Just to be clear, this article is about why a wordpress theme maker is not allowed to participate at a wordpress conference because they are (through a proxy site ThemeForest) selling their themes with licensing that wordpress doesn't like.
The main issue for the author is that they do not have control over the license used when selling on ThemeForest, and not selling on ThemeForest is not a viable option for them as sales through that platform account for most of their monthly income.
The author states:
"""The only license available to authors on ThemeForest is a split license[0]. The PHP in our themes is covered under the GPL, but the images, CSS, and JavaScript are not. There’s nothing wrong with this, and I also have no problem with this; But it doesn’t meet those guidelines for WordCamps that I mentioned earlier."""
So users of the THemeForest platform are unable to license their themes in any way they wish, but must split license their themes. Wordpress has a problem with this, hence the hard line being drawn.
Not sure what the resolution might be, but I think ThemeForest should allow fully GPL themes if authors so desire. Maybe there are implications to this I am not aware of?
There's an explanation transcribed in the post from a podcast:
So the idea behind the split license is to protect authors in terms of their designs and things like that. The parts that have to be GPL are GPL, the parts that don’t have to be, we’re happy to provide that license to help you protect them. The other thing is that on the [Envato] marketplaces there are smaller component style items, so you could buy the extended license on the marketplace, and use that in your WordPress theme. And if you then make your WordPress theme 100% GPL, you just disregarded the license of the item you put into the theme.
So it seems like they specifically discourage bypassing the split license.
ThemeForest require themes sold there to use the split licence. It's a requirement to sell on the marketplace. It's part of the agreement. That seems pretty standard, you get the power of the marketplace, they get to dictate the content they sell, including usage. As mentioned in the transcript, ThemeForest customers can by different usage rights, a system which may be undermined by authors including whatever licensing they want.
Maybe you disagree with it/don't like the split licence/feel you should have a choice/whatever, you've got the choice to not distribute via ThemeForest.
But it seems incredibly disingenuous and sort of shady to enter into an agreement which explicitly limits the licence, and then try go behind your partners back and tell the customer to disregard that licence for your own.
If you're also selling on your own site directly, and setting your own licence, sure those sales can be licenced however the author wants. But it still leaves the fact that files sold on ThemeForest should be provided as dictated by ThemeForest, licence and all.
Have you ever submitted a theme to ThemeForest? They require you to place the two licenses in your submission and will reject your submission if they're missing or altered.
Author certainly can do whatever they want; Themeforest will just reject the submission until the author does what they want.
No, I have never submitted anything there. But it makes little difference: You can say whatever you want on your website, and give any license you like.
They have no say in the matter - they aren't getting an exclusive license after all. The author is free to provide a second license to anyone they like.
That is true, sort of. If you don't sell exclusively on Themeforest, the payout rate is approximately half what it would be otherwise. Its a very similar rock-and-hard-place situation that this article is about. You're throwing away significant revenue by selling on your own site and generally not accepting their license agreement because they are the king in the market.
Its not quite a standard clause -- you do have the choice to sell exclusively or non-exclusively. Non-exclusive cut for the author is 33% and exclusive cut is 50-70%. Its a pretty substantial difference, especially if you make a lot more sales on Themeforest than you do on your own site.
You have a choice, you just don't really have a choice IF you're trying to make your living on selling themes.
An ideal situation would be if the WP folks decided it's not worth it to fragment the community and let the theme folks participate. Participation doesn't kill innovation even if you disagree politically (except in congress).
I think this is pretty reasonable behavior by wp.org.
Their position has been entirely clear for years. No-one's forcing the OP to sell WP themes. No-one's required to find a way to let the OP profit from selling WP themes incompatibly with how the WP developers want their code to be used; much less to find a way to let the OP keep using one particular infringing WP theme site to sell his work when there are plenty of other theme sites out there that are successfully following the rules.
There is no evidence that the author is selling infringing WP themes.
Even if you accept that all clients of a library are inherently derivative works of that library (a stance I strongly oppose), there is no reasonable way to conclude that non-code theme assets must also be derivative. Trying to enforce additional restrictions on the author's own work is asinine.
I tried to use the awkward phrase "incompatibly with how the WP developers want their code to be used" to cover your viewpoint; regardless of the meaning of the legal code, their intent is clear and has been for a long time.
In those circumstances, blogging a complaint that you want to use GPL code but not in the way that the authors have very publicly stated that they think is reasonable doesn't get my sympathy -- go take someone else's code instead.
The authors are not just Automattic though, everyone who has contributed code has done so under the assumption that the code is GPL.
