Copyright And The GPL

ryan hellyerThis is a guest blog post written by Ryan Hellyer, who operates PixoPoint.com. While you’re there, check out his WordPress Template Generator

Disclaimer: All of my current distributed software is GPL licensed and I have no intention of releasing or promoting non-GPL software for WordPress in the future. I know very little about copyright law and software licensing and have no idea if the opinions expressed below are correct or not. I am simply providing the transcript below as I thought those debating the issue may be interested in it.

Whilst reading through the debate in the ‘One Peeved Off Theme Maker‘ topic a friend of mine who also happens to be a specialist in copyright law and author of a GPL licensed WordPress theme sent me a message via MSN. I took the opportunity to grill him with a few questions on the matter of the GPL and it’s effect on the non-GPL premium theme market. After a colourful discussion (he likes to swear a lot), I realized the transcript may be of interest to others. So here for you all to squabble over is the (slightly edited) opinions of a specialist in copyright law. He doesn’t want his name attached to the transcript so I’ve renamed him as Beagle (since he is a legal beagle).

Beagle said:
hey dude

Ryan says:
long time no see

Beagle says:
http://www.techcrunch.com/2009/05/06/meatcards-print-your-business-cards-on-beef-jerky-with-a-frickin-laser-beam/?awesm=tcrn.ch_1Q7

Ryan says:
ROTFLMAO. Laser printed beef?

Beagle says:
I know, how awesome is that?

Ryan says:
How about laser printed fruit rollups?

Beagle says:
hmmm, not a bad idea!

Ryan says:
So you gonna buy any?

Beagle says:
nah, it’s just cool

Ryan says:
You would then be a meathead with a meatcard

Beagle says:
lol, thanks!

Ryan says:
Do you mind answering questions about a legal debate about use of the GPL in WordPress themes?

Beagle says:
indeed

Beagle says:
whats the template generator url again? i’ll download a theme to see what you’ve got in there now.

Ryan says:
http://pixopoint.com/generator/

Ryan says:
but that’s not what I want to talk about. The template generator is GPL and I don’t have any intention of changing that.

Beagle says:
lol what the #*&#*are you building now then!

Ryan says:
Nothing, there’s just a big argument over what is and isn’t allowed and I’d like to get your opinion on it.

Ryan says:
I have no reason to release non-GPL stuff. I just find the subject facinating.

Beagle says:
do explain

Ryan says:
ok

Ryan says:
Many people claim that since WordPress the software is licensed under GPL2, that all software which uses WP functions is a derivative work of WP and therefore all WP themes which use those functions must be GPL licensed

Ryan says:
GPL2 seems to be some sort of infectious license, ie: you can’t use GPL2 code in something without the rest of the code being GPL2

Ryan says:
Now … lots of WordPress themes (particularly the good ones) are not licensed under GPL2

Ryan says:
The big question is … is this correct, and is it enforceable?

Ryan says:
Presumably you could write a theme so that it has a GPL section which allow a templating system to plug into it

Ryan says:
So the template could be used across the board with a variety of different platforms .. in theory

Ryan says:
But most of the themes in question are just using WP functions, ie: wp_list_pages to display pages; the_content to display a post etc. etc.

Ryan says:
There’s an argument here … https://www.wptavern.com/forum/themes-templates/446-one-peeved-off-theme-maker-8.html#post3603

Ryan says:
and a whole truckload more of them about the place

Ryan says:
it is quite a big problem in the WP community at the moment, particularly since WordPress.org now has a themes repository

Ryan says:
they’re even going to the extent of not only banning themes in the repository which don’t have a GPL (or compatible) license, but also themes which contain links to sites which link to other sites which host non-GPL WordPress themes or plugins

Beagle says:
So far as I can see, there is absolutely no way whaotsoever you could claim that a wordpress theme has to be GPL2 just because wordpress is (if that’s what the argument is about)

Beagle says:
legally speaking

Ryan says:
But the theme contains GPL2 code

Ryan says:
and the GPL2 license requires that it not be used in non GPL software

Beagle says:
so? that doesn’t matter in the slightest

Ryan says:
yeah, that’s what you said last time

Ryan says:
But what you say seems to be clashing with legal advice from elsewhere on the net

Beagle says:
if the GPL2 license requires that it not be used in non-GPL software, then you’re in breach of copyright

Beagle says:
because you’re breached the terms of the license

Beagle says:
that still doesn’t mean it’s GPL2

Ryan says:
I’m pretty sure I recall Matt Mullenweg saying (or someone said that he said) that he has consulted with copyright specialists on the matter who claim that WP themes need to be GPL2

Beagle says:
then he has some pet lawyers who are spinning @&$t for him

Beagle says:
it’s a fundamental principle of all copyright law that seperate copyright exists in a collation of copyrighted works

Ryan says:
He may have said that WP themes which are not GPL2 are in breach of copyright then

Beagle says:
well that’s a bit different

Beagle says:
but using php you would write new functions that would just call the could wordpress functions, and name them something different, right?

