

Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview  - jaxc
http://mixergy.com/chris-pearson-matt-mullenweg/

======
jseifer
Some choice quotes from Chris Pearson in this interview:

"This can't be understated or just glossed over as if it's not true. My
position at the market is pretty much at the top. I'm the most visible person
in this space so everyone's gunning for me. Everyone wants a piece."

"There's no resolving this. Either you sue me or you don't. Or you continue to
talk, or you don't."

"I've been arguably one of the top 3 most important figures in the history
wordpress."

Regarding GPL enforcement: "When I was in college in Georgia it was apparently
illegal to get a blow job. But that's one of those laws that's never enforced.
So that brings up a valid question. What kind of law is it if it's
unenforceable?"

"At this time I feel like my method of operation is exactly congruent with my
feelings about everything."

"I don't have time for rhetoric, I have time for action."

"There's no incentive that incentivises me to do anything. All of my decisions
come from within."

Also, he calls the GPL a flimsy and unenforceable license. I agree with
everyone calling Matt gracious and patient. My respect for Matt shot up after
listening to this.

~~~
unavailable
Zuckerberg's theft robs Pearson of sleep.

------
joshkaufman
I've been spending a lot of time today wondering why Matt cares so much about
what license Chris uses - it seems like no real harm is being done to either
party here, but both parties are digging in their heels so strongly I find it
hard to believe it's purely a philosophical difference.

I just had a thought, and I'd like to sanity check it. I don't know Matt or
Chris, but I use both Wordpress and Thesis every day, so consider this 100%
speculation based on my experience:

1\. I use Thesis to manage almost all of my Wordpress sites because it makes
my work significantly easier - Thesis extends WP in many useful ways that
aren't built into WP core. I'm capable of doing it all myself in the code, but
it's much easier to handle it in Thesis, which I think is a major reason why
it's so popular.

2\. If Thesis adopted the GPL, that means the code is open to be distributed
and reapplied by anyone for free. That means Thesis features could legally be
added to WP Core _without paying Chris royalties_. In Matt's eyes, that would
be great - it would make WP better by incorporating many new features that
users have demonstrated they like/want/need. (I'm pretty sure some former WP
plugins have been added to core over time in this way.)

3\. If Thesis' features are incorporated into WP Core, Chris' very profitable
business evaporates almost immediately - the value is in the added
functionality, not the stylesheet, so there'd be no reason for anyone to
purchase Thesis. That means if Thesis is forced to adopt the GPL, Pearson
stands to lose _big time_.

4\. If Thesis' commercial license is legal (which the post at
[http://perpetualbeta.com/release/2009/12/why-the-
gplderivati...](http://perpetualbeta.com/release/2009/12/why-the-
gplderivative-work-debate-doesnt-matter-for-wordpress-themes/) makes a strong
case for, depending on the definition of "derivative work" when it comes to
software), any IP from Thesis incorporated into WP Core without permission or
royalties would violate Chris' rights and potentially generate a valid IP
infringement lawsuit.

5\. Based on the tone of the conversation so far, I don't think Chris would
ever give Matt (or anyone else) permission to use IP from Thesis in WP Core
without a massive royalty payment.

6\. If Matt wants to have the freedom to incorporate Thesis features into WP
Core, but doesn't want to pay Chris royalties, he'd have a vested interest in
publicly pressuring Chris into adopting the GPL, which is what Matt appears to
be doing. Chris finds that offensive, so he's telling Matt to fuck off and sue
him if he really wants to push the issue. To Chris, a lawsuit (which will be
easier to defend because his business partner, Brian Clark, is an attorney) is
a small price to pay to prevent losing millions in revenue, and he believes
Matt will lose in the end.

Again, total speculation, but this is the only reason I can think of right now
they'd go after each other so strongly. Thoughts?