Automattic have just as much responsibility to respect the wishes of everyone who contributed to the source code, and by changing the effective terms of the license they are not.
> any person or business should give their users the same freedoms that WordPress itself provides. Note: this is one step above simple compliance, which requires PHP code to be GPL/compatible but allows proprietary licenses for JavaScript, CSS, and images.
they are fully aware that theme authors can comply with the GPL yet impose restrictions on users via licensing of non-derivative assets. They're just refusing to promote such parasitic behavior.
If I'm buying a GPL PHP mod I can get elsewhere for free with not-GPL assets, chances are it's because I think the assets are worth paying for. If the assets add sufficient value that people would rather pay than use the free theme, what's the problem?
You kind of seem to be missing the point on purpose here. In a free software environment, there are many things you can pay for, sure. Support, distribution, development, etc. But paying for the use of specific images is not very fitting. When you buy assets like that it's purely on the basis of IP monopoly, not because they provide you with any service and/or material.
Then again I don't think you're supposed to apply it to images in the first place. It's about freedom for software users, the ability to control their own computers.
Either way it's not really relevant to this discussion.
IMHO, it would be reasonable behavior if something like "GPL'd images" made any sense at all, but the licensing they are asking to enforce is just nonsensical.
Even RMS doesn't think the GPL is appropriate for everything (hence the FDL for docs).
Yes, but at least CC-BY-SA is a sane content license.
What does it even mean to be the corresponding source for images?
Can it be a JPG if you originally had a PNG?
JPG is lossy, after all, and therefore arguably may not be the corresponding source.
Also, the GPL says if you modify it, "a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change."
I guess you are supposed to put that in the EXIF?
Basically, the GPL is not a good content license, and is difficult to reason about legally for content.
So, if I have this right. In order to speak at this wordpress conference one must not distribute anything related to wordpress that isn't 100% GPL? That's pretty hardcore.
"The PHP in our themes is covered under the GPL, but the images, CSS, and JavaScript are not."
I know a lot of companies do this. Heck, even ID software provided free source of their engines, but didn't give away their WADs. But is the PhP in this case of any value without the rest? Can anything be done with it?
If the PhP is of no value on its own and it specific to the CSS, JS, and images, then imo that totally would violate the spirit of GPL'ing the other. If that is the case and you want to have it be proprietary, don't provide the source/files for any of it (for the new stuff). If you want it to be GPL, then sell it, but make all of it free source, including the images, JS, and CSS. Note: I believe that Stallman's view (if you care) is that not providing images is ok if it is art and not source/required for the source, but I think that is a loophole that can be exploited, so I say make it all free.
However, if the PhP provides some value on its own and is usable (like one of ID's engines), it's all good and do what you want.
There is nothing in GPL that says that you can't get paid for it. Just because you have to provide the source for free doesn't mean people can't pay you for the work, it just means they can't pay you for the source. They could pay you for the bundle (which they could create on their own if they wanted for free, but some may not be savvy enough to do that). GPL is not anti-capitalist.
That's entirely true. But you're likely to sell very few copies, because all another company has to do is buy it for the price you ask, and redistribute en mass. All they have to do is make up the price they paid, you have to worry about the time you put into it.
So what ends up happening is reduced quality or higher prices. (Basically, everything being a bespoke solution, because you aren't going to be selling too many.) The GPL is a poor model for something like a wordpress theme.
Is this not unlike Apple's App Store? Developers aren't shy about their disdain for Apple's control, but in the end, it doesn't matter. If you want to make money, you need to play by Apple's rules. Likewise ThemeForest is the dominant marketplace for WordPress themes, with +2MM users. It sounds like ThemeForest can call the shots (for now) if the ultimate goal is profits.
What is the source of the GPL virus in all this? What bits of technology are built upon GPL code? Would be feasible to re-write that code or theme such that it could be released in a less freedom restricting manner?
Since you call the GPL a "virus" I doubt you're trying to start an honest debate here, but maybe responding anyway will be useful to readers.
This drama actually has nothing to do with the GPL. The theme authors are complying fully with the GPL, and there is nothing legally or morally wrong with distributing a plugin containing separately-licensed code or assets. The exact same issues could arise even if Wordpress was released under the BSD/X11/Expat/etc licenses.
The problem is that Wordpress is trying to maintain a very high level of control over their community. One of the tools WP has is the ability to ban theme authors they don't like (i.e. those who sell themes on third-party sites) from attending official events.
Then WP throws in a few words about the GPL as a smokescreen to deflect anger at someone else.
