It’s officially kicked off in Twitter. It was between two parties. On one side it was Chris Pearson (@pearsonified), producer of the Thesis WordPress theme. On the other it was Matt Mullenweg (@photomatt), creator of WordPress.
I don’t really understand the ins and outs, but it seemed to all stem from two tweets.
- The first was that pearsonified tweeted that a developer Bill Erickson, was taken off the WordPress Consultants list because he promoted Thesis.
- The second was a tweet where an exposure in Thesis’ was shown. This was retweeted by Matt Mullenweg with an (admittedly very sarcastic comment on Thesis). From then it went onto a discussion about the GPL.
What Is The GPL?
The GPL, or the GNU General Public Licence is the licence that WordPress is under. The licence is simple, you’re free to do what ever you want with it, make money with it, go nuts. However derivative works need to be under GPL.
What Is The Problem?
Of course, what counts as a derivative work? WordPress says that premium themes & plugins are included in this. Of course, by having effectively open sourced themes, it will allow other people to propetier from your work. For free software, this isn’t much of an issue. I’ve used code before that people have made within WP Email Capture. It’s made the software better. Of course, when I finish WP Email Caputre Premium, I’d like to think that I can make a little bit of cash out of it, and not have it ripped off.
Am I Breaking The Law?
A lot of software I use on this blog such as OIO Publisher & Maxblogpress Ninja Affiliate aren’t in the GPL. I use them because they’re useful. Technically though, they’re breaking the law. Am I breaking the law for not only using them but promoting them (I am not a big fan of Thesis, hence why I don’t promote it)? Developers are rightfully a little up in arms over this, as they believe it hampers their right to make an income (see Why The GPL Doesn’t Apply To Premium Themes).
I’ve been advised by experienced members of the WordPress community when I do finish my plugin whether I should release it or not under the GPL. I’m not sure whether I should or not. What I do know is that the GPL needs some sort of clarification, because I cannot make head nor tail over it.
Rhys Wynne, the author of this blog, is a 20 something web designer from Colwyn Bay. 
One point: The rule in the GPL that Matt is ticked about is the distribution rules that Thesis is released under. If your software is kept entirely internal to your organization, the GPL wouldn’t apply… this is how Google can keep their Secret Sauce internal, etc.
“Technically though, they’re breaking the law”
That’s what this whole debate revolves around. If you assume the official WordPress stance that themes are a derivative work is what the GPL means, then yes, you’d be violating the GPL license.
HOWEVER, the WordPress stance is as far as I can tell, 1 interpretation of what a derivative work is. Another interpretation is here: http://perpetualbeta.com/release/2009/11/why-the-gpl-does-not-apply-to-premium-wordpress-themes/
I don’t see how you can consider a theme a derivative work, simply because it runs on top of, and calls functions from, WordPress. If that was the only qualifier, then any program that runs on top of a GNU linux distribution would have to be GPL as well as it would be a derivative work.
Technically, no, that’s not true at all.
Number one, the GPL has never been tested in court in this context, and therefore is not the law. It’s just a license issued by one software developer (a form of implied contract) that some would like to see voluntarily honored by those who build other software that complements or improves the original software. Unless the GPL is proved to be legally enforceable in a specific context, no one can be forced anyone else to make their software GPL.
If the GPL is tested in court to see if its legally enforceable, it will be shot down in most cases (specifically with regard to premium WordPress themes, and especially full-blown software like Thesis), because it attempts to expand copyright law (specifically, the well-settled law related to what constitutes a derivative work) in a way that would never be acceptable intellectual property doctrine.
In short, it would be bad law that would have a ripple effect across copyright. No judge would do that, and there’s no legal precedent that would allow a judge to do that regardless.
This is why WordPress resorts to propaganda instead of lawsuits. When they lose the lawsuit, the GPL game is over.
Finally, this has nothing to do with using the software as a customer. Any legal haggling would be between the two software developers. There are no consequences whatsoever to people who have purchased the software.
I did an analysis of Thesis code and found several areas where Thesis outright copied WordPress GPL licensed code: http://wp.me/pg2iw-1R
I know of people who’ve taken parts of my GPL code and released them in projects of their own, with no credit or nod in my direction, AND charged for them. It really fucks me off. Why the fuck should I put hard work in only for someone else to make money off it?
Of course, I could just take it all down and start charging people, but that goes against everything I believe in.
Stuck between a rock and a hard place.
Matt does cite some very relevant references to the fact that Pearson is breaking the law by building his theme on WP and not using the GPL. This interview http://mixergy.com/chris-pearson-matt-mullenweg/ with Matt and Pearson on Mixergy spells it all out. Right or wrong though, Pearson comes across as an arrogant twat and I think that will damage his business more than anything.
What this comes down to is whether or not Chris actually copied/pasted code directly from WordPress. If he did, then he would be in clear violation of the GPL license. However, if he did not, as Brian Gardner already mention, then he’s in the clear.
Merely calling a GPL function or file (via include() or require() functions) is stretching it and it would mean that darn near every piece of PHP software ever written and released would fall under some funky variation of the license. In a sense, calling a function or including a file is merely hooking into the software, but not actually developing work based on the software. (Note, this is merely my opinion–and only one of many–and IANAL.)
Also, ditto that it’s not breaking the law. There is no legal precedent. As of now, it’s just a software license, a contract between the people who create and distribute software.
Frankly, I’m in the camp who hopes it goes to court.
Tiny correction, meant to type Brian Clark, not Brian Gardener. Sorry about that.
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 Pearson’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 let’s see just how many people agree with Chris, and how many with Matt and the GPL.
I’ve been watching this closely because I intend on creating a premium version of my commentluv plugin.
I listened to the interview over skype between matt and chris and I agree with Lynda above. Chris sounded like an arrogant twat and Matt sounded a lot wiser and calmer. Maybe Chris is feeling the undeserved power of ‘lots of money = must be right’ ??
I think that Matt is right though, you can release something under GPL and still make a profit from it by providing a walled garden support system and updates like Woothemes do.
I’ve seen the whole package of woothemes available for download for 15$ from someone who took advantage of the GPL’d nature of their themes but, when you try to get the latest version or fix a small issue on your ‘cheapo’ versions then you’re going to run into trouble because you can’t access the forums or download the latest update without having a username for their site.
So even though someone can make profit from your stuff if you GPL it, they’re not going to be able to do much with it as long as you keep improving and supporting your own software. They’ll eventually have to come and get the ‘full fat’ version and take advantage of free updates when WordPress inevitably updates it’s core code.
One thing to my advantage with regards to my own plans for a premium plugin is that it communicates with my server ala akismet so I wont have to GPL that part of the code!