

An analysis of GPLed code in Thesis - icey
http://drewblas.com/2010/07/15/an-analysis-of-gpled-code-in-thesis/

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alain94040
_Whether or not this means the ENTIRE Thesis codebase must be GPL’ed I can’t
say_

I can answer that. The quoted sentence is one of the biggest misunderstandings
that developers make about the GPL. There is no obligation to make Thesis
GPLed.

What's really happening rather, is that the author of Thesis is violating
Wordpress's copyright. In order to fix the situation, they need to either stop
using the copyrighted code, or reach some kind of agreement with the author of
the code to obtain proper authorization. One way to obtain such authorization
is by releasing their own code under GPL, but they could as well just
negotiate a separate agreement.

GPL is not a virus that will force your code open without your consent.

~~~
WalterGR
_GPL is not a virus that will force your code open without your consent._

In a lawsuit, could the copyright holder of a GPLed work force the opening of
GPL-violating code as part of a GPL-violation settlement?

EDIT: I'm not a lawyer nor a student of the law. Presumably the copyright
holder is _entitled_ to some form of compensation, whether it's called a
"settlement" or something else. Can the plaintiff dictate that the only form
of compensation they will find sufficient is the defendant's release of the
infringing code?

~~~
alain94040
If it's a settlement, by definition, you are not forcing the other party,
since they agree.

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ajg1977
Pretty damning.

I've generally agreed with theme authors that just interoperating with GPL
software via its API is not enough to require your work to also be GPL'd, but
when your theme or plugin contains whole sections of modified GPL code you've
pretty much lost the argument.

~~~
Indyan
This does settle the case as far as Thesis is concerned.

But, this still doesn't make it OK for Automattic to force all theme
developers to move to GPL. As that guy rightly points out, by the same logic
you should sue all closed source software on Linux that makes use of system
calls.

~~~
icey
The solution seems quite simple: If you don't like the GPL, don't develop
themes for WordPress.

~~~
mseebach
That's not at all simple. The corollary of that statement is "if you don't
like the GPL, don't develop applications for GNU/Linux".

~~~
icey
WordPress states explicitly that it considers the PHP portion of themes to be
GPLed. Seems pretty simple to me.

~~~
slantyyz
_WordPress states explicitly that it considers the PHP portion of themes to be
GPLed._

That they consider it a derivative work is their -legal opinion-. Remember
their license still doesn't supercede local laws and a court could invalidate
Wordpress' legal opinion of what a derivative work is.

~~~
stoney
Furthermore, it doesn't matter what WordPress considers to be GPLed or not,
what matters is what it says in the license.

------
tzs
I'm impressed. The author starts with this disclaimer:

> I’m not a lawyer, I’m a developer. My views here are my own and are based on
> TECHNICAL knowledge and experience with the GPL, not on the law (which
> astute observers will note often does not reflect real life)

I was not expecting much, therefore, in the way of accurate legal analysis,
yet a couple paragraphs later he goes on to show the errors in the SFLCs
analysis, and then goes on to correctly state what is required for something
to be a derivative work, and then analyzes the theme in question to see if it
is a derivative work.

If he had left off the disclaimer, and tossed in a couple of direct case
citations in proper legal citation format (instead of just citing another blog
that cited a major case), I'd have not guessed that he wasn't a copyright
lawyer.

------
neutronicus
Hmmmph. Is PHP so different from C/C++/Fortran that it essentially transforms
the GPL into the LGPL? If one compiles against the GNU scientific library, or
writes a GUI frontend for GNU octave, the application is tainted. The FSF has
also been explicit that one cannot get around this using shared libraries
(hence the LGPL, where one _can_ ).

------
jambo
Now what about the user-generated content (e.g. blog post)? The content is
mixed with the HTML from the GPL-covered work. Is it then also subject to the
GPL?

I ask, because Bison is distributed under a modified GPL for this reason, and
Gnu.org addresses the question with respect to Bison and to CMS templates.

"As it happens, Bison can also be used to develop non-free programs. This is
because we decided to explicitly permit the use of the Bison standard parser
program in Bison output files without restriction. We made the decision
because there were other tools comparable to Bison which already permitted use
for non-free programs."

\- [http://www.gnu.org/licenses/gpl-
faq.html#CanIUseGPLToolsForN...](http://www.gnu.org/licenses/gpl-
faq.html#CanIUseGPLToolsForNF)

That document also addresses CMS templates specifically, stating that they
basically shouldn't be GPL, for the same reason, as far as I can tell: "It is
normally harmless to use copyleft on minor works, but templates are a special
case, because they are combined with data provided by users of the application
and the combination is distributed. So, we recommend that you license your
templates under simple permissive terms."

