

Why the GPL does not apply to premium WordPress themes - dangrossman
http://perpetualbeta.com/release/2009/11/why-the-gpl-does-not-apply-to-premium-wordpress-themes/

======
dangrossman
A related law-review article someone else on HN shared with me:
[http://web.bu.edu/law/central/jd/organizations/journals/bulr...](http://web.bu.edu/law/central/jd/organizations/journals/bulr/volume85n5/Stoltz.pdf)

My interpretation is that the precedents in that article support this author's
intepretations -- WordPress themes and plugins are not derivative works of
WordPress. Merely calling simple interface functions is not enough to make a
derivative work according to those cases.

Also, it may not be clear at first glance, but the author of this article and
several of the commenters are lawyers.

~~~
jrockway
It depends on how you look at Wordpress. Are themes data that Wordpress
processes, or are themes programs that use Wordpress as a library? In the
first case, it is certain that the GPL does not apply. In the second case, it
is certain that it does.

Personally, I see Wordpress as a library for implementing Wordpress themes,
and it follows that Wordpress themes must be distributed under the terms of
the GPL. (Wordpress could easily fix this problem by making themes data, not
code. But they didn't implement it this way, which leads one to believe that
the authors intended for the themes to be GPL'd.)

 _Also, it may not be clear at first glance, but the author of this article
and several of the commenters are lawyers._

True, and their analysis of the law is very good (well, it sounds good to me,
anyway). But their analysis of the software is not so good; I think they
decided on my first scenario, even though the code does not support this.

~~~
pvg
_Personally, I see Wordpress as a library for implementing Wordpress themes_

By that tortured logic, the Linux kernel is a library for implementing
programs and thus every closed source driver and every closed source program
that run on Linux must be GPL'ed. It's pretty clear that the authors really
want themes to be GPL'ed but their intent is not the deciding factor here.

~~~
jrockway
There is specific wording in the GPL covering that case.

I am not trying to use "tortured logic" to make a point; I really think this
is how Wordpress themes work. Without a theme, Wordpress does absolutely
nothing. The theme makes calls into Wordpress to add data and display data.
Each theme is its own piece of blogging software that uses Wordpress to
abstract away common problems. That's a library.

Another "application" that is actually a library is xmonad. It's a library for
writing a window manager that works in a certain way, and it's your "config
file" that actually uses the library in such a way as to make a window
manager. This is not "tortured logic", it is just good software design.
(Although in the case of Wordpress, it's not the right design. _Themes_ should
not be applications, they should be data.)

~~~
pingswept
It's interesting that the structure of Wordpress affects whether the themes
are derivative works. Maybe it's the PHP-soup style of HTML interspersed with
PHP function calls that creates the situation you describe. The same system
written so that the themes are stored as lists of colors and dimensions to be
interpreted by the blog software would keep the themes as non-derivative
works.

~~~
jrockway
Definitely. XSLT is something that could work this way -- the blogging
software generates an XML document with all the relevant information, and then
the XML stylesheet is applied to make the XHTML (or Atom, etc.) result.
Additional CSS and Javascript could of course be bundled.

In this case, there would be no question as to the legal status of the theme.
It's just a program that transforms the output of another.

------
pvg
Just a few years ago, weren't we all up in arms about Microsoft's
misrepresentation of the virality of the GPL and their attempts to frighten
people away from using GPL'ed software? Looks like GPL zealots are doing their
job for them now.

At the time, various FOSS luminaries (including rms) signed this -

<http://perens.com/Articles/StandTogether.html>

Quote:

 _If you do choose to incorporate GPL code into a program, you will be
required to make the entire program Free Software. This is a fair exchange of
our code for yours, and one that will continue as you reap the benefit of
improvements contributed by the community. However, the legal requirements of
the GPL apply only to programs which incorporate some of the GPL-covered code
- not to other programs on the same system, and not to the data files that the
programs operate upon._

That doesn't sound like 'A GPL'ed program loads your template, making the
templated GPL'ed' at all.

