Tackling the Issue of WordPress Derivative Works

GPL License Plate Featured Image
photo credit: BenFrantzDalecc

In 2009-10, there was an intense debate between the co-creator of WordPress, Matt Mullenweg, and the founder of DIY Themes, Chris Pearson. The debate centered on whether or not Thesis needed to be 100% GPL licensed. Thesis lifted lines of code from the core of WordPress, which some people claimed made Thesis a derivative of WordPress. Pearson disagreed with the assessment which lead Mullenweg to insinuate he would take the matter to court.

Five years after that memorable debate, Richard Best of WP and Legal Stuff, has published a thorough analysis of WordPress themes, the GPL license, and what is a derivative work. His post is a breath of fresh air and the best I’ve read so far on the subject. Best doesn’t sell themes or plugins in the WordPress ecosystem giving him a neutral position to discuss the matter. He also has a legal background, but does not offer legal advice through his site.

Determining what defines a derivative work is complex, but according to Best, no one truly knows the answer to the question:

The reason we don’t truly know the answer is that the courts haven’t decided a case that is squarely on point (there are potentially analogous cases, of course, but – as far as I’m aware – no GPL or similar case directly on point).  It is only the courts (in the absence of legislative intervention) that can finally determine the matter.

Courts might apply what some might say are orthodox notions of what it means for something to be a derivative work or they might incrementally (some might say dangerously) develop the law on this point but we just don’t know. And even if the courts of one country made a definitive ruling on the point, courts in other countries – where other lawsuits might be commenced – could decide differently. As a result, uncertainty remains.

The debate against Thesis never went to court, but it spawned several conversations throughout the WordPress community, like this one from Chip Bennett. This is why some people rallied for a court case to settle the matter once and for all. As far as WordPress is concerned, I think it’s unlikely a court case will ever take place.

Influence Instead of Lawyers

Mullenweg has other ways of influencing people to license their WordPress products 100% GPL which doesn’t require a lawyer. A good example is when Jake Caputo was banned from speaking or participating at WordCamps because he didn’t license his themes 100% GPL on ThemeForest.

After going back and forth in public debates, ThemeForest eventually added the ability for authors to choose between split-license and 100% GPL. After changing the license on all of his products to 100% GPL, Caputo was allowed to speak at WordCamps again. It’s this type of influence that prevents arguments from reaching the court system.

Only a Court Can Decide

There aren’t many posts these days debating the merits of GPL and WordPress. Best does a great job explaining why (emphasis mine):

I think the GPL/theme debate has reached the stage where it’s fair to say that a significant proportion of the WordPress community now frowns upon premium theme providers who either don’t GPL-license at all or (probably to a lesser extent) split-license their themes. That might not be good for business and that, for some, may be the bottom line.

For some people, this frowning may be caused by a particular view of what the GPL requires but for others – and I think this is a particularly important point – it may be caused by a recognition of the enormous opportunities that WordPress makes possible and the open source spirit and generosity that pervades much of the WordPress community. I think we’ve reached the stage where, for some people, this is more about a community norm than it is about a strict reading of the GPL (not to mention the tedium of listening to more and more competing GPL arguments when, ultimately, only a court can decide).

If a debate like the one in 2010 were to happen again, I think we’d see a huge outcry from every corner of the community for a court case to settle the matter. After all, without that, everything else is a moot point, right? If you sell commercial WordPress themes and plugins, I highly encourage you to read his post. Also read his thoughts on a somewhat related topic, the assumptions of GPL and automatic inheritance.


17 responses to “Tackling the Issue of WordPress Derivative Works”

  1. Chris Pearson is such an unpleasant thing. I remember his rant-y bullying video posts while wearing his wife-beater tee, many years ago. Does this have anything to do with GPL? Not directly. But it’s hard to picture him as being in the right about anything. Phew, that felt goooooood to say! Matt – give the jerk hell!

  2. It’s been a few years, I don’t think bashing Pearson is going to accomplish anything. Instead, the focus should be on the fact that it’s going to take a court case or two to figure out what makes a plugin or theme a derivative work of WordPress. That’s important, but I don’t think we’ll see a case anytime soon, as I cover in the article.

  3. So many developers have huge egos. All they care is $? What about the community that gave you the ability to create those themes and make money?