~~~
photomatt
We've never incorporated anyone's code without their full participation and
there's no code in Thesis I would want anywhere near core anyway. Thesis is a
triumph of marketing, not technical competence. (In fact it relies on people
not being able to question its incredulous claims about structure and SEO.)
The few cool ideas it has were done in other themes first anyway. On a tech
level, WooThemes is doing far more interesting work. (And they have been
involved in core development.)

~~~
jackowayed
What's your opinion on that fair use argument? That's the only way I could see
Chris having a legal leg to stand on. It seems pretty clear that Thesis is a
derivative work, especially given that it extends a Wordpress class[1], but if
a theme's use of Wordpress does fall under fair use, he wouldn't be violating
the license.

It seems that if you buy the FSF's position[2] that linking from a proprietary
program violates the license (meaning that linking is not fair use), Wordpress
themes are definitely not fair use. But I'm not sure if that's been
established in court.

[1]: [http://apeatling.wordpress.com/2010/07/14/thesis-and-the-
gpl...](http://apeatling.wordpress.com/2010/07/14/thesis-and-the-gpl/)

[2]:
[http://en.wikipedia.org/wiki/GPL#Point_of_view:_any_linking_...](http://en.wikipedia.org/wiki/GPL#Point_of_view:_any_linking_violates_GPL)

~~~
photomatt
I don't think this is a case of fair use. There is linking, which in the
manner which themes work and are loaded inside of WordPress is very deep, and
there is also copy and pasted WP code included in Thesis.

------
pavs
Trying my best not to sound rude, but Chris Pearson sounds extremely
obnoxious. His analogies are all over the place and very defensive; most
likely because he realizes that he is on the wrong end of the debate.

The license explicitly says it has to be GPL. End of discussion. He is making
up his own rules!

~~~
rick888
"The license explicitly says it has to be GPL. End of discussion. He is making
up his own rules!"

The license does. However, I don't think his theme uses actual wordpress code
beyond function calls. I would hardly call this a derivative work.

~~~
Otto42
It does actually go deeper than that, but really that's beside the point.
Function calls into the WordPress code is enough.

WordPress has a public API... several of them, in fact. A theme doesn't use
those, it makes direct calls to internal WP code, and it uses WordPress
internal data structures. This is enough to make it a derivative work.

From [http://www.gnu.org/licenses/old-
licenses/gpl-2.0-faq.html#Me...](http://www.gnu.org/licenses/old-
licenses/gpl-2.0-faq.html#MereAggregation) :

"Combining two modules means connecting them together so that they form a
single larger program. If either part is covered by the GPL, the whole
combination must also be released under the GPL—if you can't, or won't, do
that, you may not combine them.

What constitutes combining two parts into one program? This is a legal
question, which ultimately judges will decide. We believe that a proper
criterion depends both on the mechanism of communication (exec, pipes, rpc,
function calls within a shared address space, etc.) and the semantics of the
communication (what kinds of information are interchanged).

If the modules are included in the same executable file, they are definitely
combined in one program. If modules are designed to run linked together in a
shared address space, that almost surely means combining them into one
program.

By contrast, pipes, sockets and command-line arguments are communication
mechanisms normally used between two separate programs. So when they are used
for communication, the modules normally are separate programs. But if the
semantics of the communication are intimate enough, exchanging complex
internal data structures, that too could be a basis to consider the two parts
as combined into a larger program."

Ultimately, it is a matter of interpretation, but all previous interpretation,
including those made in courts of law, pretty much universally agree with Matt
on this one. It's very difficult to consider a theme to be a "separate
program" when it's deep-linking to internal functions and data structures
_and_ it also cannot run independently.

~~~
tzs
> Ultimately, it is a matter of interpretation, but all previous
> interpretation, including those made in courts of law, pretty much
> universally agree with Matt on this one.

There have been no court cases I'm aware of that have dealt with this in the
context of a GPL program. There are, however, numerous cases where the code
being called was not GPL, and they have pretty much universally ruled that the
FSF position is wrong--blob of code X calling into blob of code Y does NOT
make X a derivative work of Y.