The GPL is explicitly designed to be viral and I didn't know the source.
Below Dan Grossman said the Automattic released WordPress itself under the GPL license. It sounds like they did so because they wanted to, but they could have released it under any license they wanted. That would make WordPress the source.
Alternatively Automattic may be forced to release WordPress under GPL due to being a derived work of other code. This may or may not be true. Based on their behavior it does not seem to be a contributing factor either way.
The GPL is not designed to be "viral". It is the author's decision and right what license to apply (GPL or not), and it is their right to decide that development on that project and its derivatives should never be taken closed-source and to choose the GPL as the mechanism of ensuring this.
Otherwise, we are saying that Linus was doing something wrong to license his work under the GPL...
Please stop attacking people for applying GPL to their own work by their own choice. You are NEVER forced to use someone else's work in violation of their license. If you want to use their work, you must comply with their license. If you can't comply with the license, find an alternative or build your own. Then you will be able to license it as you wish. End of story.
It is designed so that if one chooses to create a work that makes use of another GPLed work, that the license "spreads" to the resulting combined work. It is in that sense that some people call it "viral" though, unlike most viral infections, choosing to incorporate a GPLed work into a larger work is done so willingly, even if sometimes those making the choice don't fully understand the ramifications. For example, as Torvalds notes [0] it's sometimes a gray area; kernel modules may or may not be considered derived works.
As you correctly note, it's the author's choice to adopt the license for a new project or to combined works licensed under the GPL into an existing project. That it is a choice doesn't preclude an analysis of the license's effect on any given work.
> It is designed so that if one chooses to create a work
> that makes use of another GPLed work, that the license
> "spreads" to the resulting combined work.
This is true for all popular software licenses under current US copyright law.
If you _dont_ license your code under the GPL or some similar license which explicitly allows others to build on your code, copyright prohibits anyone from doing so.
You can't, in general, "create a work that makes use of" somebody else's song, or movie, or novel. Because copyright says you need their permission, and there's not a culture of songwriters, filmmakers, or authors; who explicitly grant the freedom to use their work without asking. I find it difficult to understand people who intentionally use negative language like "viral" about the GPL. It's remarkable there so much high quality software available where the authors have said "here, you can use it inspite of the fact that it's copyrighted to us, the only condition we require is that you offer that freedom to everybody else if you build something new using our copyrighted work."
By that argument, MIT is even more free. Licensing your code under MIT basically says "here, you can use it inspite of the fact that it's copyrighted to us, no strings attached. Go forth and multiply." This is why the GPL gets portrayed as viral. It spreads to the parts that I add and restricts the license for my additions. Don't get me wrong: It's a completely fair thing to do - the authors are giving me something for free, but it's still a restriction.
How is the above statement true for BSD (3-Clause), MIT, APL or WTFPL? Neither of those licenses places any restriction on the license of the combined work.
Nobody has the right to change the license of a work except the copyright holder.
If I have a project licensed under the X11 license, and I copy some BSD-licensed code into it, then that code is still the property of the original owner, and it needs to remain under the BSD license. If I simply copied it and stripped out the copyright notices, then I would be committing copyright infringement.
True. The code you copied is still under MIT/X11/WTFPL etc. However, with GPL, the combined work, so the code that you copied and the code that you added yourself must be GPL. This is not true for MIT/BSD/X11/WTFPL. Under those licences, the combined work can be licensed under any license you choose, even a closed source one - so your original assertion is wrong.
The GPL is not "viral", unless you consider every copyright license to be. Would you say the BSD or X11 licenses are "viral"?
It's a common lie that someone might be forced to open-source their code because they accidentally copied some GPL'd code. This is not true. In a typical case of copyright infringement, the infringer must stop distributing the copied code and possibly pay damages. The GPL merely offers a additional choice, it doesn't force anything.
> The GPL is not "viral", unless you consider every copyright license to be. Would you say the BSD or X11 licenses are "viral"?
BSD is not viral. If you incorporate BSD code in your code, then you're free to licence the result under any license you choose. However, if you include GPL code in your code, the result must be under GPL or any other license that is compatible (AGPL for example). In that sense, the GPL is viral - it does not only cover the code that's licensed, but also "infects" other code.
> BSD is not viral. If you incorporate BSD code in your
> code, then you're free to licence the result under any
> license you choose.
No, you're not. You are not permitted to change the license of someone else's code. Their code remains under the BSD license, and you have to comply with it when you distribute the combined work (e.g. keeping copyright notices intact).