    I think all themes/plugins from any CMS inherit the same license their “master” CMS.

    Drupal themes/plugins inherit Drupal Licenses
    Joomla thenes/pplugins inherit Joomla Licenses

    and so forth.

    If you meet a developer with a super inflated ego, guess what? move on to the next one.

    You can create the best theme/plugin/etc…in the whole entire universe but if your ego gets in the way, no one will buy it.

    No one buys it means your theme/plugin/etc… will be as useful as a thong on an Antartican penguin.

  4. The GPL fight with Pearson was the best thing that could’ve happened to Automattic. From day one they’ve very savvily cast the debate in good/evil terms, and he made a convenient villain. (Just look at the comments here to see people still complaining about his “ego”. So what?) The truth is, enforcing the GPL in the WordPress community benefits Automattic as a business, and that is why they do it. I think the GPL is great too but let’s be realistic about how the world works.

  5. For the sake of the larger open source community, the future of GPL, and the ideal of open source I hope we can get this tested in court at some point just so we can get a firm decision and stop the never ending opinionating and interpretating. The spirit of the GPL is pretty clear, but due to the convoluted and obsessively finicky way in which the legal system works it is too vague leaving room for these debates that go nowhere.

    I wonder if there was a way of launching a legal matter around the GPL without an adversarial stance.

  6. I was originally curious exactly what would be decided in a court case. After reading Richard’s post and the comments, I believe it’s whether a WordPress theme or plugin is inherently a GPL work if it’s distributed. Is that right? That seems to contradict what he says within the post that “automatic downstream licensing” is absent from the GPL.

    All this makes me wonder how much a court case would really help? A US based court decision wouldn’t impact international businesses, right? There’s no GPL police to enforce any of these rules. I’d guess the majority of us would hope a court rules that themes and plugins are derivatives, but what if they didn’t? I think I prefer the self-policing nature of our community, and I think it’s much more powerful/influential than a court decision would be. If a court ruled that themes and plugins didn’t need to be released under the GPL, wouldn’t we still encourage everyone to go GPL anyways?

    I only bring this up out of curiosity and sorry @Automattic’s legal team. I’m sure if this did go to court there would be a few billable hours in their future…

  7. 1. Neither the court of public opinion, nor its close relative of trial in the media, are ineffective, antisocial, or illegal.

    2. Like Democracy, the GPL is not perfect, on several levels. Like Democracy, its as good it gets, and worth fighting for.

    3. Business is business, while programmers and Internet people hear other tunes. Their temperament and training, both, minimize business ability; the community is not quick & clever to recognize either good or bad business practice.

    Business, though, like the military, is something most any dog or pony can gradually be trained to, unlike computer-savvy, which is heavily inborn and poorly acquired or instilled. Like a temperament for music, some have it; others marvel.

    People like Bill Gates, Mark Zuckerburg, the Apple personalities and others, are intensively worked on the business-anvil, grind-stone & hearth, just because of their singular position. Even without natural business-talent, they go on to become demi-gods of the computer & Web industry, business-wise. Small-fry Web-biz players lack the immersion in real business-culture, to get the big-picture.

    It is what it is. It is part of the strong-leader (benevolent dictator (for life)) pattern so noticeable in IT. Those who put on the suit, or salute, readily savvy this reality, while rand-and-file tech-players stray into traffic like toddlers.

    • Well said,

      However it should be noted that these deemed as Demi-Gods are responsible in large form albeit hundreds if not thousands of support people sat behind those names as these corporations grew and continue to grow. We remember the names but not often the deeds or work or support behind it.

      The debate over GPL I had as well not with WordPress but Joomla. The problem is quite evident. Neither Joomla or WordPress are software engineering miracles for example. Similar applications such as DotNetNuke, Liferay are simply put superior, incomparable both in engineering and capabilities of the base engine if you will.

      When Open Source Matters decided that everything in the extensions area need be GPL in one form or another I questioned it public like. All forms of web designers attacked me. Why? Because they want be able to fiddle and fuddle with code? Because they wish to simply download others work easily “nulled” (pirated) as PHP does not offer a non-human readable form such as java bytecode, flash or .NET assemblies?

