Lawsuit Averted As WordPress and Thesis Settle Differences Over Themes And The GPL
from the family-feud dept
Free (libre) and open source software is one of the best examples of an alternative to restrictive copyright, but even within these communities there can be heated debates about licensing. The WordPress community just witnessed such a debate between the founder of WordPress, Matt Mullenweg, and the developer of a popular premium WordPress theme, Chris Pearson, over whether or not themes are subject to the GPL (WordPress’ license). The GPL applies to derivative works of a program—requiring that they, too, must be licensed freely—but Pearson maintained quite publicly that he wasn’t subject to it and could use a proprietary license for his theme. This caused tension between him and Mullenweg, until last week, when Pearson gave in and switched to a split GPL license.
Without getting too bogged down in the legal details and community politics, the dispute is of interest for a couple reasons. Although some open source developers believe the GPL is too restrictive, copyright enforcement is approached in a very different way by free software projects than proprietary software companies or the entertainment industry. Mullenweg had sought a legal opinion from the Software Freedom Law Center over a year ago, and they agreed that the PHP part of a WordPress theme (which interfaces directly with WordPress code) is subject to the GPL, while JavaScript and CSS are not. Pearson disagreed, relying on some pretty novel legal arguments, but those were countered by others in the community. Mullenweg began to put more social and business pressure on Pearson, offering to pay for people to move away from Thesis to premium WordPress themes fully available under the GPL, and speaking publicly about how he felt Thesis was hurting the community by violating the license. Things became pretty heated, and the two squared off in a joint interview, failing to reach any visible consensus. It seemed like a lawsuit from Mullenweg would be the only way to resolve things—something he’d been trying to avoid at all costs—but a week later, the legal conflict was averted as Pearson switched to a split GPL license (i.e. PHP is GPL, as required; proprietary license for the rest). It was messy, but very different from the sue-first-ask-questions-later approach of so many copyright holders, and a lot less messy than a lawsuit could have been. The business and social pressure caused some tension in the short-term, for sure, but ultimately led to a resolution without nearly as much pain or division as a lawsuit within the community might have caused.
This kind of disagreement also highlights the fact that free software licenses (like the GPL) and the free culture licenses they’ve inspired (like some of those offered by Creative Commons) are ultimately hacks on a restrictive copyright system; they’re merely tactics to reverse the negative effects of overly restrictive copyright, but not at all the ideal scenario. For example, we’ve seen concerns over how Creative Commons licenses act as a contractual layer on top of copyright, and non-commercial restrictions can also be a source of tension. Sometimes these disputes help a community to better develop its position on copyright and licensing, but other times, they’re a sign that these licenses are still just a hack on a less than ideal system.
It’ll be interesting to see how Thesis fares in the long-run with a split licensing approach compared to other premium themes that are 100% GPL. Regardless, it’s nice to have a more or less happy ending where the community was able to resolve things without getting the courts involved.
Filed Under: copyright, gpl, themes, thesis, wordpress
Companies: automattic
Comments on “Lawsuit Averted As WordPress and Thesis Settle Differences Over Themes And The GPL”
Normal, thankfully.
This is how the community usually does things, for which all of us can be thankful. GPL violations are, mostly, dealt with quietly though the license has held up sturdily in court.
And yes, both the GPL and CC licenses, along with most other open source licenses are a hack on an increasingly bad situation they are better than nothing at all.
Seeing as these communities thrive on a combination of cooperation and comptetitiveness this is how things have worked. That it hasn’t blown apart in a cloud that would make Mythbusters envious is simply amazing.
Of course, this is how humans have done things for millenia certainly before the advent of things like copyright and patents.
Though Chris has never said publicly why he switched his license (at least not that I’ve seen), most in the community suspect it was because Thesis was found to have a couple huge sections of code taken straight out of the WordPress core. In such a case, derivative work would almost certainly apply, and to limit liability in the case of a lawsuit, he didn’t have much choice.
The debate isn’t over (and won’t until a court gets involved), but what it does show you is how much pressure is applied and how much flak you get if you don’t tow the WordPress line.
Re: Re:
Wait, so he was infringing, but “towing the WordPress line”(calling him on the GPL violation) is bad, even though, in this case, WordPress was right? Huh?