Let's see. This is MIT, but 3-clause BSD is pretty much equivalent:
> Copyright (c) 2013 Felix Gilcher
>
> MIT License
>
> Permission is hereby granted, free of charge, to any person obtaining
> a copy of this software and associated documentation files (the
> "Software"), to deal in the Software without restriction, including
> without limitation the rights to use, copy, modify, merge, publish,
> distribute, sublicense, and/or sell copies of the Software, and to
> permit persons to whom the Software is furnished to do so, subject to
> the following conditions:
>
> The above copyright notice and this permission notice shall be
> included in all copies or substantial portions of the Software.
>
> THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND,
> EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
> MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
> NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE
> LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION
> OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION
> WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
The important part is:
> to deal in the Software without restriction, including
> without limitation the rights to use, copy, modify, merge, publish,
> distribute, sublicense, and/or sell copies of the Software, and to
> permit persons to whom the Software is furnished to do so, subject to
> the following conditions:
All I need to do is retain the copyright notice, but only if I use substantial portions. So as long as I retain the notice, stating that some specified part of the code is licensed under MIT, I'm in the clear. The permission to sub-licence is explicitly granted, no further restriction is placed on the combined work. I don't have to provide the source code either. The end result can be whatever I choose, the license does not spread to the combined work. WTFPL is even more liberal:
> DO WHAT THE FUCK YOU WANT TO PUBLIC LICENSE
> Version 2, December 2004
>
> Copyright (C) 2004 Sam Hocevar <sam@hocevar.net>
>
> Everyone is permitted to copy and distribute verbatim or modified
> copies of this license document, and changing it is allowed as long
> as the name is changed.
>
> DO WHAT THE FUCK YOU WANT TO PUBLIC LICENSE
> TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION
>
> 0. You just DO WHAT THE FUCK YOU WANT TO.
No restrictions at all - effectively placing the code in the public domain, but a valid copyright waiver in jurisdictions where code cannot be placed in the public domain (e.g. in Germany, where copyrights cannot be waived)
WordPress itself is GPL licensed, and its creator, Automattic, contends that all themes and plugins for the CMS are derivative works, and must therefore be GPL licensed as well. Which is probably true, since in addition to being nonfunctional without WordPress to provide the functions themes and plugins hook into, they commonly copy large bits of code from the main codebase and make minor changes to them.
Envato allows you to list WordPress themes and plugins for sale in their marketplace, ThemeForest. They make these products available under a split license: the PHP code that interfaces with WordPress is made available under the GPL. CSS, JavaScript and binary assets are made available under a commercial license.
WordPress does not argue that the above scenario is illegal, only that if you split-license works like that, you're not welcome to present at conferences that use their name.
Actually, it's only true to the degree they copy bits of code.
The question whether conforming to a given API (which is what wordpress themes really do) constitutes a derivative work has so far only been answered "no" (and honestly, you better hope it stays that way).
GPL explicitly states that non-derivative works are not covered.
That said, basically, wordpress takes a legal position that is pretty bad, IMHO.
People copying the GPL code into their own code?
Great, i'm with you, it's GPL'd, assuming
1. it's copyrightable code.
2. it's not the only way to make it compatible, since if it's the only way to make it compatible, that's so far been considered fair use.
As the ninth circuit said, anything else would grant a de-facto monopoly on functional uses.
IMHO, you really don't want the legal reality to become what wordpress is trying to enforce.
"IMHO, you really don't want the legal reality to become what wordpress is trying to enforce."
While your explanation makes that clear (and thanks for that), there's a big difference between "our preferences should become law", and "our preferences are not supported by law, but people who don't agree with them don't get invited to speak at conferences we run". Democrats are free to run conferences without being required to allow republicans to present there and vice versa, why is that different for Wordpress's conferences?
I think your choice of the word "enforce" is probably a bit of an overreach for what Wordpress are trying to do.
(for what it's worth, I don't agree with what Wordpress are doing, it seems petty and small minded to me, but I do think they have every right to be petty and small minded about conferences they organize if they choose to be…)
They don't actually organize the conferences, and probably have no involvement in most of them aside from vetting those who volunteer as organizers. WordCamps are small, locally run, kind of like a big meetup (and are often first organized through meetup.com). Tickets are usually around $20, with volunteer speakers and a few sponsors to cover the meeting space. That's been my experience in this region at least.
If you do "copy large bits of code from the main codebase" this is moot, but I've wondered about the other point. If I don't copy any bits, I'm not really sure why my PHP code would necessarily fall under the GPL.