~~~
jmillikin

      Looks like GPL zealots are doing their job for them now.
    

I'd like to see some justification for this statement.

In my experience, the people who try to extend the GPL beyond its lawful or
reasonable capabilities are more interested in forbidding competition than
guaranteeing user freedom. For example, MySQL's bizarre claims that their
protocol is GPL'd and that non-GPL reimplementations are infringement, or Matt
Mullenweg asserting that the GPL is a construct of the address space.

If RMS or Eben Moglen make a claim regarding the GPL, then it's worth
analyzing and debating -- but Joe Nobody, author of Yet Another PHP Blog
Engine, cannot be considered a reliable authority on GPL or copyright law.

~~~
pvg
_I'd like to see some justification for this statement._

Microsoft's contention was that using GPL'ed software exposes you and your
intellectual property to risk. The motivation of the parties making very broad
GPL claims is not relevant - what's relevant is that it is precisely the sort
of thing Microsoft was insinuating and precisely the sort of thing the linked
missive tries to disclaim.

 _Joe Nobody, author of Yet Another PHP Blog Engine_

Matt Mullenweg is hardly Joe Nobdy, nor is Wordpress Yet Another PHP Blog
Engine. He represents his claims as legally sound and offers the opinion of
lawyers who are, according to him "the world’s preëminent experts on the GPL".
See:

<http://wordpress.org/development/2009/07/themes-are-gpl-too/>

~~~
jmillikin
Does anybody care about Wordpress, though? The only times I ever hear about it
are when somebody's discovered another few dozen security holes. It seems to
be more of an experiment in poor design than a serious project.

If his beliefs are correct, it is illegal to distribute proprietary software
that only runs on Linux.

~~~
pvg
_Does anybody care about Wordpress, though?_

Yes. This is a well-established fact.

 _If his beliefs are correct_

If his beliefs were correct, nobody would touch anything GPL'ed with somebody
else's penis. His beliefs are either posturing or a sincere misunderstanding
of copyright.

------
patio11
Yet another reason why I am so glad that the Ruby/Rails community standardized
on the MIT license: it means that I don't have to care what DHH or Matz thinks
about my business model. Just as importantly, it doesn't mean I have to care
today what DHH or Matz will think of my business model five years from now.

------
jrockway
I am not sure I agree with this analysis. Stallman convinced someone to open-
source his entire lisp compiler because the REPL used the GPL'd readline
library, and Stallman seemed like he would have taken the issue to court.
Wordpress themes depend on Wordpress more than a compiler depends on a line-
editing library, so theme authors might want to assume that they only have the
protections of the GPL on their side. Anything else may be accidental.

~~~
tbrownaw
> Stallman convinced someone to open-source his entire lisp compiler because
> the REPL used the GPL'd readline library, and Stallman seemed like he would
> have taken the issue to court.

Defeating a bogus lawsuit costs money, so this could have just been the
cheaper route (or maybe the guy just wasn't familiar with the cases cited in
the article here).

~~~
sethg
...or maybe this happened before the _Galoob_ case that the OP mentioned, and
therefore the compiler author’s lawyers had good reason to fear that a court
would side with Stallman.

~~~
jjs
No, this happened several months after the case:

[http://clisp.cvs.sourceforge.net/*checkout*/clisp/clisp/doc/...](http://clisp.cvs.sourceforge.net/*checkout*/clisp/clisp/doc/Why-
CLISP-is-under-GPL)

[http://scholar.google.com/scholar_case?case=1086785624507896...](http://scholar.google.com/scholar_case?case=10867856245078964488&q=galoob+nintendo&hl=en&as_sdt=2002)

------
bricestacey
The GPL is pretty clear on this. I would consider WordPress themes as plugins
to WordPress. And thus, we consult the GPL FAQ:
<http://www.gnu.org/licenses/gpl-faq.html#GPLAndPlugins>

"If a program released under the GPL uses plug-ins, what are the requirements
for the licenses of a plug-in?

