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Jeff Chandler

How and When Mullenweg Learned Thesis Changed Back to a Proprietary License

We now know when Matt Mullenweg discovered Chris Pearson changed Thesis’ license from split GPL to a proprietary one. On April 1st 2014, Siobhan McKeown interviewed Matt Mullenweg for the WordPress history book.

In the interview, we learn about the history of WordPress themes, the GPL, how Automattic unintentionally created the commercial theme market, why 200 themes were removed from the directory for sponsored links and much more.

At the 30 minute mark, McKeown asks Mullenweg, at what point did he decide to go to the Software Freedom Law Center to receive clarification on if the default themes that ship with WordPress are derivatives? He responds:

I believe that was around our engagement with Mr. Pearson. I don’t know if it was before or after the Mixergy interview with our spirited online debate, but it was definitely around that time. I’m not a lawyer! I can read it and I can understand it from a logical point of view, but the Software Freedom Law Center is obviously the world experts in this and having them officially opine is the closest we can get to – it’s the next best thing to having a court case.

I was actually very excited that perhaps Chris would actually go to court, because as you know there isn’t a ton of case law around the GPL and normally, because no one is stubborn enough to actually go to court over it, and I thought, “Oh, we finally got one!” And I was looking forward to being able to discuss in the U.S. law system and provide the precedent for anyone who comes after us to protect the GPL.

Because companies like Cisco and LinkSys and huge companies with billions of dollars in resources have opted to not fight it, so you really do need someone who is going to be stubborn enough to fight it.

At the climax of the debate in 2010, some members of the WordPress community wanted to see the argument go to court so a ruling could set a precedent on when a work becomes derivative.

At the 33 minute mark, McKeown informs Mullenweg that Thesis switched from a split GPL license to a proprietary license. This is the first time since his debate with Pearson in 2010, that Mullenweg discovers Thesis switched back to a proprietary license. He responds:

I have not seen that. So we’d have to do a code analysis again. As you know the Software Freedom Law Center says that non-PHP, so non-linked code which can be CSS, images and JavaScript, isn’t required to be GPL. It doesn’t trigger the viral nature of WordPress’ GPL code.

The stance of the WordPress community was that a theme without images or CSS isn’t much of a theme so, even though something could be legally compliant, if the entire package isn’t providing the same freedoms for users it’s not something that we want to link to or promote. Because it doesn’t really follow the things that we hold dear and true in WordPress.

On January 15, 2014, Chris Pearson received a copy of Mullenweg’s inquiry into thesis.com from Larry of GetYourDomain.com. This is approximately four months prior to discovering Thesis was being sold under a proprietary license. However, the exact date in which Mullenweg obtained ownership of the domain is unknown.

Email shared by Pearson showing Mullenweg's interest in the domain
Email shared by Pearson showing Mullenweg’s interest in the domain

The first publicly known use of the domain that confirmed Mullenweg’s ownership was on October 26th, 2014, at WordCamp San Francisco during the Question and Answer session.

As the interview continues, McKeown asks Mullenweg if he reached out to companies like Template Monster that sells WordPress themes that are not GPL Licensed. He responds:

We got in touch with everyone that we could, and it was definitely – it was a lot of time. There are times when WordPress core stuff is more than a full-time job for me and now is definitely one of them.

I see your link to a [inaudible]. There’s always ways to word licenses around multi-site support where perhaps the code is GPL but the developer chooses to not provide support for more than one site unless you buy a special license. So sometimes people interpret those to be a GPL violation when actually they’re not.

I’m not aware of what Chris has done and I’d like to think that he is supportive – he has done so well from the WordPress community that he’d be supportive of themes continuing to be GPL, especially since his business didn’t crash like he was worried it would.

McKeown jokes that lawyers might have written Thesis’ license agreement. Mullenweg responds, “Well, maybe we’ll dive back into it.” More than 14 months later, Mullenweg has dived back into it with Pearson.

