Wordpress, Thesis and the GPL Smackdown

Chris and Matt head to head

[ergophobe]

So a dog fight has broken out in the Wordpress community, if you haven't noticed.

Matt Mullenweg, after review by various legal experts, is sticking to his guns that themes and plugins that "extend" Wordpress violates the GPL if they are not themselves distributed under the GPL. Matt has gone so far as to post this on Twitter:

Just to reiterate, if anyone wants to try a premium GPL #thesiswp alternative I'll buy them a copy. [ma.tt...] Please RT

-- source: [twitter.com...]

To which Chris responds

Hey @photomatt, I'm no lawyer, and I never said anything about my understanding of the GPL. All I said is that it does not apply to me.

So Andrew Warner got them together for a face-to-face debate.

Matt's position: the license is clear and if you want to extend WP, you have to abide by that license, and premium themes are covered by that rule. Other premium theme authors like Brian Gardner have gone GPL and Thesis should too.

Chris's position: Thesis is not an extension or derivative of Wordpress and therefore doesn't need to abide by the GPL


Choice quote

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.

Full interview:
[mixergy.com...]

[ergophobe]

PS... I suppose these would be the relevant sections of the GPLv2

The "Program", below, refers to any such program or work, and 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.

If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works.

[incrediBILL]

There's an easier way to test it.

Show Thesis working on a website without WordPress.

Oh, you can't?

Thesis requires WordPress?

OK, then it's derivative and requires GPL.

END

[phranque]

http://codex.wordpress.org/GPL [codex.wordpress.org]:

The "Program", below, refers to any such program or work, and 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.
...
Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope.

unless thesis is distribute with a copy of wordpress and/or unless thesis contains wordpress source code or a modified version of wordpress source code, then matt is dead wrong and GPL does not apply.
case closed, end of story.

Matt's position: the license is clear and if you want to extend WP...

nowhere in that license are extensions addressed - plugins, themes or otherwise.

[phranque]

one more thing:
Incredibill is usually but not always right! [webmasterworld.com]
=8)

[lammert]

Not being a GPL expert, but as far as my interpretation goes, this is one of the reasons the LGPL license was invented. The Lesser GPL license is for situations where a piece of software is used in another piece of software, but without the requirement that that new software needs to be published under the GPL. LGPL is mainly used for libraries and other back-end software. The LGPL license allows other software to use these libraries and back-ends without the viral rule that the same license should be applied to the front-end application.

In my opinion, WordPress can be seen as a code library/back-end which--if removed from the Thesis theme--makes the Thesis theme worthless. The function of the WordPress code base is therefore that it is a crucial library for the functioning of Thesis, and Thesis should be released under the GPL.

The only exception is when WordPress would have been LGPL licensed, but that isn't the case.

[phranque]

despite the apparently absolute statements from the GPL i quoted above, the Frequently Asked Questions about the GNU Licenses [gnu.org] page from FSF's GNU project site is about as clear as mud:

If I distribute GPL'd software for a fee, am I required to also make it available to the public without a charge?:
http://www.gnu.org/licenses/gpl-faq.html#DoesTheGPLRequireAvailabilityToPublic [gnu.org]
(i don't think wORDpRESS is distributed with Thesis, in which case this would only apply to Thesis should it eventually be GPL'ed.)


I am writing a website maintenance system (called a "content management system" by some), or some other application which generates web pages from templates. What license should I use for those templates?:
http://www.gnu.org/licenses/gpl-faq.html#WMS [gnu.org]

If a program released under the GPL uses plug-ins, what are the requirements for the licenses of a plug-in?:
http://www.gnu.org/licenses/gpl-faq.html#GPLAndPlugins [gnu.org]

given the above sections, is Thesis a set of templates or a plug-in?
i would assume a theme is somewhere in between which puts it on the borderline between the two borderline cases mentioned in the FAQ.
i don't know enough about how the thesis theme specifically interacts with wordpress to understand exactly how these apply.


note that the FAQ do not refer to the relevant parts of the actual GPL text.
it's a set of interpretations that read more like "oh, yeah we forgot to include this language in the license, so..."

aka, all source should be freely distributed and when in doubt, you must freely distribute all source.

[lorax]

Thesis is a cross between a theme and a tool set. It allows you to add functionality to a WordPress site. It comes with default settings and functionality that control how it looks - somewhat - but if you want to take advantage of the power of Thesis then you write your own code.