Ryan says:
yes you could, but your new functions would still contain the old functions, coz it would be done something like this:

Beagle says:
that’s ok

Beagle says:
in fact, now that I think about it you wouldn’t even have to do that

Beagle says:
oh, well, maybe

Beagle says:
if you look at the functions as a block…

Beagle says:
but then you’re only using pieces of it so….

Ryan says:
I figured you could have one piece of software which is GPL2 which grabs the theme code (which is non-GPL) and dynamically adds the WP functions into place

Beagle says:
hmm, no, I’m fairly certain that if it went to court wordpress.org would be $*$&%d

Ryan says:
So something like [ryanspage] could be grabbed on the fly and converted to wp_list_pages()

Beagle says:
exactly

Beagle says:
but here’s an even more important point that I just realised

Ryan says:
The two pieces of software could be entirely seperate

Ryan says:
the GPL2 bit would just grab that code and process it

Beagle says:
here’s the real kicker

Beagle says:
you write a theme, mmk?

Beagle says:
there are two seperate copyrights

Ryan says:
k

Beagle says:
one in the code

Beagle says:
one in the design

Beagle says:
even if the GPL2 license “forces you to release” the code as GPL2

Beagle says:
you still have copyright in the design

Beagle says:
so anyobdy who used your code, which is now GPL, to produce that theme is breaching your other copyright anyway

Ryan says:
By ‘design’ do you mean the CSS file and images?

Beagle says:
no

Ryan says:
That is often used as an argument by themers, that their CSS and images aren’t GPL’d

Beagle says:
that is also true

Beagle says:
I mean what you see when you look at it on the screen

Beagle says:
but those are seperate copyrights again

Ryan says:
Heh, that’s kinda abstract

Beagle says:
nah, it’s not abstract at all

Beagle says:
you have to look at it like lego

Beagle says:
every piece can be a copyright

Beagle says:
and you have copyright in the overall combination of pieces

Beagle says:
suppose everyone on a team takes a photo, right?

Beagle says:
and I put it into a collage

Beagle says:
I own copyright in the collage

Beagle says:
they own copyright in the photos

Beagle says:
provided that what i did was sufficiently “transformative” so as to make it a new artistic work

Ryan says:
Can you release the collage for sale and prevent others from modifying it even if the license of one of the pieces says that others must be allowed to modify it and that any derivatives of that photo must also be allowed to be modified and used freely by others?

Ryan says:
that was a bit of a mouthful, hopefully you followed it

Beagle says:
yes

Beagle says:
you can most definitely do that

Beagle says:
basically

Ryan says:
But isn’t that a breach of that particular photos license?

Beagle says:
you can say as much as you like that “any derivatives” blah blah blah

Beagle says:
no, that’s the point

Ryan says:
Since you are doing something which that chunks license does not allow

Beagle says:
provided it’s sufficiently transformative, the copyright in the first work has to relevance

Beagle says:
you’re looking at it wrong

Ryan says:
I follow what you mean

Ryan says:
I’m just repeating what is usually argued by others

Ryan says:
I’ve been reading a lot of this stuff about this lately

Beagle says:
well, if you go to the pirate bay and read the letters that get sent by lawyers all the time, you’ll realise that A) a lot of lawyers know %*%$ all about anything and B) a lot of lawyers will deliberately misrepresent the law to intimidate others into giving up their rights

Beagle says:
TBH. I also think that a straight GPL license wouldn’t stand up to much in court either

Beagle says:
’cause the purposes of copyright is to protect commercial exploitation

Ryan says:
how come?

Beagle says:
if commercial exploitation is allowed, you’ve given up a $*%# load of your rights anyway

Beagle says:
courts really aren’t interested in this whole creative commons / gpl type of attitude

Beagle says:
GPL might stand up in court

Beagle says:
maybe

Beagle says:
but you could put a lot of arguments against it

Ryan says:
that is what gets said a lot … maybe

Ryan says:
it hasn’t been tested apparently, apart from in Germany where it did stand up in court supposedly (or so I’ve read somewhere)

Beagle says:
the point is that anything that’s GPL’d never has any commercial use that is worth enough money to fight it in court

Beagle says:
yeah, european copyright laws are very different though

Ryan says:
Is NZ copyright law closer to USA or European law?

