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Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview (mixergy.com)
64 points by jaxc 2268 days ago | hide | past | web | 122 comments | favorite



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.


Zuckerberg's theft robs Pearson of sleep.


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!


Hahaha Chris is ridiculous. My favourite part is when he goes off on the massive tangent about his love of "systems" and just wants a "natural" flow. What is he even saying?

He wants to make money and is scared to GPL. Fair enough.

However, Matt and WordPress can sue him and they should. Stop these goofy debates and making Chris squirm awkwardly. Though it is kind of funny...


Mr. Chris Pearson , excuse me Sir, I don't want to be rude but you are an idiot, but the bad part of it: he doesn't even know it. Wordpress is GPL, everything build on Wordpress has to be GPL as the licence states. End of the discussion, he has to understand, it's not about what he wants or doesn't want, what he thinks or doesn't think, those are just the fact, you don't like it, go pick another platform. Mr. Chris Pearson , you are wrong, it's not about what you decide or not, those are the rules of GPL.


I agree with this entirely. Chris is making his decisions based on what he thinks the rules should be rather than what the rules are


"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.


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... :

"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.


> 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.


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.


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.


You know when you take a stance, and you say "What would it take for me to change my opinion on this?" Yeah, this is one of those situations for me. Have you got a cite?


Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. is relevant, as is Sega v. Accolade.


Sega v Accolade is food for thought. I don't think it's directly relevant, dealing as it does with direct copying (and an associated trademark claim, but I'll ignore that), but there are some tangential opinions in there that might have a logical bearing.

Galoob is fascinating - thanks for that, I've not read it before.


Exactly... and it is obvious the Chris came into this discussion with his mind set (and not open) and didn't listen to a single thing Matt said.


"Exactly... and it is obvious the Chris came into this discussion with his mind set (and not open) and didn't listen to a single thing Matt said."

Do you think Matt would have changed his mind either? From his tweets and past interviews, he doesn't seem like he will ever change is mind about derivative works.


It seems to me that Matt went into it not wanting to sue, and is now considering it. That's a change of direction, if not opinion.


"It seems to me that Matt went into it not wanting to sue"

He still hasn't changed one bit on his opinion of plugins/themes and the GPL.


He wasn't really offered a compelling argument to do that, so that's no surprise.


"He still hasn't changed one bit on his opinion of plugins/themes and the GPL."

Well, matt wasn't offering a compelling argument for chris to release under the GPL either, so I guess they are even.


Complying with the license to avoid breaking the law and risking a lawsuit is usually a very compelling argument for a business person. But not this one, that much is clear.


"Complying with the license to avoid breaking the law and risking a lawsuit is usually a very compelling argument for a business person. But not this one, that much is clear."

I love all the posts here about "breaking the law". I never see this much support when a content owner doesn't want their stuff shared on the torrent networks for free. Funny how politics plays into the rights and wrongs of society.


Sure. Ignoring all the other reasons to pirate something, like lack of legal alternatives or whatever, most people who pirate a song, film or whatever, don't do it for profit.


But there are people or enterprises profiting in piracy. Go to The Pirate Bay and type in anything and click on the search result. Heck, even go to the splash page. There are ads.

The songs and films and software on The Pirate Bay aren't funding the corporations or artists with the copyrights, but they are funding the revenue stream of TPB itself.


Obnoxious or not, I think the point of contention is whether a theme can considered a derivative work or not. I think you can easily find lawyers who would have no trouble arguing either side of the case.


So find me a lawyer (more than just a blog post) who have successfully contented against such a case.

Did you watch the whole interview? His views has nothing to do with laws, nothing to do with grey areas within the license (from my understanding GPL is very explicit about this); he basically said "I don't wanna do this because, I don't wanna do this."

How can you rationalize with that?


Did you notice that Matt wasn't able to produce a lawyer who successfully contended that themes were derivative works? Sure the SFLC chimed in but what do you think their opinion would be given that they are the Software Freedom Law Center?

While Chris may not have stuck on point about the gray areas within the license (it is FAR from explicit), that doesn't mean they don't still apply. And last I checked, we're still innocent until proven guilty in regards to the kinds of accusations Matt is making.

Matt is the one with the burden of proof here, not Chris and Matt most certainly hasn't achieved the requisite level of proof IMO.


Look at the two links provided in one of my other comments pointing to perpetualbeta.com. That guy is an IP lawyer who provided some opinion that is not on the side of Wordpress.

EDIT: Not many licenses have been challenged in court, including the GPL. Do you have any cases to cite in favor of GPL?


From your search link, I don't see any results of cases where the infringement wasn't based primarily on redistribution of the original work.

I don't think that Thesis is distributed with a copy of Wordpress. I definitely think it's a sketchier argument to make with a theme. Settlement of a case doesn't always mean that the defendant is going to lose either. It can also mean that the cost and distraction of a protracted suit makes it easier to swallow the cost of the settlement.


You are right they are different issues. Personally I would like to see Matt and FSF go after him and end the debate once and for all.


That would make for an interesting case, and if I'm not mistaken, the first real test case for the GPL.


He isn't an IP lawyer. He's a real-estate foreclosure and bankruptcy lawyer. In his bio at the law firm he co-founded I can't find a mention of any IP-related expertise: http://ricardolaw.com/michael-alex-wasylik/

Not to say that his argument couldn't fly, but I'm not sure I would give it that much credence either.



I honestly thought I was the only thinking this!