Re: Re: Re:
It wasn’t until after the online debate between the 2 of them that the copied code was discovered, so my apologies for lack of clarity. But the behavior by WordPress isn’t new. Matt from WordPress and Chris from DIYThemes (Thesis) have been sniping at each other since WordPress took the legally untested stance that all themes should be released GPL 3 years ago.
WordPress exerted tremendous pressure on devs since then to conform or else you’ll be publicly bashed at nearly every opportunity.
Re: Re: Re: Re:
Legally untested, maybe, but pretty widely agreed upon by legal experts who work with free software licenss. If Chris really thought it was such a flimsy legal argument, what difference would it make that he was subclassing or copying and pasting WordPress code?
And WordPress isn’t alone in taking that stance. Everything on drupal.org must be GPL, including modules and themes, for example. And, I think it’s a good idea that, even if only the PHP portion of WP themes are likely to technically be required to be GPL, WP only endorses themes that are fully GPL. That way you know you have the freedoms to study, use, modify and redistribute everything from wordpress.org, rather than having to pluck out proprietary parts of a theme from DIYThemes or someone.
Really, if Chris doesn’t want to be work with the GPL or building on free software, why is he in the business of making WordPress themes? It seems odd to blame WordPress for putting pressure on people to use the license that’s helped to make WordPress so successful.
Though, maybe I haven’t witnessed much of the public bashing. I guess, depending on how they go about shaming devs in violation, well, there might be better ways to do it (i.e. privately before publicly…). I’m not involved enough in the community to know much about those methods.
Opinions and Facts
I feel too many people have gone along the route of using opinions for arguments. I read a very good analysis that uses facts instead:
http://www.chipbennett.net/2010/07/wordpress-themes-gpl-and-copyright-case-law/
Re: Opinions and Facts
Thanks for sharing that link, hadn’t seen that post. The author doesn’t really address the extent to which Thesis had copied WordPress code until the comments, but there are a lot of important arguments in the post.
Arrrggggg! CMS sucks! WordPress, Joomla, Drupal are nothing but useless shells that insulate the developer from writing real secure code. It has created a huge expensive third-party group of developers for CMS. Be honest!! Have you ever seen an innovative site that did anything but promote advertising using a CMS. The learning curve is longer than creating the site from scratch. It also locks your web server into their way of doing things. The cost for WordPress and add-ons is flat out too much. Most of the code for 99.9% of the functions for any CMS is available royalty and cost free somewhere on the web. Programmers can be counted on to be vain and constantly promote their prowess. It’s simple to find them and accept their free offerings of code to do anything in PHP, Javascript, CSS and any other language you can think of.
Re: Re:
The cost for WordPress and add-ons is flat out too much.
I thought it was open source.
WordPress, Joomla, Drupal are nothing but useless shells that insulate the developer from writing real secure code.
That’s a good thing, as without these tools most people wouldn’t write secure code anyway. I don’t know if they provide the kind of security you want, but it’s better to have the security layer in an open source reusable package, rather than having every developer write their own every time. Why would you want the latter?
tow the wordpress line
If you build your business in a way such that it completely relies upon wordpress, then you have no choice but to “tow the wordpress line” It’s a hole you dug for yourself when you decided to build off of somebody else.
Re: tow the wordpress line
That’s not entirely true. Simply building something that operates in a WordPress environment doesn’t mean I have no choice when it comes to what license I distribute my work under. However that’s what WordPress wants you to feel – that you have no choice but to comply with what they say. Certainly there’s no case law that supports WordPress’ stance, even if they found a law firm that agrees with them.
WordPress is taking the supreme overlord approach and saying if you don’t do as we say then we’ll drag your name through the mud and make your life as difficult as possible. If distributing a theme under the GPL caused harm to WordPress, one would imagine they’d have filed a lawsuit by now.
Re: Re: tow the wordpress line
Well, first, where does anyone say that “building something that operates in a WordPress environment” is subject to the GPL? You need to be distributing the software before the GPL’s source code requirements kick in (i.e. it’s not AGPL, so you build whatevdr you want on top of WordPress on your own servers without having to share it). And Automattic does this, they have services like Akismet and Gravatar which, if I recall correctly, are not GPL. Clearly, the belief isn’t that anything operating in a WP environment is subject to the GPL, but rather that anything building off the WP codebase — like a theme or plugin — is subject to the GPL.