Beagle says:
Umm, moving closer to USA

Beagle says:
but copyright law in general is a $&%t mess when it comes to interwebs stuff anyway

Beagle says:
nobody really gets it right

Ryan says:
no kidding!

Beagle says:
IMHO, wordpress.org is rattling their sabres, nothing more

Beagle says:
trying to frighten people

Ryan says:
Sort of, Matt Mullenweg said they have zero interest in pursuing this in court

Beagle says:
heh, because he knows he’d lose

Ryan says:
but that they are keen to encourage everyone to follow the GPL since it is for the benefit of the community

Ryan says:
I suspect he wouldn’t care either way.

Ryan says:
It’s more of a moral point for him I think

Ryan says:
GPL benefits the community, hence they’re keen to encourage the release of GPL stuff

Beagle says:
yep, and that’s fine if you want to have a big moral argument

Ryan says:
But that doesn’t make it tick off premium theme developers anything less

Beagle says:
but if you’re talking law, the he doesn’t have a leg to stand on

Ryan says:
particularly since they’re not only being banned from the theme repository for having links in their GPL themes to sites hosting non-GPL stuff, but actually extending that right through to linking to sites which link to sites which have non-GPL stuff.

Ryan says:
This is why the template generator only outputs GPL themes

Ryan says:
I bailed out of your advice from last time about allowing a range of licenses

Beagle says:
well I think the theme developers are trying to have their cake and eat it too

Ryan says:
It may be legit, I honestly don’t know. But but I’d get hung drawn and quarted by the WordPress community if I didn’t released WP stuff as GPL. And there’s little point in my using another license anyway and it makes a lot more sense to give back to the community.

Beagle says:
yeah fair enough

Beagle says:
if you’re building themes on a platform where everybody shares code etc and the whole idea is for everything to be GPL, but you want to sell it, you can’t then complain when people take private actions (which are well within their rights) to cut you off

Ryan says:
Do you mind if I copy and paste this transcript, remove your name, edit the swear words and send this in as a guest blog post at wptavern.com?

Beagle says:
sure, go for it

Ryan says:
thanks dude

Beagle says:
haha, no worries

Beagle says:
yeah, legally it seems a pretty long bow to draw to say themes have to be GPL

Beagle says:
especially as you’d have to prove that individual functions are capable of supporting copyright

Beagle says:
most stuff you will read on the interweb about GPL is a pile ^&*%ing $&%t

Beagle said:
want to know something cool?

Ryan says:
sure

Beagle said:
you have facebook right?

Ryan says:
yep, should I login?

Beagle said:
yeah

Beagle said:
http://en.wikipedia.org/wiki/Konami_code
read the top part of that

Beagle said:
go to facebook, and enter ‘up up down down left right left right B A’ then hit enter and start typing/scrolling

Ryan says:
lol, where the heck am I entering that?

Beagle says:
just got to facebook and type it with ytour arrow keys like you’re playing a game

Ryan says:
doesn’t do anything

Beagle says:
try again … up up down down left right left right b a enter scroll

Ryan says:
bubbles?

Beagle says:
yep, how cool is that

Ryan says:
LOL

Ryan says:
Heck that gets annoying when you want to type something

Beagle says:
http://news.cnet.com/8301-17938_105-10234749-1.html?part=rss&tag=feed&subj=Crave

Ryan says:
lol, I should have bought that for my sister in-law

Beagle says:
that would be the coolest pregnant woman on the planet

Ryan says:
I’m guessing you are stumbling?

Beagle says:
indeed!

Beagle says:
remember our conversation about climate change?

Ryan says:
yeah

Beagle says:
Check out wattsupwiththat.com

Beagle says:
it’s now the most widely read science blog on the net

Beagle says:
it’s on wordpress.org’s top 10

Beagle says:
(overall)

Beagle says:
anyways, I’d better go sleepytime

Beagle says:
always good to chat to you man

Ryan says:
goodnight

Beagle says:
ciao

And just to reiterate … although I was the one asking the questions here, I do not know if the replies are correct or not. I’m not interested in releasing non-GPL themes, plugins or anything else for WordPress. My business PixoPoint.com only distributes GPL’d software and we have no intention whatsoever of releasing non-GPL software regardless of the legalities. The GPL fits perfectly with our business model and we are happy to abide by both the GPL and the requirements of the WordPress.org theme and plugin repositories.

24 Comments


  1. 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.

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  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

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  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.

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  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.

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  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.

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  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.

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

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  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.

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  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.

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  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 :)

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  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.

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  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.

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  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?

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  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.

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  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.

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  16. 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?

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  17. 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.

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  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?

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  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.

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  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?

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  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?

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

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