ergophobe - 4:05 pm on Jul 21, 2010 (gmt 0)

given the above sections, is Thesis a set of templates or a plug-in?

At least the Wordpress people always contend that Themes are not templates, but are a set of hooks and function calls that generate a page. Again, for the courts to decide.

Before getting into arguments about derivative works and all that, though, let's just look at this comment text from Thesis:

* This function is mostly copy pasta from WP (wp-includes/media.php), * but with minor alteration to play more nicely with our styling.

src: [andrewnacin.com...]

Sorry, you can't copy and paste from a GPL work and not have your work covered under the GPL. Case closed.

But the issue has expanded more to the issues raised by CritterNYC, which is basically the stance of the Wordpress people.

See the analysis by the people from the Free Software Foundation as requested by Wordpress
src: [wordpress.org...]

In short: You can still sell a theme - all the CSS, Javascript, images, Photoshop layered files are copywriteable and WP does not dispute that. You can also offer free versions (just the PHP framework) and paid versions (all the Javascript, CSS and images).


This fight is really only over whether the PHP parts can be distributed without observing the GPL.

However, case law is not settled on the issue because the big cases have not gone to court. They have ended with the parties agreeing to certain terms to maintain compliance with the GPL (the MySQL/Nusphere and Free Software Foundation/Cisco cases). So the law is effectively untested.

According to a FAQ at gnu.org

However, in many cases you can distribute the GPL-covered software alongside your proprietary system. To do this validly, you must make sure that the free and non-free programs communicate at arms length, that they are not combined in a way that would make them effectively a single program. The difference between this and “incorporating” the GPL-covered software is partly a matter of substance and partly form. The substantive part is this: if the two programs are combined so that they become effectively two parts of one program, then you can't treat them as two separate programs. So the GPL has to cover the whole thing.

src: [gnu.org...]

That, of course, is an interpretation of the license and not the license itself, but the FSF has been examining the legality of this for quite some time now (as Matt Mullenweg says, as long as he has been alive and much longer than Wordpress or Thesis has been "alive").

To me, if that interpretation as outlined by Gnu can be defended in court, Pearson is screwed again, even if he vets his code for the parts that he has copied from Wordpress itself or other GPL themes. I imagine Wordpress wants to push the larger issue rather than the simply copyright violation issue because it's more fundamental.

Why won't every user of thesis simply provide it for free on their website?

This really isn't the issue at hand. If I choose to write an Apache module or a Linux module, I know that I will have to distribute it under the GPL. Why would I do this? Many reasons, but if I do not want to do it, it behooves me to develop my module for some other system in some other way.

In other words, the only question that matters is whether DIY Themes is in compliance or not. Whether or not they will lose revenue isn't an issue. And for that matter, whether or not this is good or bad for the Wordpress community isn't an issue. Matt Mullenweg chose to make Wordpress GPL and that was his prerogative and it's his prerogative to defend that license.

The only question is whether or not it actually does apply in this case.

But in any case, I can distribute Thesis right now. It's only the licensing that stops me from doing it. An argument could be made that if indeed Chris is out of compliance with the GPL, Thesis is already GPL by the terms of the license Chris has agreed to. So I can treat it as GPL. At that point, it's up to Chris to come after me in court.

Also, there's nothing to stop Chris Pearson from charging for the use of GPL software

The licensee is allowed to charge a fee for this service, or do this free of charge. This latter point distinguishes the GPL from software licenses that prohibit commercial redistribution. The FSF argues that free software should not place restrictions on commercial use,[29] and the GPL explicitly states that GPL works may be sold at any price.

src: [en.wikipedia.org...]

This is about what intellectual property rights Chris can claim and protect down the road.

Brian Gardner has moved the Genesis framework to GPL and he still charges and Tweeted that business is actually up since the change. Actually, he says somewhere (source? his blog I think) that when he mostly had the market cornered with his Revolution 2 theme distributed as proprietary, he was making less money than he is now with a tiny portion of the market and Genesis as GPL.