~~~
Otto42
In the specific context of a GPL program, no, but there is case law backing up
my argument. Micro Star v. Formgen for example, held that a Duke Nukem 3D map
file (which contained no code or anything else from the game itself) was a
derivative work because it referenced artwork and other materials from the
game's files.

~~~
tzs
A Kozinski opinion. Those are always entertaining. Most judges write very dry
and formal opinions. Kozinski opens with "Duke Nukem routinely vanquishes
Octabrain and the Protozoid Slimer. But what about the dreaded Micro Star?"

A key point from the opinion:

"Micro Star further argues that the MAP files are not derivative works because
they do not, in fact, incorporate any of D/N-3D's protected expression. In
particular, Micro Star makes much of the fact that the N/I MAP files reference
the source art library, but do not actually contain any art files themselves.
Therefore, it claims, nothing of D/N-3D's is reproduced in the MAP files. In
making this argument, Micro Star misconstrues the protected work. The work
that Micro Star infringes is the D/N-3D story itself--a beefy commando type
named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops
with a gun, lobbing hand grenades, searching for medkits and steroids, using a
jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive
slime. A copyright owner holds the right to create sequels, see Trust Co. Bank
v. MGM/UA Entertainment Co., 772 F.2d 740 (11th Cir.1985), and the stories
told in the N/I MAP files are surely sequels, telling new (though somewhat
repetitive) tales of Duke's fabulous adventures. A book about Duke Nukem would
infringe for the same reason, even if it contained no pictures."

They use that same notion, that the MAP file is encoding a D/N story, in
dismissing the claim that it is the user making the derivative work, not Micro
Star. It doesn't seem to be the artwork per se that's the problem for Micro
Star--it's that it is telling a D/N story.

------
elbrodeur
Chris Pearson's defense is thin at best: Switching to GPL wouldn't affect my
business at all! It just rubs me the wrong way!

Additionally, he comes across as a real jerk.

EDIT: After listening to the whole thing I am appalled by Chris Pearson's lack
of understanding about licensing and his offensive attitude.

Matt Mullenweg deserves an award for being so gracious and patient.

~~~
rick888
"Chris Pearson's defense is thin at best: Switching to GPL wouldn't affect my
business at all! It just rubs me the wrong way!"

It will ruin his business. Anyone that buys the thesis theme will be able to
share it for free (and he will have no legal recourse).

"Additionally, he comes across as a real jerk."

so does Richard Stallman. I think he is sick of the GPL zealots hounding him.
I would be too.

"Matt Mullenweg deserves an award for being so gracious and patient."

