WordPress vs. Thesis: Can WP Themes Be Non-GPL?
by Antone Roundy | 8 Comments | Blogging, Issues/Problems
Wow, what a stormy issue this has become! The following was going to be a follow-up comment over on Andy Beard's blog, but it got a little too long. Here's my take on the issue:
I guess I see it a little differently. Let me see if I can explain in a way that at least makes sense, even if it doesn't change anybody's mind :-)
First, the WP developers' code is, and should be, fully protected. If Chris were to take any files from WordPress and distribute them with Thesis without making Thesis GPL, he'd be violating their license. If he were to copy any of their code into Thesis, he'd likewise be violating their license.
Either of those would be essentially equivalent to static linking. Since PHP isn't a compiled language, there's technically no such thing as statically linked PHP. Essentially, if any code taken from WordPress were in the files being distributed with Thesis, that'd be equivalent to static linking. If on the other hand, the code in Thesis is unique, but just talks to whatever WordPress files are on the server, that's like dynamic linking.
But getting to my main point -- Chris' "moral" argument is that the WP developers get to control the license under which the code they wrote is distributed, and he gets to control the license under which the code he wrote is distributed. Unless the files he's distributing include code that they wrote, or code he created by modifying or "copying" code that they wrote, then to assert control over the licensing of the code he wrote is overstepping their copyright rights.
Since the GPL's power comes from copyright, it can't extend their rights beyond the control that copyright gives them. So I believe the LEGAL question comes down on Chris' side (assuming he hasn't in any way "copied" code from WordPress...I am not a lawyer).
The moral question is a bit more difficult to sort out. Clearly, the WP developers have no moral objection to people using WordPress on commercial websites, so it's not the fact that Chris is profiting that's the problem.
Nor is the issue that, in broad terms, WordPress and Thesis are cooperating to deliver the blog content (if that were the problem, they'd also object to WordPress running on Windows-based servers, for example, since Windows isn't GPL'd).
Nor, I believe, are the WP developers claiming that Thesis contains code "copied" from WordPress, although that may depend on the exact meaning of the word "copied". At least if there are any allegations of code copying, I believe that's not the main point of contention. In other words, even if any parts of Thesis that were seen as "copied" were removed or rewritten with totally unique code, I don't think everyone would be satisfied.
The way I'm hearing it, the people on the WP side feel that, since WP is given away under the GPL, other code in the WP ecosystem (ie. themes and plugins) should be distributed under equally permissive licenses. Using a more restrictive license while benefiting from the more lenient license violates people's sense of fairness.
While I understand that, from my perspective, it's difficult to argue that plugins and themes must be open sourced, but, for example, WordPress can be used to publish content that's not distributed under a Creative Commons license. In both cases (non-GPL theme, non-CC content), somebody's profiting using software they got for free. In both cases, they're licensing their "product" more restrictively than the GPL. In neither case are they profiting by distributing somebody else's work. In neither case are they hurting the "market" for the GPL'd software.
Plugins and themes FEEL close to being "derived from" WordPress because of how tightly they work together. But just to give one more example to illustrate my point of view -- let's say somebody had published a product that was completely independent of WordPress (we'll call it CaRP Evolution :-). Now let's say one day they decided to write a WordPress plugin to act as a "shim" between it and WordPress so that WordPress users could benefit from CaRP and CaRP users could benefit from WordPress. Surely, no one would argue that CaRP would then have to be released under the GPL, right?
In case anyone says yes, consider this -- what if the WordPress plugin were written by a third party? Clearly, that person has no authority to suck CaRP into the GPL.
Now let's imagine we went back in time, and when CaRP was first developed, a WordPress plugin were developed and packaged with it -- can CaRP be non-GPL now? At most, you might argue that the plugin should be GPL'd (I'd disagree...but wouldn't care that much).
So let's apply this to Thesis. If Thesis were written in such a way that any code that directly interfaced with the WordPress API were combined into files that were separate from the files that do all the stuff that's unique to Thesis (or at least for which Chris has independently created his own implementation), even if the "shim" files should be released under the GPL, how can you argue that the WP developers should be able to exercise control over the unique parts?
Would you feel any differently if Thesis included shims for other, non-GPL blogging systems? Surely, that COULD be done. Why does it matter that it hasn't been?