Confirmed this guy is obnoxious: http://i.imgur.com/wffx2.png

My respect for Matt just jumped ten-fold for being so calm with this guy and I am not even a fan-boy.


fully agree, I was impress from Matt, seems to be an extremely smart and calm Guy.


Agreed.


Chris was a jerk this entire interview. Over and over again he was ranting and shouting Matt down. Matt was superb throughout; calm, patient, and prepared. He had one blurt-out, while Pearson frantically dug his own grave. Totally agreed.


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.


It's unfortunate Chris showed himself this way. He came across as a nice guy and impressive business owner in his previous Mixergy interview.

He is clearly emotionally invested in this debate and would be better off letting someone else represent his side in the future (PR person, lawyer, parrot etc).


That's not his defense. His defense is that the GPL is legally unenforceable in his particular case.

What you call his defense is really his justification for fighting so hard. And his justification is more than "it just rubs me the wrong way." His sense of ownership is being violated.

As for Matt Mullenweg's graciousness, see this comment where he snipes Pearson's work:

"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.)" http://news.ycombinator.com/item?id=1517073


"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).


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.


open source zealots are in full force tonight


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/2009/12/why-the-gplderivati...

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.


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.


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.


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.


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.)


I would admire Chris for that reason if any of his arguments had been even slightly cogent.

Maybe there's a reason people have accepted it up to now.


"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.


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


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


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.


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


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!


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...


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.


"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.


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.


"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.


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.)


"(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.


Hopefully they just sue him to so that he learns the value of a contract.


Was there a contract?

The murky legal problem with the GPL and other free software licenses is that there isn't any consideration (no exchange of money), or proof of offer and acceptance.

It's a lot easier to prove with paid software and the clicking of a checkbox.

IANAL, but it would be interesting to know if there's any legal precedents for the enforceability of free/gpl/open source licenses.


The GPL has been upheld as a perfectly valid and enforceable license on many occasions. However, in all those cases, this happened via initial injunctions or the like, not in an actual final case itself. Basically, once the license was ruled valid by the judge, it becomes very clear that one side had no case and thus they settled to avoid a protracted suit.

The GPL is well-tested in that respect.


I guess the problem, especially in the US, is that no case has gone to judgment. It also doesn't help that certain states show certain biases in interpretation. Notice that a lot of patent cases go to Texas?

My presumption on some of the cases where the GPL has been most successful without going to judgement is that those have been the ones where there is the clearest infringement (i.e., Linksys 'borrowing code' for their routers, etc), i.e., direct copies or only slightly modified versions of the original source.

If it gets far enough, I think it will come down to a layperson's (judge or jury) interpretation (based on lawyer and witness arguments) on whether a theme is like reselling a modified car (i.e., Ruf Turbo - a modified Porsche), or an aftermarket car stereo (i.e., one that reverse engineered an automaker's proprietary connector). Yes, code is intangible, unlike a car, and there are places where my overly simplistic analogy breaks apart, but it's not unheard of to look at it in this manner. A federal judge recently compared mp3 torrent sharing to playing music in a business - not that similar, but in the grand scheme of things, you can see some parallels.


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.


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.


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.


"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.


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.


"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?


There's a specific exemption in the license for this though:

"The permission you need—to convey the object code from these GCC libraries under your own project's license—is primarily contained in section 2:

You have permission to propagate a work of Target Code formed by combining the Runtime Library with Independent Modules, even if such propagation would otherwise violate the terms of GPLv3, provided that all Target Code was generated by Eligible Compilation Processes. You may then convey such a combination under terms of your choice, consistent with the licensing of the Independent Modules."

http://www.gnu.org/licenses/gcc-exception-3.1-faq.html


"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.


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."


"If you make a theme that does not use any existing wordpress code, it wouldn't be considered a derivative work."

I personally would consider that to be impossible, however, you are basically correct.

In this specific case though, that does not apply. Thesis makes heavy use of WordPress code.


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 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.


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.


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


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.


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.


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.


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.


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.


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.


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


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.


Yes but. I personally think it sucks that you would force a "theme" maker to use a specific license. However, if Wordpress says they have to be GPL and you know they have to be GPL, then just release it as GPL because that is the right thing to do.


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?


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


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.


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


Themes are GPL too: (Interesting read)

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


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).


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.


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.


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.


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... 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?


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.)


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...

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


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.


I find that believable because Thesis was a waste of money. I'm more comfortable picking and choosing which plugins and themes I want to use and getting into the code if I have to. Thesis never came me anything faster than I could do with the those things alone. Their most compelling argument to me was the structure/SEO claims which were never well explained. None of my sites, Thesis or otherwise, ever did well from an SEO standpoint, so in that respect I have no preference.

To me it seems like they just got popular because they were promoted on Copyblogger with a huge readership and all of it's partners/affiliates. You can't go to a site about copywriting/SEO/online marketing/Wordpress/blogging without getting hit over the head about how "Thesis is the greatest thing ever".


It could be that the GPL license increases software adoption.

If Thesis was GPL, there would be a lot more Thesis powered Wordpress blogs out there. I think Matt attributes a lot of Wordpress' success to the open community the GPL allows, which evidently leads to more and more people using Wordpress as the platform of choice.

And like Matt said, if the members of the Wordpress community start thinking that its OK to not use GPL, it could be slippery for Wordpress as it will effect growth.

??


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-...


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


Yup. See Also: Drupal.


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

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


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


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.


I looked at his tweet, what are you referring to?


links please


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.


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.


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?


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.


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?


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.


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.


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.




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