Matt Mullenweg wants all plugins and themes to be open sourced because he will
be able to give them out for free with the WP platform (which will result in
more users and more customers for the services that he charges for).

~~~
Otto42
Anybody who buys it now can share it for free. You can get online, right now,
and find a copy of thesis and download it without paying a dime.

People who are doing this sort of thing aren't going to be stopped by text in
a license.

------
slantyyz
From what I've seen of the portion of the GPL in question, the definition of
"derivative work" is subject to interpretation, in my mind. Something for the
lawyers to figure out.

My 2 cents: Myself, I'm not convinced that a theme is a derivative work. Isn't
the API documentation public? Is it not -theoretically- (although impractical)
possible to create a theme for Wordpress without having Wordpress itself?
(Having said that, it would also be possible to write a non-GPL blogging
engine that uses the same API without seeing the Wordpress code) Also, since
the theme isn't distributed with Wordpress, I personally think it's harder to
argue that it's a derivative piece of work, since none of the original
Wordpress code is altered.

A better source of information from a legal perspective is the guy at
perpetualbeta.com, who delved into this a few months ago with a couple of
posts:

[http://perpetualbeta.com/release/2009/11/why-the-gpl-does-
no...](http://perpetualbeta.com/release/2009/11/why-the-gpl-does-not-apply-to-
premium-wordpress-themes/) [http://perpetualbeta.com/release/2009/12/why-the-
gplderivati...](http://perpetualbeta.com/release/2009/12/why-the-
gplderivative-work-debate-doesnt-matter-for-wordpress-themes/)

From what I understand, he -is- a lawyer, and he has done intellectual
property work, so his opinion, at least on the surface, would seem to have
some weight. His position that "fair use" moots the GPL argument is quite
interesting.

------
jholloway
I guess I'm the only one who saw Matt as the obnoxious one in that
conversation? He kept putting words in Chris' mouth, playing slap-fight, and
making snarky statements like, "Oh, I'll be sure to consult you in the future
before I say anything." And the worst was when he said that "literally the
whole legal community except for one guy in Florida" agrees with his
interpretation of the GPL. That's just ignorant and irresponsible. About as
bad as citing three clearly biased pro-GPL organizations as your sources for
why you're right.

Look, I agree that Chris probably overstated his position in the WP community.
It probably wasn't the smartest thing to call himself one of the top 3 most
influential people in WP. However, I feel that his reasons for not wanting to
go GPL are legitimate and for some reason Matt can't seem to understand that
Chris is making a stand on principle here, not just revenue. I also understand
his frustration. He's getting pounded left and right, sometimes with vicious
personal attacks, mainly based on Matt's specious arguments. He's fed up, he's
tired of the talk, and he wants Matt/WP to take action if they really care
that much about it.

As far as I am concerned, if they really believe Chris is in violation of the
license, WP can and should take action to try to shut down Chris if he doesn't
comply, including legal action. They are fully within their rights to do that.
But please, don't just sit back and spew half-truths and try to tear down the
guy's reputation. As the old saying goes, if you're going to talk the talk,
you should walk the walk.

~~~
eavc
Nobody likes going to court. It's expensive and contentious.

Matt made an impressive effort to appeal to law, ethics, the golden rule,
economics, majority opinion, and more, and for the vast majority of the
interview, he did it politely.

Chris essentially said, "There's no way I'm going to change my mind no matter
what because it's my opinion. Why don't you sue me?"

Matt cited IP lawyers and organizations. He also cited that large corporations
have wanted to challenge but decided not to.

I found it to be a lopsided argument in the most complete way possible.

~~~
jholloway
I think the point here is that Chris is one of the first people to stand up
and challenge the assertion made by Matt that the GPL automatically applies to
all WP themes and plugins. Everyone has just sat there and accepted it up to
now. Everyone on HN and elsewhere that is just telling Chris, "Oh, just follow
the rules, why are you fighting this?" — why should he follow rules that may
as well be arbitrary?

Even if this does go to court and it turns out that Chris is indeed in
violation of the GPL, I still applaud him for having the courage to stick to
what he believes in. In my opinion, the GPL needs to be tested either way. I
think at this point we can all speculate, but no one really knows what will or
won't stand up in front of a judge and jury.

~~~
mattw
I would have been very interested if this had gone to court to test the GPL
purely in the context of themes/plugins, because to me that's the grey area.
As it is, I wish (for the sake of both parties) that the matter could be
settled without legal intervention. Now that it's been demonstrated that
Thesis outright copies and incorporates portions of WP source code, it seems
unlikely that a court decision would directly answer the question of plugins,
because it wouldn't need to. (I don't think anybody argues that such copying
isn't a GPL violation.)

------
cgomez
"However, I think any astute economic analysis of economic systems of the way
businesses and economies actually work would very quickly notice that a GPL
does some very inorganic things to what are otherwise organic systems. So,
from a systemic standpoint, on a systemic level, I disagree with the way the
GPL perpetuates economies."

What on earth does that even mean? Also, he's one of the top three most
important people by his own admission. Not any of the people who actually
write the software that allows him to have a business.

