24 Comments

  1. Jeff Eaton

    As someone who’s spent quite a bit of time talking to actual lawyers about the issue, I can say with a high degree of confidence that your friend Beagle should not be relied on for legal advice.

    The GPL is explicit about what constitutes a derivative work, and themes/plugins are derivative work. The GPL does not prevent you from creating and selling themes that are not GPL licensed, but using them in conjunction with WordPress (or any other GPL’d software) would be a violation of the theme’s non-GPL license.

    I understand that there’s a lot of friction and frustration on the part of people who’ve built business models around restricted-distribution themes and non-GPL themes. It’s painful. But the fact that it’s annoying and frustrating doesn’t change the fundamental nature of the GPL license. If someone wants to leverage a ginormous existing market that uses GPL software, playing nicely with the GPL is necessary.



  2. This is such a great post.

    It illustrates 2 things well:

    1. Function/API calls don’t require license inheritance
    2. Non-compiled code is pretty much impossible to GPL.

    To illustrate my second point:
    WordPress uses PHP arrays, and loops over those arrays to produce an output. Because WordPress is GPL, and uses arrays and loops, every use of an array and loop must be GPL.

    FALSE.

    Hopefully, you see my point.

    But, as the article said, the WordPress project (being a private org) is free to take any action that may discourage the use of non-GPL themes, such as pulling them from the directory, publicly denouncing them, etc. So it’s a risk vs. reward scenario.

    Nathan


  3. While interesting I don’t think this really answers any questions; at least not to any depth of satisfaction.

    Thanks for posting it though.


  4. It’s worth noting that we didn’t go GPL because of the legal issues – we knew there were none – but because of community issues. It’s important to us to be accepted as a part of the community. In fact, I’d have much preferred it if arguments had revolved around community involvement more than legal or contractual issues.

    What Beagle points out so succintly is that a lot of legal speak really is a load of crap and a lot of sabre rattling. I don’t like it, but that’s the world we live in.


  5. All you’ve really told me here is that Beagle has an opinion about the GPL and likes neither uppercase letters nor punctuation marks.


  6. Lets assume for a moment that WordPress themes are strictly GPL.

    Tell me why I couldn’t sell a stand alone HTML/CSS/images package (with restrictive license) which contains CSS & images that just happen to be compatible with a bare bones GPL theme. You could instruct a buyer that “if” they wanted to use the HTML/CSS/images package with the free GPL theme, they simply discard the HTML portion of the package and either upload the CSS & images as a child theme or overwrite the existing CSS & image files of the GPL theme.

    I would think that since the HTML/CSS/images package is not dependent on WordPress, there is no way it would be forced to fall under the GPL. I would also think that the optional act of using parts of that package with a bare bones GPL theme would not magically make the new creation GPL as the two could operate without each other. The end user would not be able to freely distribute the combined files as each carry a different license.

    Another example: If I bought a HTML only template from Template Monster and caused its CSS and images to work on a GPL theme for a client, I highly doubt that client would be free to distribute that final product as a GPL theme since the Template Monster files have a restrictive license.

    Some may argue this is not within the “spirit” of the GPL. I’m simply trying to discover what is “legal” within the GPL.


  7. This is actually not the post I sent Jeff for posting here. It has been edited.


  8. @Jeff – You not only edited it, but you posted the wrong document. What is above is the crude draft I sent you and specifically asked you not to post in public! I’ve re-emailed the correct text to you again.


  9. Ok, Looks like I’ve made a big boo boo. I did publish a slightly edited draft Ryan sent me but I guess that is not what I was supposed to publish. I thought the document he sent me was the final product. I’ve replaced the entire post with his new document so please give it a re-read. Thought about deleting this post and just doing it over again but OOPS.


  10. Lol. Mistakes happen. There wasn’t anything particularly offensive in the first draft, just a a swear word and messages which had been edited incorrectly. We were having a conversation about multiple topics at the time and so some of the original messages were intermingled and entire messages had to be rewritten for it to make coherent sense.

    Thanks for posting it though :)


  11. @Jeff Eaton
    “The GPL is explicit about what constitutes a derivative work”

    Is it really? Because if it was, I would imagine there’d be a lot less fuss going on, and Matt would have mentioned it in the 2 different interviews he’s done on the subject.

    But it’s not … and he didn’t.

    And you neglected the fact that the GPL was specifically written for *compiled* code. Unique code is nearly impossible to create in languages like operational PHP.

    Like Beagle said, I would not ever expect a lawsuit over WP and the GPL to ever be decided against those who don’t believe themes inherit GPL.


  12. Some may argue this is not within the “spirit” of the GPL. I’m simply trying to discover what is “legal” within the GPL.