It depends on how the program invokes its plug-ins. If the program uses fork
and exec to invoke plug-ins, then the plug-ins are separate programs, so the
license for the main program makes no requirements for them.

If the program dynamically links plug-ins, and they make function calls to
each other and share data structures, we believe they form a single program,
which must be treated as an extension of both the main program and the plug-
ins. This means the plug-ins must be released under the GPL or a GPL-
compatible free software license, and that the terms of the GPL must be
followed when those plug-ins are distributed.

If the program dynamically links plug-ins, but the communication between them
is limited to invoking the ‘main’ function of the plug-in with some options
and waiting for it to return, that is a borderline case."

~~~
sethg
We are all familiar with software licenses that place broad restrictions on
what the customer can do (“you may not decompile, reverse-engineer, benchmark,
or play FrisbeeⓇ with this Software...”), but if those restrictions have any
legal effect at all, it is only because the license is in the form of a
contract (“by clicking ‘I ACCEPT’ you agree to all the terms of this
License...”) between the software vendor and the customer.

The GPL is, by design, a license rather than a contract, and therefore it
cannot forbid any action that copyright law permits. If indeed a WordPress
premium theme is not a “derivative work” within the meaning of copyright law,
then the GPL cannot touch it, _regardless of the GPL author’s intent_.

~~~
bricestacey
I should preface this that I don't really know much about copyright law. The
sticky point to me is that you could write WP themes as binaries called using
fork/exec. So in essence, the developer's choice to use WP function calls and
variables effectively makes it a derivate work, at least in my opinion.

I'm not a big fan of this, though it makes the most sense in my mind (at least
with my opinion mostly biased by the GPL). I remember reading Dries, the found
of Drupal, effectively claiming that all Drupal modules were GPL'ed and not
liking it so much that I have altered my plans for future Drupal modules (all
the better for me, my intellectual property will not be open for all to
witness as I intend a more hosted solution which I can charge a higher premium
for).

Ultimately, I feel like crusades by open source projects (WordPress, Drupal,
etc) to GPL their modules will backfire and create a more restrictive, hosted
component to them that they will ultimately regret. Dries did this for this
anti-spam module, Mollom. I don't think he'd be so happy if core features like
Views or CCK performed identically. Drupal would effectively suck. I guess
thats all the more reason to reject the idea that plugins are derivative
works.

~~~
jmillikin
Remember that the GPL is a copyright license. This means that the only cases
in which it matters are when the work is being distributed. The problem with
trying to coerce plugin authors into using the GPL is that plugins are usually
distributed separately from the core application. This means there's no legal
justification for suing somebody who writes a proprietary plugin, because
they're not participating in any action relevant to the GPL.

If I wrote an application which supports plugins, and I wanted to prevent a
particular non-GPL plugin from being used, the only legally justified way I
could do so would be to _sue my users_. That's right -- I'd have to attack the
very people using my software. Not the plugin authors, the _users_.

Ironically, this means that selling a proprietary plugin is safer than hosting
it. I wonder what Dries would think about that.

~~~
carussell
I believe the use case at hand is, given person Tom who has purchased a
premium WordPress theme, is the theme a derivative work, allowing Tom to
redistribute the theme to whomsoever he chooses?

------
carussell
I think one of the most important things to point out, for those relying on
the appeal to authority, is that, yes, the author of the linked post is a
lawyer, but not one specializing in copyright law. Readers should note mikewas
is Michael Wasylik, a real estate attorney at Ricardo, Wasylik, & Kaniuk
(<http://ricardolaw.com>), which focuses on foreclosures and bankruptcy in
Florida.

You'll have to forgive me if it sounds insulting, but it was obvious that
Mike's profession is not in copyright law, because his arguments and
applications of case law are sloppy. Please keep this in mind when considering
the validity of the posts, especially if one of the major factors in your
thoughts are credentials; copyright law is _very_ complex and its applications
to software bring about all kinds of issues that don't exist even in the realm
of copyright for other media. It requires an incredibly nuanced understanding
of the law at hand and legal precedents of the industry.