------
johnnytee
What's up with that esoteric rant about systems by Chris? What the hell is
that guy talking about? Sounds like Sarah Palin.

~~~
slantyyz
Maybe he gets "word salad" when he's wound up. And boy did he sound wound up.

~~~
pavs
Yeah, he was all over the place. Some people just can't talk on pressure
situation. Quite a few time I had to go back and listen to what he was saying
and still couldn't make sense. He just puts up a bunch of words together and
it makes absolutely no sense. Sarah Palin is an apt comparison.

------
sushi
Chris misinterprets GPL and fails to give valid argument. He even comes off as
Sarah Palin of the WordPress community.

------
babyboy808
Matt, much much respect for acting like a true gentleman and staying calm, you
showed Chris what he is really like by letting him make a fool of himself!

------
dantheman
Wow, the amount of ignorance displayed here is significant. It's painful just
listening to it, and the blatant double think -- I'm protecting my rights by
disregarding your rights...

~~~
dantheman
He seems to not understand the difference between lgpl and the gpl.

~~~
rick888
"He seems to not understand the difference between lgpl and the gpl."

If calling a function from a GPL project or having css/html that interact with
a GPL project means that your project needs to also be open sourced, this
should be a wakeup call to all businesses to not get anywhere near the
license.

~~~
icey
WordPress' position on what parts must be GPLed is quite clear, and explicitly
excludes CSS and media. The PHP portions of the themes are the parts they
argue must be GPLed.

~~~
rick888
"WordPress' position on what parts must be GPLed is quite clear, and
explicitly excludes CSS and media. The PHP portions of the themes are the
parts they argue must be GPLed."

If the portions he used only contain function calls, I wouldn't consider it
derivative work.

~~~
icey
The Southern Freedom Law Network does consider that derivative:
<http://wordpress.org/news/2009/07/themes-are-gpl-too/>

(I linked this in my other reply to you as well. Sorry for the repetition, but
I think it was worth mentioning in both places.)

~~~
rick888
"(I linked this in my other reply to you as well. Sorry for the repetition,
but I think it was worth mentioning in both places.)"

Well, the RIAA considers copyright infringement "theft". It doesn't make
either of these true.

------
moge
I gotta say, I was in the audience for this and it was stunning to hear. If
you have not listened to the full audio it is well worth the listen. Huge
props to Andrew for doing awesome moderation. This whole thing went down
because his booked guest canceled so Andrew moderated this very heated
discussion on the fly.

------
STHayden
Matt Mullenweg is, in general, the nicest person in the world and if you can
actually find a point of contention with him then you are doing something
wrong.

------
jasonlbaptiste
I'm trying to see the practical reasons of why NOT to use the GPL in this
specific case. If people are going to steal thesis they will steal it. GPL
doesn't change that. Here's what I want yo know: how many people has chris
asked to stop illegally distributing thesis? This is interesting to me as I'm
releasing something very cool re: wordpress themes next week.

~~~
rick888
"If people are going to steal thesis they will steal it. GPL doesn't change
that."

No, it doesn't. But it doesn't give you any right to stop people from stealing
it. Someone could also come out with the thesis 2 theme, not change anything
about it, and start selling it. Chris would have no recourse.

~~~
icey
It's almost like you could license your product and explain how it must be
used, and then someone comes along and decides not to obey the license just
because they don't feel like obeying it.

~~~
rick888
"It's almost like you could license your product and explain how it must be
used, and then someone comes along and decides not to obey the license just
because they don't feel like obeying it."

Not really. Thesis shouldn't be considered a derivative work. If it is, than
any application that runs under Linux should also be considered a derivative
work (you need Linux to run the app..right?).

Should any app compiled using GCC be considered derivative work?

~~~
rick888
"According to WordPress' intent stated here:
<http://wordpress.org/news/2009/07/themes-are-gpl-too/> the themes are being
considered a derivative work. I'm not a lawyer and honestly not a huge fan of
the GPL, but this seems pretty clear-cut to me."