    Yeah, me too. I’m not even interested in releasing non-GPL code, I’d just like to know the exact answer to it (if there is one). I originally took ‘Beagle’s advice as gospel, but with so many people having a different view on it I’m just not sure anymore. If it was just random themers jumping up and down I’d have not believed them. But when Matt M says something which contradicts this advice I received I tend to listen as I’m guessing he also received expert advice on the topic.

    While interesting I don’t think this really answers any questions; at least not to any depth of satisfaction.

    Yep, the conversation left me with more questions than answers too.

    The GPL is explicit about what constitutes a derivative work, and themes/plugins are derivative work. The GPL does not prevent you from creating and selling themes that are not GPL licensed, but using them in conjunction with WordPress (or any other GPL’d software) would be a violation of the theme’s non-GPL license.

    Hmmm, interesting point. I’ll ask him to clarify the next time I talk to him.

    If someone wants to leverage a ginormous existing market that uses GPL software, playing nicely with the GPL is necessary.

    That’s the approach I’m taking too. And anyhows, it’s nice to be part of the WP community :)

    But, as the article said, the WordPress project (being a private org) is free to take any action that may discourage the use of non-GPL themes, such as pulling them from the directory, publicly denouncing them, etc. So it’s a risk vs. reward scenario.

    Yes, that is a very good point to emphasise. I saw a lot unpleasant blog comments a while ago about WordPress.org breaking the law by not promoting non-GPL stuff, which is completely ridiculous.


  13. You know, what’s sad – and really telling – is that you had to add a disclaimer at all, much less twice in the same post.

    That need is indicative of that about which I am really concerned: the quasi-fascist, cult-like reaction against anyone who dares even voice an opinion regarding the possibility that WordPress’s GPL might not have the reach that it is claimed to have.

    That your released themes are GPL should be more than enough to satisfy the WP community, regardless of your personal opinion on the matter.

    As for me, I’ve come to the following conclusions:

    A theme is not a compiled program, but rather a collation of disparate works, each of which must be assessed individually with respect to inheritance of GPL.

    Image files and CSS files absolutely do not – cannot – inherit WordPress’s GPL. Such files simply have know knowledge or understanding of the existence of WordPress, do not depend on WordPress to exist or to function, and (not having the capacity to link to anything, dynamically or otherwise) do not link to WordPress.

    The GPL absolutely makes no claim of inheritance on image files or CSS files.

    This made me scratch my head:

    The GPL is explicit about what constitutes a derivative work, and themes/plugins are derivative work. The GPL does not prevent you from creating and selling themes that are not GPL licensed, but using them in conjunction with WordPress (or any other GPL’d software) would be a violation of the theme’s non-GPL license.

    Jeff, I would question your lawyers. A fundamental point of the GPL is that it places no restrictions on the use of code, but rather on redistribution of code or of derivative works of that code. Your above statement sounds exactly backwards – unless I’m reading it wrong?


  14. I was scratching my head on that one too. I would imagine I could dictate the restrictions or lack thereof, if I produced a non-GPL licensed work.


  15. Themes and plugins cannot be talked of as derivative works in the legal sense I think.
    But the FSF do say that if the module cannot exist apart from program in this case WordPress then the whole is to be considered the program. Combining non-GPL software with GPL is also a somewhat gray area it seems. You cannot however write a wrapper function around GPL and make a bridge to non-GPL. Then the whole will be considered GPL.

    Also the only exception to modules not affected by GPL is if they are initated using fork and exec. If WordPress only calls the constructor of a theme/plugin class then that is a grey area. But this is however not the case with either themes or plugins.

    If the theme is useless without the CSS or images one could easily argue that those files are also affected by the GPL. I would say that you cannot make themes or plugins to wordpress that uses wordpress functions or is dependant upon wordpress to function and not have the theme/plugin become GPL.
    That is the whole point of the GPL and why you really should use LGPL for your software.
    Which you can see if you look at the following perspective.
    If you integrate stuff into the TinyMCE editor that is a whole different area since the TinyMCE has a different license than WordPress (LGPL) you can put a non-GPL licence on the code that TinyMCE interacts with and a GPL licence with a exception on the code that interacts with both WordPress and the TinyMCE.

    But in essence if a theme or plugin calls methods in WordPress then those files are affected by the GPL.

  16. Beagle

    Hello everyone!

    I’m the aforementioned Beagle.

    I just wanted to come on here because there is clearly a bit of confusion going on.

    Firstly, this was an MSN conversation with a friend, so you’ll have to excuse the punctuation etc.

    Secondly, I’d like to address what seems to be the main point some people are making, because I think there are really two different points here which I didn’t appreciate until I read what some of you are saying.

    The GPL is explicit about what constitutes a derivative work, and themes/plugins are derivative work.

    Quite frankly, that doesn’t matter.