      Understand something… and I am not knocking WordPress. What makes WordPress great are all the themes, all the plugins. Without all of those themes and plugin’s there are tons of lesser known CMS systems that do what they do at their core just as capable and some more so. Same with Joomla. Whilst the owners of Joomla or WordPress benefit with the main application’s broadband usage what CREATES that mass usage are those third party entities.

      If the plugin repository went offline tomorrow and wordpress third party plugins ceased to exist does anyone here think it would stand as the leader in CMS/Blogware for very long? If all those plugins and theme’s by wave of a magic wand appeared over at e107 CMS instantly in scant time e107 would be atop the pile.

      This form of control over third party developers, theme designers etc. affords you the third party developer or designer several matters. Your work stolen, never see a dime from that theft. Type in “WordPress Nulled into Google”. The folks at WordPress are not in the business of making you the designer or developer money for your work.

      Joomla… Well, their administration jet sets around the globe doing seminars (PAID) on Joomla on a per head basis. They get to travel, see the globe, do speaking engagements getting paid. Yet, what makes Joomla viable is not Joomla but the themes, extensions provided by third parties. Those third parties are not allowed to protect their work so as its not stolen, yet, its their work that makes the platform do remarkable things.

      For a developer someone tinkering in my code or your code may open up a security matter for example. So now there are a bunch of poor slobs who’s websites get hacked or worse.

      With all that said… in reality its now too late as I described in another post that I think the site deleted?

      Microsoft’s .NET has went pretty much open source. These Open Source projects where such control over developers has been executed has shown the “giants” in the Information Technology industries HUGE markets ready for them to snatch and snatch they will.

      The most notable differences being the development environment is superior to anything in PHP, I mean not even comparable. Atop this the executable code produced is now considerably faster than PHP (on tune with Java) and has a lesser resource usage (ram etc) footprint. .NET is a full framework, any PHP or for that matter singular Java framework is of no comparison. Its comparing apples and oranges, more like rotted apples in fact. The end assemblies are managed compiled assemblies, not like PHP at all. WordPress for example has been ported to MONO.net by Phalanger. They did not do so to go, “Oh here… production ready deal”. They did so to display what the future will entail (http://www.wpdotnet.com/). Look at the performance benchmarks. That says it all and .NET has been open sourced. Mono is the Linux .NET.

      .NET is enterprise ready, PHP, forget it. Now imagine that wordpress benchmark using multi-threading (multiple cores). PHP doesnt do threading well, PHP is written in C++. Sorta crazy.

      A language written via a compiled language (C++) and said language (PHP) then compiles its human readable sourcecode into a compiled bytecode that runs through an interpreter library.

      That concept of a web application language is basically now dead, it doesnt realize it yet but its dead.

      In any event. NOW this Open Source market is under assault by entities that play to win and those entities know how to win. Yet the end products coming down the pike wont be the territory of the little lass designer or developer. Uh uh. Public could care less. They will go with whatever is easy and cheap preferably free. The models such as WiX, Web.com etc and there will be a hoard of them over the next two years due to what Microsoft has done.

      It truly is “if you cant beat them join them” that is going to happen as if one doesnt join them one will need find new employment.

      I’ve saw alpha results (friend of mine works for the place) of a CMS they are developing under MONO.NET and right now in its Alpha stage well… Every PHP CMS I have ever tried can pack it in and this is not a particularly glorious development firm. Its completely drag, drop, properties and associations. Anyone can use it, if one can use Microsoft Word one can use this and make websites that will easily rival anything you have ever saw in Joomla or WordPress. The business model is similar to WiX, Web.com etc. Its all cloud based.

      What the WordPress core needs to realize is while GPL has worked great for them, good for designers, developers (not great as I can assure you for every one template or plugin you sold three have been stolen) its now in the hands of giants. Adobe is another. I just had this conversation with a group at a seminar. I asked why people think Adobe has went to Creative Cloud at such a reasonable price.

      Responses were, “They will get tons more users of Adobe’s products now as its affordable” (True), “That they will continue to be the leader in their market as more competition appears” (True) as well as some others. But not a single one hit the real reason. The real reason is the unification of smart technologies which is all cloud based, even Windows will be cloud based (client/server). Adobe will launch a “Create your own Web” that anyone from a beginner to very advanced studio can use and make effective sites via. Real workflows. Flexible workflows and all at quite minimal prices as its about the mass market, which happens to be the same market that open source taps. Oh my. Want more? Why are Microsoft and Amazon partners? Amazon enjoys the state of the art cloud architecture, nothing even close to it, not even Google. Microsoft enjoys the development environment to make unification of technology a reality. What are they targeting? The Internet as a whole.

