@Hyder -

So now if anyone creates a theme that has a 300 pixel right side banner/photo/video and a left sided content area, Georgia as the main font, using ems and in black and white can get sued by these dimwits {yes, I said it}.

They could try to sue - and I would absolutely love to see them try. They would fail, miserably, and we can put this whole business behind us (well, most of this business).

While I'm sure that Thesis has a rich set of custom functions that can, and certainly ought, to be copyrighted, the rendered style is another matter. There's nothing particularly original or unique, and it can be recreated any number of ways.

And as for the oft-mentioned (and by all accounts, very good) back-end admin UI functionality, I don't see how the Thesis back-end UI functionality wouldn't be clearly a derivative work of WordPress.

(I should also say that I think Matt M. is doing the WordPress community a disservice by taking an all-or-nothing approach to WP.org's stance on applicability of GPL to themes and plugins. Situations like these prove the point that we as a community need to have an honest conversation with a definitive conclusion regarding this issue.)