But I am not a laywer, so perhaps far be it from me to be speaking up.

------
pquerna
Several wordpress developers, both code and themes, were tired of the WP
several years ago, and started the Harbari Project, which is an Apache
Licensed blogging platform: <http://habariproject.org/en/>

They left the wordpress project, and picked the ASL license because of their
experiences in wordpress.

------
DanBlake
Its definitely murky at best if they are GPL'd. I would venture to say no. I
would also to venture to say that it would be trivial for wordpress to push
out a new version (with new wording on the license and a reworked template
system) which could make any compatible plugins/themes GPL'd if they wish to
move forward and have support for new versions of wordpress.

~~~
jrockway
No, they can't do this unless they have copyright assignment from all the
authors. If I contributed code to Wordpress under the GPL, I would expect that
that code be GPL'd forever. Wordpress can only change the license if they
remove my code. (I haven't contributed to Wordpress, but other people
theoretically have.)

~~~
DanBlake
Hence why I said a new version of wordpress where previous versions of
modifications and themes are non functional. Hence if you wish for your
product to be ported to a new version you would need to agree to the new
terms.

~~~
jrockway
If they haven't rewritten Wordpress to deal with the plethora of obvious
technical problems, it seems unlikely that they would rewrite it for mildly-
obscure legal reasons.

------
billpg
If a wordpress theme is all your own work, then no-one else has any business
telling you under what terms you distribute it.

The GPL2 tself says... "You are not required to accept this License, since you
have not signed it. However, nothing else grants you permission to modify or
distribute the Program or its derivative works."

------
dan_the_welder
Is the Wordpress founder annoyed somehow that he has helped create a thriving
marketplace?

~~~
tptacek
Presumably, he's annoyed that he distributed a piece of software under the
terms of the GPL, and others extended it and sold those extensions under
proprietary terms. If this was ffmpeg, we wouldn't even have to wonder about
it.

~~~
andrewtj
To expand on your comment - Matt Mullenweg is often quick to point out that
WordPress itself came into being by forking a GPL'd abandonware project. It's
because of this that I think he genuinely wants to ensure users of the
software have the same opportunities he has had.

Also, regarding the marketplace surrounding WordPress, WooThemes distribute
their themes under the GPL and per Andrew Warner's interview with co-founder
Adii Pienaar (<http://mixergy.com/woothemes-adriaan-pienaar/>) they make $2+
million a year and have had some of their code incorporated back into
WordPress by Automattic. This should assuage any fears about GPL themes being
commercially viable and of Automattic taking a dislike to others making money
off of WordPress.

~~~
dan_the_welder
As a big fan of the GPL I don't mean to come across as totally flippant.
However, I just don't see a problem with people selling themes.

In a hurry, not enough skills, buy a theme. Skilled with the time to make your
own, then roll your own.

You have a choice, you are not compelled to pay for a theme if you don't want
to. The software will continue to work regardless.

Unless there is some kind of legal stalking horse that could affect the GPL, I
don't see the point of all the fuss.

I use both Wordpress and Joomla and I see the same kind of thriving ecosystem
around both projects. Commercial and non-commercial plugins and themes for
both. Seems like a good thing to me and I don't see why it has to be an
either/or situation.

If I am missing something then I would like to hear it.

~~~
andrewtj
There is no problem with _selling_ themes. What may be a problem is
_distributing_ a theme under another license.

I think it's unlikely they'll do anything about this as legal action would be
detrimental to their community; meaning that this won't be decided unless
someone who receives a non-GPL'd theme contests it. This doesn't preclude
Automattic/Matt from stating their view and raising a bit of a fuss as you put
it in the interim.

To be clear - I'm neither a fan of the GPL, a lawyer or a WordPress user so I
don't know whether Automattic is in the right and I'm indifferent as to
whether or not they are.

------
ErrantX
I've always considered the fact that this discussion is still going on says a
lot about the openness of the gpl as a license. :(

~~~
theBobMcCormick
I think it says more about the legal system in general than the GPL
specifically. :-(