[michael webster]

Won't this pretty much kill the paid WP plugin industry? Why would I create and charge for something, that someone could then turn around and distribute for free? I might have exactly one customer.

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

[CritterNYC]

I am not a lawyer, but have done a lot of open source work. The parts of the theme that would be a plugin and directly interface with WordPress (ie, API calls back and forth, data sharing back and forth) would appear to be covered by the GPL and should be GPLed.

However, any images and CSS files do *NOT* need to be GPLed. These do not interact directly with WordPress other than being referred to in HTML, so they're basically combined in the browser.

You can have open source code that opens up and displays closed source / copyright-protected images without any issue of GPL virality.

[ergophobe]

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.

[Hope_Fowl]

If the theme began with code from a GPL'ed theme or a GPL'ed theme template, then the resulting theme is a derivative of GPL code and is under the GPL.

If you start from documentation of the interface to Wordpress and create files with new code, then the GPL does not apply unless you copied GPL'ed code from the documentation.

[koen]

Would creating software from a GPL'ed programming language be the same case?

[ergophobe]

If you start from documentation of the interface to Wordpress and create files with new code, then the GPL does not apply unless you copied GPL'ed code from the documentation.

Actually, that's the question under debate. That is not the position of the Free Software Foundation, Gnu or the people at Wordpress. Quite simply, if your code doesn't run without the GPL application it depends on, it must be GPL. See the stuff I quoted above.

So Thesis definitely fails the one test (it did copy GPLed code) and it fails the second test (it won't run without Wordpress), but the second test has yet to have a definitive decision in a court of law, so precedent is still lacking.

Koen, I think it does and it speaks to the previous post too. If Wordpress folks had wanted people to be able to create themes and plugins not under the GPL, they would have chosen a license more like the PHP or BSD license.

This has been handled in a variety of ways.

The GPL itself has a GCC Runtime Exception
[gnu.org...]

Java uses the LGPL, which basically is designed for exactly the situation you describe.
[gnu.org...]

Meanwhile, as of version 4, PHP gave up dual licensing and trying to maintain GPL compatibiity and now use the PHP License

The PHP license is a BSD-style license which does not have the "copyleft" restrictions associated with GPL.

Q. Why is PHP 4 not dual-licensed under the GNU General Public License (GPL) like PHP 3 was?

A. GPL enforces many restrictions on what can and cannot be done with the licensed code. The PHP developers decided to release PHP under a much more loose license (Apache-style), to help PHP become as popular as possible.

src: [php.net...]

[edited by: ergophobe at 9:20 pm (utc) on Oct 1, 2010]

[jkovar]

Did they refer to Wordpress API documentation while writing said theme ?

If the answer is yes, it's an extension and subject to the parent applications license. If the answer is no, I'll call you a liar.

[AhmedF]

Good ol' Matt, never happy with anyone else making a dime off of WP.

[physics]

ergophobe, this link you pointed out [wordpress.org...] is key.
The guys at FSF know what they're talking about!

The PHP elements, taken together, are clearly derivative of WordPress code. 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 conclusion, the WordPress themes supplied contain elements that are derivative of WordPress’s copyrighted code. These themes, being collections of distinct works (images, CSS files, PHP files), need not be GPL-licensed as a whole. Rather, the PHP files are subject to the requirements of the GPL while the images and CSS are not. Third-party developers of such themes may apply restrictive copyrights to these elements if they wish.

I'm sorry but if you based your whole business on extending and distributing GPL'd software and you didn't understand the GPL, that's your fault. You took a risk and the free software community will defend it's work from all enemies, foreign and domestic. A lot of times, when these things come up, people who have never heard of the GPL before get a really negative impression of the GPL - like it's some kind of virus that wants to destroy this nice programmer's ability to make money on their work. That's not at all the case - the onus was on the makers of Thesis to determine if what they were doing was compliant with the license of the software they wanted to extend.

That said I don't see why the guys at Thesis couldn't make plenty of money while embracing the GPL. They are not required to distribute the software for free. They are not required to make their CSS and images free. They can still charge for distribution, documentation, and support, but the code must be open and people must be allowed to extend it. Red Hat has made piles of cash this way for example.

[edited by: physics at 12:03 am (utc) on Jul 22, 2010]

[physics]

Commercially Supported GPL Wordpress Themes [wordpress.org...]

[physics]

Hey @photomatt, I'm no lawyer, and I never said anything about my understanding of the GPL. All I said is that it does not apply to me.

