everything WordPress-related that I develop. I do so because I appreciate what a great product WordPress is, and I appreciate the help others have given me in helping me use it. I consider any minimal contribution I can make with respect to Themes or Plugins to be the least I can do to give back to the community.
I also think that the WordPress community should be free to promote and encourage100% GPL third-party extensions (especially in the Plugin and Theme repositories).
I just don't think that such encouragement should claim legal backing for such a position, where no such backing exists.
Spouting off cases as if they might be precedent, or represent the law of the land in a contract dispute should be left to attorneys arguing before judges. Someone may read your poorly thought out and dangerous legal opinion and act on it with dire and expensive consequences in the future.
Here's why you are completely and utterly wrong to base your theory on your trinity of copyright cases:
Gallob v. Nintendo - This case legalized the Game Genie. It would be tough to explain how a game genie works just like a word press theme, mainly because what amounts to an idiot proofed hardware debugger isn't the same thing as blogging software.
Brown Bag - I'm assuming you are talking about the look and feel lawsuit and not the adult toy lawsuit. This case was about the Brown Bag feeling that their GUI was similar to a Symantec product (I seem to recall it was outlining software). The GUIs were so different that the judge looked at the screens of both and immediately (as in pre-trial summary judgment motion) ruled in the defendant's favor.
Computer Associates v. Altai is a case about employee misappropriation of code where somoene left CA and went to Altai, and took a program with them. By the time CA sued, Altai had re-written the sofware and removed all CA code. The court ruled that the current version Altai's product did not infringe and that CA had sued the wrong party for the initial version - Altai was not liable (because the infringement was long gone in the porduct), but the former CA employee who stole the code might be (the employee was never sued - probably blood from a stone).
I would probably fire an attorney that tried to convince me to use the set of irrelevant cases that you are citing as precedent. More than likely you would end up losing on pretrial motions because these cases are simply not relevant, and the judge would see that the plaintiff is simply trying to bamboozle the court. It would be embarrassing, expensive and probably waste a lot of everyone's time.
Now on to your use of language to advocate your position. You say the words "derivative work" and "incorporation" mean something very specific in copyright law. They do. But courts are not restricted to using only Black's to understand the English language. At the end of the day, though, one of the legal (meaning from the law dictionary) definitions of "incorporation" seems to fit the context of the GPL perfectly:
"To cause to merge or combine together into a united whole."
Which perfectly describes the combination of a WordPress theme with WordPress itself.
The GPL is one of the best thought out license agreements out there. It does what it's supposed to do. It's been around for a long time and has generally held up when litigated. The fact that it is not often litigated speaks volumes: it's unwise to litigate against such a clear contract that so clearly expresses the author's willingness to share, so long as you share, too. // Enjoyed the spirited discussion.
-- $G
Spouting off cases as if they might be precedent, or represent the law of the land in a contract dispute should be left to attorneys arguing before judges. Someone may read your poorly thought out and dangerous legal opinion and act on it with dire and expensive consequences in the future.
"Poorly thought out and dangerous legal opinion"? Are you referring to my comments in this thread, or in my original blog post in which I explained my reasoning?
Here's why you are completely and utterly wrong to base your theory on your trinity of copyright cases:
Not three, but five. You left out Sega and Sony.
Gallob v. Nintendo - This case legalized the Game Genie. It would be tough to explain how a game genie works just like a word press theme, mainly because what amounts to an idiot proofed hardware debugger isn't the same thing as blogging software.
One doesn't need to explain how the Game Genie "works just like a [WordPress] theme". That's not the point of the reference. Rather, the point of the reference (and the reason the ruling is germane) is that the court ruled that that Game Genie, which is wholly dependent upon the Nintendo-copyrighted Nintendo gaming console, was not a derivative work of that system. One of the main points of Galoob is that dependent does not equal derivative.
Brown Bag - I'm assuming you are talking about the look and feel lawsuit and not the adult toy lawsuit. This case was about the Brown Bag feeling that their GUI was similar to a Symantec product (I seem to recall it was outlining software). The GUIs were so different that the judge looked at the screens of both and immediately (as in pre-trial summary judgment motion) ruled in the defendant's favor.
Brown Bag is germane in that it moves legal precedent away from the previous tendency of broad-construction determination of "derivative work", culminating in Whelan, toward a much narrower construction. Where Whelan considered the overall purpose of a computer program, Brown Bag set the precedent for digging much deeper. Essentially, the abstraction level changed with Brown Bag. Quoting from myself: Brown Bag appears to indicate that an analytical dissection of WordPress and a WordPress Theme would have to result in some tangible similarity of copyrightable content. This dissection is further clarified and defined in subsequent court rulings. (Which brings us to Altai.)
Computer Associates v. Altai is a case about employee misappropriation of code where somoene left CA and went to Altai, and took a program with them. By the time CA sued, Altai had re-written the sofware and removed all CA code. The court ruled that the current version Altai's product did not infringe and that CA had sued the wrong party for the initial version - Altai was not liable (because the infringement was long gone in the porduct), but the former CA employee who stole the code might be (the employee was never sued - probably blood from a stone).
Altai is germane, because its process for determination of derivative-work copyright infringement has been used in essentially every subsequent software copyright infringement case. No court since the Altai ruling has used a Whelan-type construction. Again quoting from myself: Altai has become the controlling precedent in defining the method for determining whether one computer program infringes another’s copyright, superseding the precedent set by Whelan. The Altai court established the Abstraction-Filtration-Comparison test, which analyzes increasingly lower levels of abstraction, filters out non-copyrightable code, and then performs a comparison of what remains. With respect t
Well, I guess we'll agree to disagree.
One day this will get litigated and we'll get to see what really ends up happening.
-- $G