I don't see how they can automatically assume that all themes are under the
GPL license. If you make a theme that does not use any existing wordpress
code, it wouldn't be considered a derivative work.

~~~
icey
FTA:

 _"The PHP elements, taken together, are clearly derivative of WordPress
code.... 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."_

------
stoney
I don't understand why just because something requires Wordpress to work it is
a derivative work? Surely anything designed to work on any platform would be a
derivative work by that argument? The GPL talks about containing the original
Program, not requiring it.

Looking at the quote below from the Software Freedom Law Center, if you
replace "PHP" with "VBA" and "Wordpress" with "Excel" it would imply that all
Excel macros are derivative works of Excel and so only Microsoft can
distribute them.

The following is taken from <http://wordpress.org/news/2009/07/themes-are-gpl-
too/>, bits in [] are my addition:

 _The PHP[VBA] elements, taken together, are clearly derivative of
WordPress[Excel] code. The template[macro] is loaded via the
include()[whatever] function. Its contents are combined with the
WordPress[Excel] code in memory to be processed by PHP[VBA] along with (and
completely indistinguishable from) the rest of WordPress[Excel]. The PHP[VBA]
code consists largely of calls to WordPress[Excel] functions and sparse,
minimal logic to control which WordPress[Excel] functions are accessed and how
many times they will be called. They are derivative of WordPress[Excel]
because every part of them is determined by the content of the
WordPress[Excel] functions they call. As works of authorship, they are
designed only to be combined with WordPress[Excel] into a larger work._

~~~
Otto42
In the case of Excel macros, Microsoft have provided a public API within which
to create those programs.

This is not the case for WordPress themes. Themes use the internal structures
of WordPress to do their work, not the public APIs that WordPress provides.

~~~
stoney
So what defines a public API? The Wordpress internals are all public so why
doesn't that count as an API?

------
tbrooks
I'm like Chris. I get really emotional and passionate when I argue. ...and
that's when I end up sticking my foot in my mouth.

A mentor sat me down and told me, "Look, don't let your emotions drive your
logic. Choose when to be mad. So that when you're mad, people will see you're
making a point by choosing to be mad."

Matt is a PR agency dream. He calm, cool, and collected. He is a frickin pro
in this exchange and it's hard to side with Chris when he sounds like a
buffoon.

------
jeb
Chris Pearson generally is quite the ass. Try submitting any comment that in
any way mildly suggests he might be wrong to his blog - it gets deleted
immediately.

------
jscore
Haven't seen the interview but I'll give my $0.02 here.

I use WordPress and just started using Thesis, I think it's a well designed
product, albeit a bit simple, but does that it supposed to do really well.
It's a nice theme, and very easy to configure either from the WP UI or via the
filters/actions. It definitely extends WordPress nicely. It's by far my
favorite theme and I plan on using it on my projects (and I must've tried a
million themes).

Now, if Thesis becomes open source, you can forget about quality, premium
themes. Without monetary incentive, people won't rise up to create a good
theme, and believe me, I checked WP themes, and most them are just crap.

Second, what's the fuss? Thesis is part of the WP eco-system, and its a mutual
relationship. The more Thesis grows, the more WP grows. I'm sure he has his
moral views, etc, but if someone wants to create a premium product (not using
WP's code) and charge for it, let them do it.

~~~
pavs
I hope thesis is not the only commercial theme you ever used. Themeforest, one
of the premium wordpress theme market, has ~745 high quality themes with some
publishers making 6 figures and all of those themes are GPL (to the best of my
knowledge), I think this is also true for WooThemes.