At the very least, I'd have to agree with Chris that he has the right to control the licensing for the unique code he's written.
July 16th, 2010 at 2:46 am
Your case with CaRP is the kind of work-around I suggest with classes, or effectively what Automattic themself use with Akismet.
It is also the same as applications that sit on top of Linux rather than modules that "taint" the source (sometimes for justifiable reasons such as interfacing with proprietary hardware)
In the case of Thesis a developer who was working on Thesis 18 months ago copied large chunks of code, and it is even documented in the source.
As more and more code is now put under the microscope, not just from core code, but also from the plugin repository, I am sure more examples will emerge.
Thesis up until 1.7 - even 1.8 beta is now effectively "tainted" with GPL. I am not a lawyer but my non-lawyer opinion is that Chris is screwed.
July 16th, 2010 at 5:25 am
Thanks for the link. I haven't followed this discussion enough to have seen that before. The example shown at http://drewblas.com/2010/07/15/an-analysis-of-gpled-code-in-thesis/ was particularly convincing.
Although I'd still assert that it's POSSIBLE to create a theme or plugin that isn't derivative, it now looks to me like Chris has crossed the line.
July 16th, 2010 at 1:04 pm
[...] WordPress vs Thesis Can WP Themes be Non-GPL? [...]
July 21st, 2010 at 4:58 pm
OK, I have poked through the tweets, read the posts, listened to the debate bubbling away in the background, and now I have heard both Chris and Matt put their respective sides of the argument. So I now hold, what I would consider to be, at least a semi-informed view on the issue.
I can see both sides of the disagreement, but I have to say, I think Matt's line of reasoning is the better informed, the most public spirited and the one which has already and would continue to benefit the online community the most.
Chris way over-estimates the importance of Thesis to the WordPress community, and his position in that community. Somewhat speciously, he uses this inflated estimate of its worth to argue he should not be subject to a license that was in place long before he built Thesis and upon which he was entitled, in fact as a businessman, obliged, to read and understand before so doing .
I am also astonished at how rude, boorish and over-bearing Chris was in trying to dominate the debate, and had I known his views and understood the issues a little sooner, I would never have bought Thesis.
I wish I could keep my temper in check, as Matt did, but I know myself better than that. So I tried to think what I could do to help, instead of just getting mad, and this is what I decided.
Because of the overriding benefit to the online community, even though he will surely prevail; I don't think Matt should have to put up his own money to fight a law case to prove the validity of the GPL which is, in effect, on our behalf.
Therefore, I think the GPL should be tested another way. If you have bought a version of Thesis from DIY Themes (Chris Pearsonâ€™s company), or from any other website, you can click this link now and join the "Thesis Class Action Suit" list at http://virtualcrowds.org/thesis-class-action, and letâ€™s see just how many people agree with Chris, and how many with Matt and the GPL.
July 21st, 2010 at 5:17 pm
Not being a lawyer, I don't know whether a class action suit by Thesis buyers could get approved. It seems to me that Thesis buyers may have difficulty convincing the courts that they've been harmed in a way that would give them standing to sue. If Thesis violates the GPL, then it's WordPress that's been harmed.
Whether this would be a good test case for the validity of the GPL is another good question. If Thesis contains code copied from WordPress that can't be defended by a fair use argument, then the case could be decided strictly on copyright issues.
If Thesis doesn't contain copied code, then it becomes a question of whether using a product's API makes something a "derivative work" (and perhaps how tightly the two products have to be integrated for that to be the case), which again, is a copyright issue. The fact that the GPL was used to grant usage rights to the copyrighted material is secondary, and may be pretty much ignored by the courts.
Copyright holders do have power to control distribution of derivative works. I guess the question is whether that control can be used to force a derivative product to be licensed under the GPL, or whether you can only get damages and an injunction against further distribution if it isn't.
July 22nd, 2010 at 12:49 am
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August 5th, 2010 at 1:18 pm
[...] theme is a derivative of the WordPress program, then Thesis should be GPL, too. See the articles on Geckotribe and Mixergy for more on this [...]
November 24th, 2010 at 9:21 am
[...] WordPress vs. Thesis: Can WP Themes Be Non-GPL? argues well about static and dynamic linking, and beyond. [...]