It’s unclear if in this second round of arguments, Mullenweg will take Pearson to court to settle the GPL derivative argument once and for all.

[powerpress]

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8 responses to “How and When Mullenweg Learned Thesis Changed Back to a Proprietary License”

  2. It was actually way before that (from Mark, over Skype in Dec 2012), I just hadn’t looked into it personally and had basically forgotten about it before Siobhan brought it up.

  3. I’m not sure what the implication of this post is?

    It seems you’re saying Matt brought the domain thesis.com because he knew thesis wasn’t under GPL?

    Does that in anyway make it justified?

    We should totally have the discussion about the fact that Chris Pearson is once again going against GPL. And it’s frankly disgusting. (He’s still displaying his “patent-pending color scheme picker” messaging on his sales page for thesis, which is also down right wrong.)

    But you also don’t have to be Matt’s cheerleader and try to make him out to be justified The way he’s reopened the discussion around people violating gpl is nothing more then bullying.

  4. I’m just curious why this even matters? If anything the interesting stuff in the interviews is that not all top dogs in WP agree with how Matt views the GPL but yet Matts view is the only one that matters. Also there is no legal basis for the FSF interpretation of the GPL they just want to GPL everything, they are a lobbyorganisation afterall. Its like asking the drug companies etc if people should be allowed to import medicine(its much cheaper) back into the USA of course they would say no (Im just assuming this).

  5. If you go out into the real world, you’ll see that most people who are aware of what happened believe that what Matt and Automattic did was underhanded and unethical. Circumstances don’t matter, actual facts really don’t matter, it’s all perception and the perception is that Pearson is wrong and Matt/Automattic are wrong. They could have taken the high road, but they chose not to. On the internet, the rule is “the last one to be wrong is the wrong one”. So unless Pearson further bungles things, he wins in the PR department to the average layman. Quite honestly, I’d sell the domain to Pearson for what they paid for it and be done with the whole thing. They look like they “saw the light” and get back positive vibes, Pearson looks like more of an ass, and WP Tavern can get back to reporting on WordPress (or who Matt is dating if they wanna continue down the tabloid route).

  6. The issue that Matt pointed out wasn’t just one of GPL, but the very fact that Pearson tried patenting common WP features (which should not be patentable).

    But it can be done by unethical people using lose wordings to describe a prior art. And in the long run, Pearson (and whoever who follows what he is doing), and then use these patents to punish regular WordPress users and commercial WordPress businesses. Which is the main issue here.

    If you are sued by Pearson’s patent (that is assuming he doesn’t try and get more), would you be able to defend yourself in court?

    That’s why I fully agree to Matt’s decision to buy over thesis.com :) Let’s put people like Pearson out of business. And if needed, sue him for profiteering and abusing the USPTO with vague patent applications.

    • If the issue is that Pearson tried patenting something for which there is prior art… who cares? There are thousands of such attempts going on all the time, I’m sure.

      If there is nothing novel in the patent, and its just a description of something that has been going on for a long time, then the application is entirely defeasible.

      The correct solution is not to take the law into your own hands and bully someone into insolvency or what have you. The correct, moral and ethical solution is to fight the patent, or ignore it and let Pearson defend his patent (as is required) and have it revoked at that point. I highly doubt that such an action would be much more than what has already been spent.

      Every week it seems there is some anti-bullying hoo-ha in the news or trade publications. Whether its your local Pink Shirt Day or the equivalent or the constant hand wringing (and finger pointing) about whether or not this Conference or that *Camp is sufficiently inclusive (either in speaker selection or in providing friendly, alcohol-free places for networking, or what have you), we are constantly telling one another to stop being a$$-hats.

      What I have learned from the defence of Matt’s actions (which I believe are reprehensible as presented) is that it not about whether or not you are an a$$-hat, its whether or not you’re the right type of a$$-hat.

      This is not a new lesson for me, but it always amazes how willfully blind people can be.

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