

All Wordpress Themes Are GPL, Too - powertower
http://wordpress.org/news/2009/07/themes-are-gpl-too/

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tzs
I continue to be unimpressed with SFLC's understanding of copyright law. In
particular, they are using some kind of definition of "derivative work" that
doesn't match what the courts use, or what most other lawyers use.

As near as I can tell, what they are doing is confusing evidentiary factors
that would be used to support a case for copyright infringement with the
actual elements of copyright infringement.

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ceol
I'm unfamiliar with the specifics of software licenses. Does this mean that
WordPress cannot dictate what license third party themes are under?

I remember reading elsewhere that themes must be GPL but plugins do not. Don't
they both use the same WordPress API?

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tzs
As far as I can tell, SFLC is operating under the theory that if you write
something that is not useful except when used in conjunction with X, and when
executed is somehow combined with X, and your thing makes calls to functions
in X, your thing must be a derivative work of X, and so you need copyright
permission from X's copyright owner.

I don't see any way to reconcile that approach with the case law. For example,
there have been attempts to use copyright to stop people from making
unauthorized games for video game consoles. Note that a console game is not
useful except when used with the console, when executed it is combined with
the console code (the classic consoles, at least, generally did not have any
memory protection or distinction between system code and user code), and the
game makes calls into the console system software. The unauthorized game
makers generally won these suits.

The question that needs to be asked when you write a theme or plugin is do you
have to actually incorporate any copyrighted elements of WordPress into your
source code? (Note: the case law supports the position that if a it is
necessary to incorporate a copyrighted element in order to interface to
something, then that is OK...the copyright monopoly is supposed to be a
limited monopoly, and cannot be used to get a patent-like monopoly on
something by controlling the interfaces).

So, for example, if someone were to reverse engineer WordPress themes and
plugins, and write and publish a document on how to write theme, but were to
not include copyrighted elements from WordPress (other than those necessary
for interfacing), then you could sit down and use that documentation to write
themes and plugins, and my contention is that you would not have created a
derivative work, and you could go ahead and distribute it to users who could
use it with their WordPress installations.