The argument that making it GPL will break business is a very weak one. There
is nothing, absolutely zero barrier, for someone to copy Thesis and sell it
under another name, technically speaking.

~~~
slantyyz
In all fairness, WooThemes was not GPL from the get go. They went GPL a little
later, on their own. I think their blog post announcing that said that they
planned to go GPL when they felt like it was good for them to do so.

------
tzm
From my understanding, only the code that interacts with the Wordpress method
calls would be subject to GPL. You can abstract out the code that is not
dependent upon Wordpress and avoid GPL overall.

An example of this is using RESTful APIs in a cloud environment, where your
logic runs on an entirely different server.

Another example is to imagine a plugin that integrates Microsoft Outlook with
Wordpress. Would Outlook then be subject to GPL? No. But, the code that sits
between Wordpress and Outlook probably would be.

~~~
callmeed
Doesn't every theme call WordPress methods in order to get posts, use widgets,
etc?

~~~
tzm
Themes, most likely; Apps, not likely. I think confusion occurs when themes
become web apps with their own internal codebase outside of Wordpress as a
blog platform.

The crux of this issue seems to be a philosophical debate.

~~~
slantyyz
But wait. The theme documentation is public, and as far as I know, you don't
have to agree to any license to read it.

IN THEORY, you could write a simple theme without even having Wordpress
(albeit totally impractical). So if some mad scientist PHP programmer wrote a
theme based totally on the documentation freely available on the website
without ever installing Wordpress or looking at the Wordpress source, would
that theme be subject to the GPL?

~~~
pavs
Thesis is more than just a gobbled up css theme, its a framework within
wordpress. It won't work (the same way) without wordpress.

~~~
slantyyz
I don't really have a horse in this race, but from the sounds of it, Chris
does seem crazy enough to stick it out in a court fight. My gut tells me he
would come out the winner if it went to judgement.

~~~
Psyonic
As a general rule, "gut feel" doesn't predict the outcome of legal battles all
that well.

------
pavs
Themes are GPL too: (Interesting read)

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

~~~
tzs
That was not very convincing. Does program X calling functions from program Y
make X a derivative work of Y? The answer, according to copyright law and
numerous court cases is no. Given just a list of Wordpress functions, but no
access to the Wordpress source code, can you write a theme? The answer appears
to be yes from what I can see.

Such a theme cannot be a derivative work of Wordpress.

Yes, when someone uses the theme, there is a derivative work in memory. That
derivative work is created by the person who is running Wordpress, not by the
theme author. And yes, the theme author intended that users would create that
derivative work. So? There's nothing illegal about that. It's legal, according
to the license, for the user to make and run derivative works, and therefore
it is legal for theme authors to provide them things that aid them in doing so
(as long as those things, standing alone, are not derivative works).

------
rick888
If it's just function calls to the Wordpress code, I still can't see how it
can be considered derivative. He also does not distribute Wordpress along with
his theme. It's the user's job to put them together. This to me means it's
separate and not derivative.

This just exemplifies the viral nature of the GPL and why businesses need to
seriously consider using any code that involves the license.

This entire situation is a little hypocritical to me (for HN). Whenever there
is an article about the piratebay (or piracy for that matter), there is
usually a barrage of comments about how piracy is okay, it helps the content
provider (because it's getting more usage), and it doesn't hurt or harm the
original author.

Now that it involves the GPL (a person defending their copyright/license
ownership..just like the record and movie industries), the majority here are
singing a different tune. This just means that it has nothing to do with
what's right and wrong, but political ideology.

------
smallegan
They talk about CSS, JS and Images being excluded from the Wordpress GPL.
Isn't this 99% of what most themes are made of?

What Chris has is not a theme but more of a dynamic theme generator.

What he should do is make Thesis additionally compatible with another
CMS/Blogging tool so that the claims about Thesis delivering nothing but a
blank page without Wordpress will no longer be true.

I appreciate the work of the open source community and donate to projects that
I use most often but I also fully support Chris in being able to make a choice
as to what license he wants to apply to his software.

~~~
pavs
Of course he has the choice to put whatever license he wants, but not when he
is using wordpress. If he is using wordpress he has to abide by wordpress
license the same way people would abide by whatever license he put on Thesis,
if it wasn't using wordpress.

------
icey
This is pretty interesting, someone did a detailed analysis of GPLed code
found inside of Thesis:

[http://drewblas.com/2010/07/15/an-analysis-of-gpled-code-
in-...](http://drewblas.com/2010/07/15/an-analysis-of-gpled-code-in-thesis/)

------
sigzero
I have not checked. Do other CMS projects force the GPL license on themes?