Second, distributing non-GPL themes (I assume that’s what you meant) and extensions harm WP in the sense that WP is built on software freedom; it was born from the ability to fork a codebase, and relies on that freedom to develop and grow. Non-free extensions to WP are corrosive to an environment of software freedom, because you start hitting dead ends, or getting non-free dependencies that would thwart the ability for users to practically exercise their freedoms. But, except in cases like that of Chris publicly claiming that WP’s license doesn’t apply to him (but his license should apply to everyone else), legal action would be a lot more divisive.
The fact that they haven’t sued anyone isn’t evidence that proprietary themes aren’t harmful, it’s just evidence that they’re using proportional means. Legal action should be a last resort.
I think the claim that they resort to public shaming too quickly is more relevant, because some developers just might not understand the requirements of the GPL. Any examples, outside of Thesis, that you can point to of WordPress being too quick to put public pressure on devs (i.e. before doing so privately)?
Re: tow the wordpress line
By the way, it’s “toe the line”.
the GPL is dead, it just does not know it yet
the legal conflict was averted as Pearson switched to a split GPL license (i.e. PHP is GPL, as required; proprietary license for the rest).
yep, problem solved, make the critical code proprietary, and drop the GPL.
Admit, the failure of the GPL, and the whole idea of using copyright law to uphold a system of “freedoms” but not real freedoms, but specific limited freedoms as defined by RMS.
When it all comes down to it, its copyright that is holding the GPL up, and its copyright that the GPL is trying to undermine.
Which means if the GPL destroys copyright it destroys itself, and yes, then people will just make it proprietary and ignore the GPL.
Yes, Mike is right, the GPL is most certainly a hack job, and the fact that there are so many other alternative licenses than the GPL, like the apachie or whatever. That is far more popular than the GPL.
Anyway, ive never been a fan of the GPL or the 4 ‘freedoms’ as dictated by Stallman. I think it is restrictive, and has done nothing to advance the state of the art.
When once it help huge promise, its time has passed, due mainly to internal politics and bickering.
(and the endless re-invention of the wheel). and massive duplication of work.
Re: the GPL is dead, it just does not know it yet
I don’t get the argument that since the GPL relies on copyright it can’t do a good job of undermining overly restrive copyright. It’s just a means to an end, while copyright law is out of whack. It’s not necessary at all for free software, just often a useful tactic while restrictive copyright is the default.
Bradley Kuhn debunks this better than I: http://www.ebb.org/bkuhn/blog/2008/04/10/gpl-not-end-in-itself.html
And the GPL is a hack (I didn’t say “hack job”), but so is the Apache license. They both have their strengths and weaknesses, as far as removing the barriers of restrictive copyright go.
And other licenses being more popular than the GPL? Do you have anything to back that up?
Re: Re: the GPL is dead, it just does not know it yet
[Copyright is] not necessary at all for free software,
If I understand correctly, the FSF’s objectives for software would be impossible without copyright.
Re: Re: Re: the GPL is dead, it just does not know it yet
If I understand correctly, the FSF’s objectives for software would be impossible without copyright.
I urge you to read Bradley Kuhn:
http://www.ebb.org/bkuhn/blog/2008/04/10/gpl-not-end-in-itself.html
Copyleft is a jujitsu move. Though jujitsu depends on using the force of your opponent against him, it doesn’t mean that you want your opponent to attack you.
Re: Re: Re:2 the GPL is dead, it just does not know it yet
That’s Bradley Kuhn, but I don’t believe he is speaking for the FSF.
From http://www.gnu.org/philosophy/free-sw.html:
“The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this.”
If software were public domain rather than GPL, I could take it, modify it, and sell binaries without distributing source code, and there’s nothing the original author could do.
“Freedom 1 includes the freedom to use your changed version in place of the original. If the program is delivered in a product designed to run someone else’s modified versions but refuse to run yours — a practice known as “tivoization” or (through blacklisting) as “secure boot” — freedom 1 becomes a theoretical fiction rather than a practical freedom. This is not sufficient. In other words, these binaries are not free software even if the source code they are compiled from is free. “
Tivoization couldn’t be prevented with public domain software.