This is like stealing the source code for Windows 7, adding a few features, packaging it up, selling it and then telling Microsoft to shove it because their copyrights "don't apply to me". Good luck with that one.

[ergophobe]

Good ol' Matt, never happy with anyone else making a dime off of WP.

You could say the same thing of Jonas Salk who patented the polio vaccine precisely to protect the vaccine and keep unscrupulous people from taking advantage. If you have something that you want to remain free and protect the integrity of the system, you have to have a license of some sort. If it gets released into the public domain, you lose control.

But Salk did not prevent people from making money off the polio vaccine, as long as they did so within the terms of the licensing agreement. Similar here. Matt is perfectly happy with people making money off Wordpress, as long as they observe the conditions of the license.

And actually, Matt never had any real choice in this. Wordpress is a fork of b2/cafelog, which was licensed under the GPL as of May 2002.
[cafelog.com...]

[weeks]

You could say the same thing of Jonas Salk who patented the polio vaccine precisely to protect the vaccine and keep unscrupulous people from taking advantage. If you have something that you want to remain free and protect the integrity of the system, you have to have a license of some sort. If it gets released into the public domain, you lose control.

Right. And if you don't defend those rights, you'll lose them. The Salk example is a good one, another story, a sad one, that makes the point is how Bill Watterson, the creator of the cartoon strip Calvin and Hobbes, saw his creations move into the marketplace, sometimes tastelessly, because he refused to license anything. Everything you see with Calvin and/or Hobbes on it is bootleg. He lost control.

[ergophobe]

Why would I create and charge for something, that someone could then turn around and distribute for free?

Incidentally, this question could be asked the other way around. Why would I go to all the trouble to create something that is free and open if someone can just come along and start charging for it?

By the way, I don't mean that rhetorically. I think both of those questions, mine and the one I quoted, are completely valid and legitimate questions and they could have various valid and legitimate answers for different people.

[phranque]

I'm sorry but if you based your whole business on extending and distributing GPL'd software and you didn't understand the GPL, that's your fault.

WERD!

They can still charge for distribution, documentation, and support, but the code must be open and people must be allowed to extend it.

these aren't the issue in this case - the issue is that code under GPL must also be freely distributable.

Why would I go to all the trouble to create something that is free and open if someone can just come along and start charging for it?

also not the issue here - as far as i know thesis doesn't charge for vanilla wordpress nor do they even distribute it.

well, except for the part they appear to have copied, pasted and modified...

[Sgt_Kickaxe]

My city owns its roads and allows us all to drive on them for free, thus all cars must be free to be allowed to drive on them!

Silliness aside, I can think of dozens of applications being run in wordpress that, although they do "hook" into wordpress sites, the code is entirely separate from wordpress itself and could be run on ANY site. Themes are also essentially php code that could easily do the same. THEREFORE, as per GPL terms, since they are stored in a SEPARATE forlder they can be sold for profit. End of story(and i've yet to see a plugin or template NOT in its own folder).

I think someone needs to stop counting the dollars they WISH they could have earned from wordpress by charging for the product from day 1 because it took an army of people to make it successful.

Matt should worry about angering that army of people instead. Didn't Matt remove any theme that had the a "sponsored by" section from his official wordpress directory back in 2007? Matt, Wordpress isn't yours, that boat has sailed. You can start charging for 3.0 but I can give it away for free or you could start chargine for 3.1 when you (and an army) build it but someone else could release "wordpress extreme 1.0" using their own upgrades(for free!). 200 million website owners have distribution rights.

The bottom line - anyone can make a wordpress compatible theme or plugin and distribute it on their own websites because, as GPL is inherently, it's free for everyone. I just don't see ANY good coming from annoying people. Wordpress succeeded by letting people mold it into what they wanted and will continue to succeed if left UNRULED BY AN IRON FIST.

Get your wordpress compatible themes here! They're free but I charge a $20.00 download fee! see what I mean ?

[AhmedF]

You could say the same thing of Jonas Salk who patented the polio vaccine precisely to protect the vaccine and keep unscrupulous people from taking advantage. If you have something that you want to remain free and protect the integrity of the system, you have to have a license of some sort. If it gets released into the public domain, you lose control.

But Salk did not prevent people from making money off the polio vaccine, as long as they did so within the terms of the licensing agreement. Similar here. Matt is perfectly happy with people making money off Wordpress, as long as they observe the conditions of the license.

And actually, Matt never had any real choice in this. Wordpress is a fork of b2/cafelog, which was licensed under the GPL as of May 2002.