What if I made NotGPLPress that had API compatibility with WP's theme API, but was otherwise my implementation and released under a BSD license. That seems to be the exact same battle Google and Oracle just fought over Java, with Google essentially winning the APIs are not copyrightable battle. At that point couldn't every theme author just say that their theme is built for NotGPLPress and license it however they want? It seems odd that the existence or non-existence of another implementation should affect an author's licensing obligations.
Heh - I wonder of NotGPLPress would even have to work? ThemeForest could start selling NotGPLPress themes, with a note that NotGPLPress happens to be 100% API compatible with Wordpress. You'd need to ensure your themes weren't cut-n-pastes from code that is copyright Wordpress, but apart from that…
Of course, the bigger problem seems to be that (some) theme authors want to be "part of the Wordpress community", presumably largely for professional and monetary reasons, while ignoring that "the Wordpress community" is strongly reliant on (and fundamentally beholden too) Automatic, and they can (and do) place expectations on the behaviours of participants in "the community", and they can (and now are) requiring that participants at events they run comply with those expectations. If you want to be "part of a community" which is reliant on one company, you probably need to play by their rules, even if you can whip out your rules-lawyer hat and claim "but those rules aren't strict interpretations of 'the law'".
> WordPress does not argue that the above scenario is illegal, only that if you split-license works like that, you're not welcome to present at conferences that use their name.
Except that is ridiculous. What if you start a LLC and license your code through the LLC? How is WP going to know the developer of that split-licensed code? Does this mean everyone selling themes needs to start hiding behind legal entities?
What WordPress are doing is ensuring that if you want to build a reputation at a Wordpress conference, then you need to abide by what they think are important principles. If you want to be "Joe Smith, WordPress theme superstar" at their conference, you need to GPL your themes non-php assets. If you want to sell themes at ThemeForest as "Anonymous Foo Corp LLC" with commercially licensed non-php assets, that's fine too, but Anonymous Foo Corp doesn't get invited to speak at WordPress conferences, and if Joe Smith springs "Hey, I'm Anonymous Foo Corp on ThemeForest, go buy my shit" on the audience during a presentation at a WordPress conference, it'd be spectacularly poor form, and he should expect to be called out on it and never invited back.
(and the fact that the blog post got written shows that at least one theme author does want to build his reputation by speaking at their conference, but isn't prepared to meet their "rules". wordPress, rightly or wrongly, have decided you can't do that any more.)
You're making an error that many programmers make when they reason about the law. The law is not a set of rules about technology. The law is mostly about intent. The technology that is used is for the most part, as we programmers commonly say, "merely an implementation detail."
For example, the law says that you have to have a license to make a derivative work, and it is this particular law that is "the source of the GPL virus" in this situation. But whether or not you are making a derivative work does not have much to do with what bits of technology you use. Of course, the questions are related because choices of technology can make the question about whether you are creating a derivative work more believable on one side than the other. But if you making technology choices in the hope and on the sole basis that it has some impact on whether or not you are creating a derivative work, you are practicing cargo cult law, just the same as if you erase the experimental results table from your paper and hope it changes the gravitational constant. You're reasoning in the wrong direction.
Just as random aside, this is the same kind of thinking that led to the predominance of magnet links instead of torrent files. There are some technical reasons to prefer one over the other, but some people seem to believe there is a legal distinction when there is not. The magnet link is just as legal or illegal as the torrent file it replaces. The question is whether one is engaged in contributory copyright infringement, not whether one does it with URLs or not.
I'm with you on the intent aspect of the law, but I think there is a chance that the switch from torrent files to magnet links might have some effect on a non-technical person's thinking. In one instance you're "offering files for download", in another you're "linking". The intent could be the same, the technology could be essentially the same, but it may change the perception.
The main issue for the author is that they do not have control over the license used when selling on ThemeForest, and not selling on ThemeForest is not a viable option for them as sales through that platform account for most of their monthly income.
The author states:
"""The only license available to authors on ThemeForest is a split license[0]. The PHP in our themes is covered under the GPL, but the images, CSS, and JavaScript are not. There’s nothing wrong with this, and I also have no problem with this; But it doesn’t meet those guidelines for WordCamps that I mentioned earlier."""
So users of the THemeForest platform are unable to license their themes in any way they wish, but must split license their themes. Wordpress has a problem with this, hence the hard line being drawn.
Not sure what the resolution might be, but I think ThemeForest should allow fully GPL themes if authors so desire. Maybe there are implications to this I am not aware of?
[0] http://support.envato.com/index.php?/Live/Knowledgebase/Arti...