I just want to point out that, if there are any "pricks" in the WordPress/Theme derivative work debate, Mark Jaquith isn't one of them.
I believe he misunderstands the Copyright Act applicable copyright case law, but he - of anyone - is the most willing to discuss the matter respectfully.
The "nature of PHP" is entirely irrelevant. With respect to the Copyright Act and relevant case law, the only germane question is whether or not a Theme incorporates copyrightable code from WordPress core.
That a Theme is dependent upon WordPress (and technically, it's not. Someone could write an underlying application that defines the same function calls and hooks) does not render it derivative of WordPress. It doesn't matter how the two interoperate or link. The only thing that matters is whether or not a Theme incorporates copyrightable WordPress core code.
And, as the previous commenter pointed out: any WordPress/Theme combination happens at run time, *by the end user*.
No WordPress theme *requires* WordPress core code in order to function. Rather, Themes require only function calls and filter/action hooks, which constitute non-copyrightable methods of operation per applicable copyright case law.
The keys here are:
1) Under the Act and applicable case law, *dependent* != *derivative*.
2) Mere function calls do not constitute incorporation of core WordPress code.
The GPL doesn't define "derivative work", nor does the FSF's GPL FAQ; only the Copyright Act does. If the GPL's interpretation of "derivative work" differs from that of the language of the Copyright Act, or of applicable case law, then the GPL's interpretation will not withstand a court challenge.
And in fact, the interpretation of FSF/SFLC/Matt Mullenweg/et al that WordPress Themes are inherently derivative of WordPress core, and therefore inherit GPL, runs exactly opposite to relevant copyright case law.
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I just want to point out that, if there are any "pricks" in the WordPress/Theme derivative work debate, Mark Jaquith isn't one of them. I believe he misunderstands the Copyright Act applicable copyright case law, but he - of anyone - is the most willing to discuss the matter respectfully.
The "nature of PHP" is entirely irrelevant. With respect to the Copyright Act and relevant case law, the only germane question is whether or not a Theme incorporates copyrightable code from WordPress core. That a Theme is dependent upon WordPress (and technically, it's not. Someone could write an underlying application that defines the same function calls and hooks) does not render it derivative of WordPress. It doesn't matter how the two interoperate or link. The only thing that matters is whether or not a Theme incorporates copyrightable WordPress core code. And, as the previous commenter pointed out: any WordPress/Theme combination happens at run time, *by the end user*.
No WordPress theme *requires* WordPress core code in order to function. Rather, Themes require only function calls and filter/action hooks, which constitute non-copyrightable methods of operation per applicable copyright case law. The keys here are: 1) Under the Act and applicable case law, *dependent* != *derivative*. 2) Mere function calls do not constitute incorporation of core WordPress code.
The GPL doesn't define "derivative work", nor does the FSF's GPL FAQ; only the Copyright Act does. If the GPL's interpretation of "derivative work" differs from that of the language of the Copyright Act, or of applicable case law, then the GPL's interpretation will not withstand a court challenge. And in fact, the interpretation of FSF/SFLC/Matt Mullenweg/et al that WordPress Themes are inherently derivative of WordPress core, and therefore inherit GPL, runs exactly opposite to relevant copyright case law.