My understanding is that the GPL and similar licenses would be ineffective without copyright.
Though jujitsu depends on using the force of your opponent against him, it doesn’t mean that you want your opponent to attack you.
I don’t think it’s a great analogy, because the power that it’s using (copyright) isn’t necessarily the same thing that the “attackers” are attacking with. That is, not all the attacks that the FSF is trying to defend against rely on copyright at all.
Sorry if this double posts.
Re: Re: Re:3 the GPL is dead, it just does not know it yet
Consider that copyright is a restriction of users’ freedoms, not a granting of authors’ freedoms, and you might then see where you’re not quite correct.
If software were public domain rather than GPL, I could take it, modify it, and sell binaries without distributing source code, and there’s nothing the original author could do.
Yes, but then if the users got the source code (or reverse engineered it), they could then also distribute it, or modify it, etc. – and there would be nothing that either you or the original author could do.
Tivoization couldn’t be prevented with public domain software.
Since users could legally modify the code to route around this “tivoization,” and distribute that code to whoever wanted it, then it could possilby be prohibited. If not, then it couldn’t be prohibited with GPL code, either.
Here’s the thing. If you say “GPL is like copyright, except it removes the restrictions on users,” then it’s functionally removing copyright, because copyright just is a restriction on users.
GPL may seem, at first glance, to be a restrictions on programmers (“you can’t copyright GPL works”). But in fact, the only “restriction” it places on programmers is that they can’t restrict users, since that’s the only thing a copyright grants.
Take this whole Thesis hoopla. Pearson could release the code under the GPL, and still sell it, exactly as he always has. The only thing he could not do is sue a user who modified it or re-distributed it.
Re: Re: Re:4 the GPL is dead, it just does not know it yet
Yes, but then if the users got the source code (or reverse engineered it), they could then also distribute it, or modify it, etc. – and there would be nothing that either you or the original author could do.
Of course, but my point is that if the software is public domain, I don’t have to release the source code at all, like I would if it were GPL. Yes, it’s possible to reverse engineer, but if that were an adequate solution there would be no need for the GPL in the first place, because nobody would need source code.
Since users could legally modify the code to route around this “tivoization,”
No, they couldn’t. It’s not a legal issue either. Tivoization is where the hardware (or unmodifiable firmware) ensures that only original binaries can be used. So you could modify public domain (or GPL v2) software to your heart’s content, but it won’t run on the device you have. My understanding is that GPL v3 prevents tivoization.
If you say “GPL is like copyright, except it removes the restrictions on users,” then it’s functionally removing copyright, because copyright just is a restriction on users.
I don’t see the GPL as being like copyright at all. Without the rights granted by copyright, a developer wouldn’t be able to protect the rights of downstream users (or restrict the actions of downstream developers, if you prefer) because they would have no say in what anyone does with the code. Or at best any power they have would be based on contract law, because of the EULA-type license statement someone has to “agree to” before downloading. I’m no lawyer, but that seems like it’s going to be pretty weak.
you might then see where you’re not quite correct.
Not yet. I still see areas where the GPL provides protections that public domain cannot. Where I’m really waiting for someone to demonstrate I’m wrong is to show how enforcement of the GPL and similar licenses doesn’t depend at all for any of its strength upon copyright law. If someone can show that, I’ll happily retract all this, because I actually would like to be wrong about it.
Re: Re: Re:5 the GPL is dead, it just does not know it yet
Bradley Kuhn isn’t speaking on behalf of the FSF in that post, but I think he’s opinion is shared by folks at the FSF (and he has been a volunteer, Executive Director, and now he’s on the board).
Yes, but the FSF still considers public domain software and non-copyleft (e.g. MIT, BSD, or Apache licensed) software to be free software, even though there’s no legal requirement for people to release the source code. The source code must be available for software to be consider free, but it doesn’t have to be a requirement of the license for the software to be considered free.