You are looking at this from a singular incident. Be it other pinging sites, 'sponsored' themes, etc, Matt has always picked a fight with anyone else making money off of WP.

[ergophobe]

SK

Bad analogy. GPL doesn't mean public domain and it doesn't forcibly imply free as in beer, only free as in speech.

Better analogy. Since the state licenses you as a driver and since they (meaning we of course) own the roads, they can dictate how you use those roads. The Thesis position is more like telling the state trooper who pulled you over "Well, I understand that a driver's license requires me to observe certain rules of the road, but since I don't believe the state has a legal right to require me to have a license, I choose to ignore those traffic laws."

End of story

Not according to the FSF lawyers. Their position is that if an app won't run without the other app, it's covered under the GPL.

So yes, some apps interface with WP through public standards like RSS. Those apps are not required to be GPL. But a plugin doesn't run without WP and therefore must be GPL. End of story.

Question: can I hotlink to your site and show your images on my site? Why not? I'm not actually distributing your site, I'm just "hooking" into it.

Didn't Matt remove any theme that had the a "sponsored by" section

After tons of complaining from the community, yes.

Matt, Wordpress isn't yours

Actually, Matt agrees with that. Wordpress belongs to the Wordpress copyright holders [codex.wordpress.org], of which Matt is one.

Curiously absent from that list, by the way, is Chris Pearson who describes himself as one of the three most important people in the history of Wordpress.

Matt tends to be the highest profile spokesman for the core WP community, but the core developers agree with him such as...

- Dougal Campbell, who is the third "most important person" (before or after Pearson) agrees with Matt [dougal.gunters.org].
- Ryan Boren agress too [ryan.boren.me].
- And so does Mark Jaquith [markjaquith.wordpress.com]
- And Donncha O Caoimh is at least a big fan of the GPL [shankerbakshi.com].

Also, this is in keeping with other GPL'd CMS.
Drupal

7: If I write a module or theme, do I have to license it under the GPL?

Yes. Drupal modules and themes are a derivative work of Drupal.

src:http://drupal.org/licensing/faq/

Joomla

Can I release an extension under a non-GPL licence?
It is our opinion that most extensions are derivative works of Joomla! and must be licensed under the GNU GPL….

How does the treatment of templates differ from the treatment of components, modules, and plugins?
In our opinion, templates are composite packages that consist of both code elements and non-code elements. We believe that the code elements of a template must be licensed under the GNU GPL because they are derivative works. However, the non-code elements are just data acted upon by the software and may be licensed in any way the author sees fit. The non-code elements include elements like Images, Movies, Animations, CSS and formatting markup.

src: [opensourcematters.org...]

In the Linux world it is generally considered that programs running on Linux don't need to be GPL, but LKMs do.

The whole reason Apache doesn't use the GPL is to avoid this.
This is the very issue that causes Apache to have their own license:

We avoid GPLv3 software because merely linking to it is considered by the GPLv3 authors to create a derivative work.

src: [apache.org...]

[physics]

If you don't like the GPL, just don't use or develop software that extends GPL'd software.
Deciding that you don't like it and thus don't have to follow it's rules is not a solution. The people who wrote the original software have the right to apply whatever copyright they want.
If you don't like it, write your own blog software and your own license.

[physics]

For more on the 'spirit' of the GPL read Free Software, Free Society [shop.fsf.org...] (free PDF version available).

[physics]

Silliness aside, I can think of dozens of applications being run in wordpress that, although they do "hook" into wordpress sites, the code is entirely separate from wordpress itself and could be run on ANY site. Themes are also essentially php code that could easily do the same. THEREFORE, as per GPL terms, since they are stored in a SEPARATE forlder they can be sold for profit. End of story(and i've yet to see a plugin or template NOT in its own folder).

Sct_Kickaxe, the folder they're in isn't the issue. If that were the case it'd be all too easy to circumvent the GPL whenever you wanted. It's the fact that the way themes work in Wordpress means the code is all mingled up in memory:

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.

Nevermind the fact that the authors of thesis flat out stole whole swaths of code apparently.

Note that the FSF lawyers _do_ say that it's likely _possible_ to write a Wordpress theme that is not GPL. Just as I imagine that it's possible to write a plugin or whatever that's not GPL. But you have to have a good understanding of the GPL first.

[ergophobe]

>>it's likely _possible_

The Joomla people say this explicitly, but they say that it would be quite hard and if you plan to do this, you should have a really good intellectual property lawyer vet your final product.