    I can walk around screaming that every sign made with paint I made is a derivative work. That doesn’t make it true.

    The GPL license can say whatever it likes, that doesn’t require the release of any original work as GPL. That’s just the plain fact.

    Some people seem to be saying that, “Once you make a WordPress theme and use it with WordPress, your theme is GPL’d”.

    Err, no, it’s not. It doesn’t matter what the GPL says, WordPress.org has absolutely no power whatsoever to alter a copyright owned by another person. They can claim whatever they like as derivative works, but unless it actually is a derivative work, then it has nothing to do with WordPress. Whether it is a derivative work or not is a question of law, not what the GPL says.

    Basically, WordPress claiming any copyright (which is effectively what they’re doing) over your theme or plugin is like saying that Apple has copyright over all Griffin’s accessories ’cause they were made to fit with Apple products.

    The GPL does not prevent you from creating and selling themes that are not GPL licensed, but using them in conjunction with WordPress (or any other GPL’d software) would be a violation of the theme’s non-GPL license.

    I think you meant to say a violation of the license with WordPress.org. This is the other argument I was referring to, and this is an entirely different kettle of fish.

    Personally, I think there about thirty million holes in that argument, but I’d need to really sit down with it an nut something out. I don’t think it would stand up in court in New Zealand. Europe may be different, as the basis of European copyright tends to revolve around some kind of intrinsic ownership of the work, rather than the commercial justification used in most common law countries. The DMCA is different again, and the American courts are so erratic it’s hard to say which way they’ll go next.

    Anyway, sorry for the ramble, but basically I don’t agree at all with these lawyers who think that WordPress.org has any power whatsoever to dictate what can and cannot be done with their GPL’d software. It’s my experience that lawyers do a lot of sabre-rattling, and that this is basically what this is.

    As someone who’s spent quite a bit of time talking to actual lawyers about the issue, I can say with a high degree of confidence that your friend Beagle should not be relied on for legal advice.

    Err, if lawyers always gave the same advice, and had the same opinion, why would anything ever go to court?

  17. Beagle

    basically I don’t agree at all with these lawyers who think that WordPress.org has any power whatsoever to dictate what can and cannot be done with their GPL’d software.

    Apologies, missed the edit window. I meant to say that they have no power to dictate what can and cannot be down with themes which use their GPL’d software.


  18. @Andreas Nurbo

    If the theme is useless without the CSS or images one could easily argue that those files are also affected by the GPL.

    First, define “useless”. A theme will still render just fine (as in, without errors) without either the CSS file(s) or image file(s). For a plethora of evidence, see “CSS Naked Day”.

    Further, those CSS and image files can be plucked out, and replaced with entirely different CSS and image files – meaning that, by definition, the theme is not dependent upon those specific, original CSS files.

    Second, your argument becomes incredibly twisted, and untenable.

    To wit: if a theme is dependent upon a CSS file (or an image file) that has its own (for the sake of argument, non-GPL) license, as in, that theme is “useless” without said file, then why would the file upon which the theme is dependent somehow inherit the GPL?

    To make an analogy to a compiled program: your argument is analogous to saying that, if a compiled program dynamically links to two libraries – one GPL and the other not – and if that program is dependent upon both libraries to function, then the non-GPL library must inherit the GPL from the GPL library.

    Do you really want to try to make that argument?


  19. My career prior to WordPress involved implementing regulatory documents into code. Tax regulations, employment regulations, etc. One thing I learned, early on, is that while code can’t be ambiguous, legal documents often are. I used to spend an awful lot of time seeking clarification. With the GPL, because of vested interests, there’s no easy way to receive clarification so instead you have to make up your own interpretation – but it’s an ambiguous and unclear document when applied to non-compiled code. Different lawyers will give different opinions, but they are really just that – and the quality of that opinion will vary according to the time those lawyers have.

    I know that a large client who is implementing WP was worried about whether it allowed others to ‘steal’ their copyright work – for example, if the code was leaked (accidentally or otherwise) could somebody, in effect, legally reproduce their site’s functionality and design. The answer is a straightforward NO. In essence, the GPL does not force you into rescinding your copyright, nor is it anything like as infectious as people think.


  20. @Chip Bennett
    Should first clarify I did not intend “become” as in GPL spreads against the authors will rather to be compatible the theme as whole have to be GPL inorder to function with GPL software. Replace become with “be released as”.

    First, define “useless”. A theme will still render just fine (as in, without errors) without either the CSS file(s) or image file(s). For a plethora of evidence, see “CSS Naked Day”.

