Copyright And The GPL

This 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.