You’re not going to be proven wrong there, because all of the strength of the GPL does come from copyright. But what I’m arguing, and what Bradley Kuhn explains, is that GPL enforcement is only a tactic, not a goal. That is, having a way to reverse copyright and create requirements for freedom is a clever hack on a broken system. But, there are other ways to make the source code available. Kuhn suggests that source be registered with a copyright registration, and then released to the public when copyright expires (assuming a reasonable time frame were adopted).
But, there are also social tools and practices that can be used to make source code available. We can already see how that’s done with permissive non-copyleft licenses. Often, the reasons to contribute source code are social or practical. Apple and Google both contribute to WebKit, because they want it to be strong for Safari and Chromium.
Now, clearly, there are problems still from a free software perspective, as both companies bundle up that free code into proprietary browsers. But you can see how a more reasonable copyright law could solve some of the problems. Apple’s model would still present a challenge, whereas Safari is a proprietary browser built on an free software rendering enginer. But Chromium, which is free software, gets packaged up by Google as Chrome, which is not free software. But the code is essentially the same, minus the branding and the license. With a more reasonable copyright law, Chrome’s license becomes even less of an issue from the perspective of free software.
I’m not saying that I know how the challenge would be overcome… but there are ways to create positive incentives for companies to share source code, even companies that are extremely proprietary like Apple, or companies that want to built proprietary products off the free base, like Google. The GPL takes advantage of copyright to create a strong legal incentive, but there could be other innovative ways to create incentives without depending on copyright.
Another social way might be with consumer pressure (though, it’s a bit of a pipe dream now). For example, I don’t think many people would buy a screwdriver from Home Depot if it came with a ridiculous EULA, could only be used with Home Depot screws, and you weren’t allowed to switch the bits yourself… people just wouldn’t be stupid enough to give away their freedom to use their own tools like that. Generally, they’d buy a screw driver they could own. The FSF tries to explain the value of software freedom in that sense too. For a business, there are practical benefits to controlling your own tools, to have a selection of vendors that can provide support or a wide range of developers you could hire to improve the software. For an individual, there can be benefits to “owning” (i.e. being in control) of software rather than just licensing it as well.
I guess what I’m trying to say is that there’s a positive re-enforcement approach that’s possible too. The GPL gets its power fully from copyright, but there are other ways to encourage people to release source code, and the weakening of the GPL would be a small trade for a more reasonable copyright law.
(Sorry for the length and rambling nature of the comment… hope I’m making sense!)
Re: Re: Re:6 the GPL is dead, it just does not know it yet
huh huh, huh huh… you said freebase. 😉
Good post, that is a good description of the challenges that would face the freebrains (is that an appropriate complimentary version of “freetards”?) without relying on the current sort of copyright we have.
Re: Re: Re:5 the GPL is dead, it just does not know it yet
Of course, but my point is that if the software is public domain, I don’t have to release the source code at all, like I would if it were GPL.
Well, you must have gotten it from somewhere, and everyone else can get it from that same place. Or, if they’re not you, they can share it if they ever found it. Or decompile it, if that’s possible.
My understanding is that GPL v3 prevents tivoization.
Actually, you’re right. I didn’t realize that made it into the final draft. GPLv2 didn’t prevent tivoization.
I still see areas where the GPL provides protections that public domain cannot.
With the tivoization issue, you’re right. That’s the one area I can think of where copyright (through the GPLv3) actually grants more freedom than the public domain.
Re: Re: Re:6 the GPL is dead, it just does not know it yet
Well, you must have gotten it from somewhere, and everyone else can get it from that same place.
As I said… “If software were public domain rather than GPL, I could take it, modify it, and sell binaries without distributing source code, and there’s nothing the original author could do.”
There are two arguments here
It’s important to note that there are really two arguments that get intermingled which confuse the issue some. First of all there is the legal argument and I am quite surprised that Techdirt didn’t call out Matt Mullenweg’s general efforts to expand the definition of a derivative work. Many experts have given strong legal arguments that plugins are not derivative works at all. And these certainly are by no means “novel legal arguments.” It really is a stretch to legally justify the Software Freedom Law Center’s opinion that combining in memory constitutes a new copyrightable work that falls under the legal definition of a derivative work. You certainly cannot distribute the memory contents to another person and this combining has been done by the end user. Sure the Thesis theme has some other issues that do make it a possible copyright violation, but that did not even come up until later in the discussion.