    Of course it can render I’m not an idiot but you are missing the point. In the theme case the theme will be useless as in not providing the intended function (in almost all cases) when you remove CSS and images. The combination of html,php, images and css is what constitutes the theme or the work, this work then needs to be combined with WordPress to function. If you remove the images and the css it is no longer the same theme/work.
    If the theme makes use of calls to WordPress functions which are GPL the theme has to be GPL or some other compatible license. That is why I would interpret the images and the css also has to be GPL. As the theme is to considered as a whole and would not be the same theme if you removed the CSS and images. You could also write an exception with the GPL saying it is allowed to use these non-GPL stuff given certain conditions. (See last link)
    If I add a module to a GPL-covered program, do I have to use the GPL as the license for my module?

    I’d like to modify GPL-covered programs and link them with the portability libraries from Money Guzzler Inc. I cannot distribute the source code for these libraries, so any user who wanted to change these versions would have to obtained those libraries separately. Why doesn’t the GPL permit this?
    If a program released under the GPL uses plug-ins, what are the requirements for the licenses of a plug-in?
    But this might be even more applicable in some cases
    What license should I use for website maintenance system templates?

    To make an analogy to a compiled program: your argument is analogous to saying that, if a compiled program dynamically links to two libraries – one GPL and the other not – and if that program is dependent upon both libraries to function, then the non-GPL library must inherit the GPL from the GPL library.

    First the software would not be compatible with the GPL as is so there is no inheritance. Second your analogy is flawed. It would rather be GPL software uses a GPL plugin that uses a non-GPL plugin.
    You have to write an exception in the GPL license but the theme/plugin would still not be proprietary but GPL. The problem is also who should write the exception. The theme/plugin developer or WordPress copyright holders since the theme/plugin is an extension of WordPress and not a separate entity.
    What legal issues come up if I use GPL-incompatible libraries with GPL software?



  21. @Andreas Nurbo

    Of course it can render I’m not an idiot but you are missing the point. In the theme case the theme will be useless as in not providing the intended function (in almost all cases) when you remove CSS and images. The combination of html,php, images and css is what constitutes the theme or the work, this work then needs to be combined with WordPress to function. If you remove the images and the css it is no longer the same theme/work.

    Except that:

    1) HTML is output by the PHP, and is otherwise irrelevant

    2) Each PHP file is a separate work. Each image is a separate work. Each CSS file is a separate work.

    (Again, the truth of this statement is understood when one realizes that any individual PHP file, image, or CSS file can be replaced by another such file – especially since the replacement file can have an entirely different license than the original.)

    When this point is understood, the argument that the theme is only considered to be a work “as a whole” falls apart entirely. True, a theme as a whole is a work itself; however, that doesn’t negate the individual works from which the theme as a whole is constructed.

    Each individual work doesn’t necessarily require WordPress in order to function – primarily, the images and CSS.

    (To take the point even further: technically speaking, one could write entirely different functions with the same names as the WP functions, thus allowing even a PHP file to function outside of WordPress.)

    If the theme makes use of calls to WordPress functions which are GPL the theme has to be GPL or some other compatible license. That is why I would interpret the images and the css also has to be GPL. As the theme is to considered as a whole and would not be the same theme if you removed the CSS and images. You could also write an exception with the GPL saying it is allowed to use these non-GPL stuff given certain conditions. (See last link)

    1) The GPL inheritance only applies to those components of the theme that make calls to WP-defined functions. Since neither images or CSS files make calls to anything – in fact, they do nothing except exist – GPL inheritance doesn’t apply.

    2) The theme isn’t only considered as a whole; never has been, never will be. One could take components from one theme and combine them with components of another theme. One could take components from a theme and use them elsewhere. One could take components from elsewhere and use them in a theme.

    3) As for the theme-considered-as-a-whole argument: such argument applies to the rendered result – which applies not to the theme components, but rather to the theme design. WordPress does not own the copyright to a theme’s design, but rather the theme designer owns that copyright. Since WordPress doesn’t own the copyright, it can’t impose its license on the work – that is, the design.

    First the software would not be compatible with the GPL as is so there is no inheritance. Second your analogy is flawed. It would rather be GPL software uses a GPL plugin that uses a non-GPL plugin.
    You have to write an exception in the GPL license but the theme/plugin would still not be proprietary but GPL.

    No, that analogy doesn’t work, because a plugin isn’t as analogous as a library. A library is designed to work with many (or any) programs, so long as the program calls it properly. A plugin is designed to work with a specific program.

    An image (or CSS) file can work with any PHP/HTML file, provided that the PHP/HTML file calls it properly. Such file does not depend on WordPress, at all.

    Even to mix the analogies, and consider a plugin that calls a library: the non-GPL library called by the GPL theme does not inherit GPL from the plugin that calls it.

    Again, do you really want to try to make the argument otherwise?


  22. Ok. I think the discussion has gone on long enough. Time to shut down the comments.

Comments are closed.