~~~
pavs
Yup. See Also: Drupal.

~~~
michaeltwofish
Note that Drupal specifically excludes Javascript, images, Flash, from being
GPL'd.

<http://drupal.org/licensing/faq#q7>

~~~
maepaulino
That's what Matt's saying too. Only the PHP files in the theme are GPL.

------
skitzzo
Guys, it's important for you to not frame your opinion solely on this
interview. Take a look at Matt's tweets prior to this as well as his comments
elsewhere. He's far from a gentleman or patient.

~~~
babyboy808
links please

~~~
skitzzo
Sure, I've got several...

<http://twitter.com/photomatt/status/18536188489>

<http://www.flickr.com/photos/mg315/4792383313/> (Matt claiming Chris verbally
abused Jane Wells)

<http://twitter.com/photomatt/status/18529673700> (Matt calling Chris a "non-
coder" and impugning the Thesis theme)

<http://twitter.com/photomatt/status/18533505517> (Matt calling Thesis
"scammy")

<http://twitter.com/photomatt/status/18535500457> (Matt blatantly patronizing
Chris)

And in the interview, when Chris brings up the issue of Matt being more
responsible with his actions, Matt deftly dodges the questions. As I said
before, while I think Chris came off a bit wound up, it's understandable given
the context of the accusations that had been leveled by Matt prior to this
interview.

~~~
jholloway
Totally agree here. All the comments on this post are lauding Matt for being
"calm and collected," but it's still possible to be a jackass while sounding
calm and collected. Chris got loud and fired up in the interview because he
was defending something he believes in. Nothing wrong with that at all.

------
malloreon
I'm listening to this while posting this question, but if Matt is correct,
does that mean Thesis and therefore all wordpress themes must be available for
free?

~~~
skitzzo
No, even if Matt is correct people can still charge for themes.

GPL themes are able to be shared and redistributed however the end user sees
fit.

That's the big difference. I can sell GPL themes myself for half price & they
have no recourse. People can give GPL themes away for free and the developers
have no recourse.

That's what the debate is about, whether themes inherit the GPL or not.

No one (that I know of) is arguing the GPL doesn't apply at all. What people,
such as myself are arguing is that the GPL doesn't automatically apply to
wOrdPRESS themes.

~~~
malloreon
Let me see if I follow you. If Matt is correct, Chris can still charge for
themes, but isn't required to make it available for free.

If you purchase Chris' theme, and sell it to me for $10, if Matt is correct,
Chris has no claim against you, but if Chris is correct, he does.

Is all that right?

~~~
mdolon
Almost - the GPL wouldn't apply to the CSS, JS or HTML of his themes, nor
would the GPL nullify trademark and copyright. Still doesn't mean that his
claim would hold up in court but it probably wouldn't be completely hopeless
either.

~~~
BobbyH
In addition, if I purchased the Thesis theme, although the GPL would give me
the right to redistribute it, I would not be able to market my redistributed
theme as "Thesis", presuming that Chris has trademarked that mark.

So if I tried to redistribute the theme as "Thesis", Chris could (1) sue me
for trademark infringement. He could also (2) file a DMCA claim against me (or
sue me for violating his copyright), if my product included his copyrighted
CSS/JS/images/etc.

These remaining trademark and copyright protections are why Matt asserts that
applying the GPL license to the Thesis theme would not hurt Chris' business.

------
thomasreggi
You cant fight against open source. The masses will always side with open
source. But I can't blame Chris Pearson for not wanting to mess with his cash
flow. Chris needs to really start thinking Legacy > Currency.

