"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.
The license explicitly says it has to be GPL. End of discussion. He is making up his own rules!
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...
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.
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.
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.
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.
Galoob is fascinating - thanks for that, I've not read it before.
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.
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.
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.
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.
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?
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.
EDIT: Not many licenses have been challenged in court, including the GPL. Do you have any cases to cite in favor of GPL?
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.
Not to say that his argument couldn't fly, but I'm not sure I would give it that much credence either.
My respect for Matt just jumped ten-fold for being so calm with this guy and I am not even a fan-boy.
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.
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).
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.)"
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).
People who are doing this sort of thing aren't going to be stopped by text in a license.
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:
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.
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.
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.
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.
Maybe there's a reason people have accepted it up to now.
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.
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.
If the portions he used only contain function calls, I wouldn't consider it derivative work.
(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.
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 is well-tested in that respect.
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.
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.
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?
"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."
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.
"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."
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.
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.
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.
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.
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.
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.
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.
The crux of this issue seems to be a philosophical debate.
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?
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).
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.
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.
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?
It seems that if you buy the FSF's position 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.
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".
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.
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.
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.
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?
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.