The separate issue here is one of a moral responsibility to the free software community. The moral responsibility specifically is that if you build upon open and free software you should in turn make your software open and free as well. The problem is that the moral arguments are often used to justify the legal arguments but that just doesn’t work and it confuses the whole matter.
Mullenweg really just needs to admit that the legal argument is weak (or is at least highly arguable) and focus on the moral responsibility. It’s much harder for someone to argue the moral responsibility end of it, especially when the entire open source community supports it.
But still I’ll try.
During this whole debate I saw a number of people who called Pearson unethical for making a profit from the free work of others. And that’s strikes me as strange.
WordPress is built upon many different open source projects yet Automattic makes a huge amount of money through support contracts and premium services. How is it unethical to profit from a theme but perfectly okay to build a company big enough that you can turn down $200 million offers? Mullenweg profits from the free work of others every day.
Furthermore, quite a few people are making money from books on WordPress yet those are actively promoted on the wordpress.org homepage, some with affiliate links on them. How is profiting from a book perfectly ethical and even promoted yet profiting from a theme is not?
Most people in the community wouldn’t feel that providing WordPress design services, including building custom themes, is unethical, but once you sell the same theme to more than one person it is? The fact is that thousands are making money from this free work of others through specialized WordPress web hosting, consulting, backup services, help desk services, etc. People also profit by selling links on themes they create and host at WordPress.org.
Furthermore, there are a number of software developers that make things such as commercial shopping carts, that have made WordPress plugins to interface with their proprietary software. Mullenweg seems to have no problem hosting those plugins at wordpress.org. The plugins may be GPL but they are useless without paying for the closed source software. And there are quite a few plugins that interface to paid services, such as aweber, that while the plugins themselves being GPL again are useless unless you subscribe to the paid service. But you can find them at wordpress.org.
Then taking it one step further, how many businesses in the world depend on open source software for their critical operations. Why is it okay to host your website on WordPress to make money but unethical to make a WordPress theme to make money?
In the end, WordPress isn’t about open software at all. Free and open should also include freedom to earn a living from your own code you write, even if all it does is plug into an open source platform. Is this really an issue about being free and open or is this an issue of power and control?
Re: There are two arguments here
Agreed that the interesting legal arguments around the main quesiton — are themes subject to the GPL? — were buried. I was trying to keep the post on a level of a decent summary, without getting too deep into the legalities. I could have done a better job of highlighting the legitimate legal opinions that aren’t in agreement with the SFLC. Pearson’s reliance on those arguments was kind of lame, given that he’d subclassed and copied from the WordPress codebase.
I’m not sure what to think of the legal arguments. I think there is a huge amount of grey area. It likely would depend on a specific analysis of the code of any given theme… though, I think it’s unlikely that the PHP code in many themes is that separable, or written entirely from scratch (as opposed to derived from another GPLed WordPress theme). But there are lots of legal challenges that could be made around interoperability and fair use.
But, even the SFLC said the GPL wouldn’t apply to JavaScript or CSS, which does make a theme fairly useless in many ways, hence the continued WordPress.com policy of only promoting commercial themes that are 100% GPL (which implicitly acknowledge that fact that there’s nothing wrong with selling GPL code, even if some in the community don’t quite get that—there’s nothing unethical about making money off free software, I think the accusations were around profiting from a potential license violation).
I agree that there’s a moral, and a pragmatic and social argument to be made for encouraging fully GPL themes and extensions. I support the WordPress.com policy to only endorse GPL code, and other project websites, like drupal.org, do the same. It’s better for the health of the ecosystem if extensions to the platform provide the same freedoms of the platform itself, otherwise you can run into lock-in at the plugin/theme level, for example. So, even if the legal argument for themes being subject to the GPL is weak (and at best with the SFLC’s opinion, it still only applies to the PHP), there are other reasons to apply social and business pressure to theme (and plugin) developers to go GPL.
Good call. The legal and moral/social arguments could be better separated. I don’t think anyone representative of WordPress.com is suggesting that it’s bad to make money from themes though, they even list commercial themes as long as they’re 100% GPL.
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