\- <http://www.gnu.org/licenses/gpl-faq.html#WMS>

Relatedly, I've been bothered by Drupal.org and the SFLC's stance that all
Drupal modules and themes are GPL-covered for exactly this reason. [edit: for
exactly the reason that the SFLC is claiming that Thesis is GPL]

------
ajtaylor
It's going to be extremely hard to argue with that diff. The Thesis version is
basically the same code with only some minor reformatting and additional
comments.

~~~
intlect
It's actually a matter of proving it was copied and not written like that on
account of, you know, good coding practice.

~~~
icey
<http://ma.tt/2010/07/syn-thesis-1/#comments>

Search for the third match of "Rick Beckman"

 _"I’m the one who contributed that particular chunk of code to Thesis. A lot
of stuff in that particular file was done by me simply because at the time I
didn’t know any better & I’m not sure if Chris & I had even discussed the GPL
at that point or not."_

------
BobbyH
If Chris were to release another version of Thesis that didn't use any GPL'ed
code, would Thesis still have to be GPL'ed? What I'm asking is if Thesis is
tainted forever by this copy-paste-refactor, or if he could "fix" the issue.

~~~
jmillikin
Thesis itself can be fixed by removing any infringing code, but the
developer's reputation might be more difficult to repair.

~~~
rick888
"Thesis itself can be fixed by removing any infringing code, but the
developer's reputation might be more difficult to repair."

Considering that he was already attacked when the guys from wordpress didn't
even know if he was using code or not, I doubt it. Matt already stated that
any themes or plugins fall under the GPL (even if you are only making function
calls)

~~~
jambo
This is the Drupal Association's stance as well, and I think it has some side
effects, that haven't been considered, with respect to content.

------
VanL
This is a better analysis than most, but it is unlikely that a court analyzing
this would stop there. The court would probably use the
Abstraction/Filtration/Comparison test.

Take the code, filter out the abstract concepts, the purely functional
expression, and finally the short words and phrases in what was left. Some
other courts would impose a further filter based on fair use and
interoperability.

Take a look at the diff and apply some of those filters in your mind. After
all those filters, I am unsure what, if anything, would be left.

EDIT: I had thought that this might be a case of parallel development, but
Rick Beckman (former dev for Thesis) just posted that there was copy-paste
from WordPress core - he did it. (<http://ma.tt/2010/07/syn-
thesis-1/#comments>, Rick Beckman @8:41) Although that doesn't make it
completely open-and-shut, it makes it significantly more likely that Matt/WP
would prevail.

~~~
slantyyz
Makes it more likely that Matt/WP would prevail on what?

That Thesis infringes on WP copyright by using some GPL code, or that add-ons
like themes are truly derivative works?

The article seems to confirm the former, but not the latter.

------
intlect
I just wanna point out that Matt Mullenweg used to have a much more logical,
awesome, and superior stance before he decided to become Richard Stallman's
apprentice.

<http://ma.tt/2009/10/matt-qa-wordpress-gpl/#comment-469692>

~~~
slouch
now he's commented on his own blog to confirm he's going to sue thesis:
<http://ma.tt/2010/07/syn-thesis-1/#comment-481725>

~~~
slantyyz
I hope this thing doesn't get settled and goes to a judgment.

This would reduce the amount of rhetoric, since we'll finally get an idea of
where a US court stands on parts of the GPL. Settlements don't provide any
clarification.

It would be interesting to see if more projects go with GPL or switch to other
licenses like the MIT or Apache license.

~~~
slouch
i agree. i am all ears since i have a book full of notes surrounding a large
WP plugin project that i plan to sell.

------
Judson
I could be completely wrong here, but all the arguments I have seen from WP
have to do with themes being derivative works, which is more of an idealogical
argument of the GPL than anything else.

Does anyone know why Wordpress is so defensive over this though?

~~~
sfall
I think wordpress has an interest to have it all as free software, Matt's
business are not built around selling themes their built around services anti
spam, backup, etc

~~~
sigzero
The _themes_ are not WP software. They are contributions by theme developers
and it should be up to them how the license it whatever WP might say. UNLESS
they copy GPL'd code into their themes.

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bryanh
I guess I missed all the brew-ha-ha and build up. Am I mistaken, or can you
sell GPL software legally? Even if his themes fall under GPL licensing which
is somehow enforced, what difference does it make? (other than ideologically?)

~~~
oscardelben
The derivative work must be released under GPL code as well, and thesis isn't
<http://www.gnu.org/licenses/gpl.html>

~~~
dillydally
The is is whether themes are derivative works in the first place.

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coliveira
I don't know how this theme is distributed, but I guess every buyer receives a
copy of the theme's PHP. So they are distributing the source code along with
the software, which is what the GPL requires...