      Meanwhile nations and legislators patiently wait the “Fallout” of the billion hands and fingers into the net creating things that do things so regulatory measures can be instituted and the hardware/software architectures in place to make it reality. No surprise there, every mass communications mechanism mankind has known gets regulated. Same is on the horizon for the net.

      The days of the privateer are on the wane even though many dont realize it. The cannonballs such as Creative Cloud, MONO, .Net open sourced most do not realize what this means, what the ramifications in fact are. They dont ask themselves questions or pay attention.

      Why would Microsoft for example open source their absolute gem, .Net framework in support of a linux framework (Mono which is .net on linux) to make you all happy? To make all the wanna be coders happy? Not at all. None of that. It is because they have the best development environment on the planet (Visual Studio), free community editions of it, free for academic usage team editions etc and they know it. Heck, anyone who’s coded in PHP or Java and even took an hour with Visual Studio knows it. They open sourced .net as it will kill PHP. Again, its like a FIAT .vs. a Ferrari, literally, both free. Which do you choose.

      It is IMHO the largest cannonball to hit the net in 20 years.

      Open source they are good with. Same reasons WordPress is or Joomla is. Lots of developers making things, altering things etc. BUT one BIG BIG Difference. With .NET your not REQUIRED to go that route by nature of the code itself.

      Take it a different way. Your a developer or theme designer. Right now for WordPress. Over there is another product, “Noodle Press”. Both enjoy a huge marketshare.

      One is PHP based, the other .NET or Mono.Net based. Your a commercial theme developer or plugin developer. You dont do this because its fun, It pays the bills and preferably then some.

      Are you going to develop for the one that says, “If you develop for our application you MUST GPL your code” it must be able to be altered by anyone buying it. Hence, now its pirated all over the Internet. Or will you develop for the one that says, “Look, your assemblies are compiled machine readable code”. A ton harder to null and pirate and in addition that platform is faster, uses a smaller resource footprint, is more secure by its nature, enterprise ready, and due to its framework being so extensive can do alot (alot) more in as far as your themes and plugins go. That anything you make is cloud ready. Anything you make is easily integrated into other applications. Mobile ready, smart technology ready by nature?

      Thats where we are all on a ride to.

      Microsoft, Adobe and several others are making the moves they are making to capture as near to full marketshare as can be stated by that term. That happens to also be the same marketshare everyone reading this happens to take part in.

      Thus the model that WordPress and Joomla in Open Source had diligently enforced upon designers/developers which has “Made their product enjoy the success enjoyed” at the expense of developers/designers enduring theft ultimately has shown the “Big boys” how they can TAKE that market and ultimately result in the destruction of said success they enjoyed (past tense).

      See… What privateer designers, developers etc. dont realize is when they are being benefited or used or both.

      As I said, I dont knock wordpress or Joomla per se. The folks that created this stuff benefit from it. Joomla core jet sets the world making money hand over fist yet its folks like you all that make it what it is, making the cool theme’s and plugins etc. WordPress, I dont know if they seminar around the globe or the business model that they monetize from WordPress. But, its the themes and plugin stuff that make it really do wonderful things and you all create that stuff.

      Your told, whether you want protect your work or not… sorry, no you cant.

      But, without you then they are nothing but a basic blog application.

      See… they reach this watermark area of control. If 100 developers or designers leave based on saying, “Sorry if you protect your work you cant be part in this” there are 100 others ready to jump in. Thats the watermark.

      The entire concept of GPL is sorta kinda this allow people to modify what they need or might need be able to modify. Not to say, “Welp… you cant do this or that to protect your work”.

      Yet, having code that is whatall, IonCube protected is a NOPE.

      The big open source players enjoy success via the efforts of those using their stuff. PHP itself. Its not a great language, its a inconsistent mish mosh in fact. Inefficient, behind the times even in threading (multiple core CPU’s) which have been around now a long long long time. But it enjoys its place because of developers. Not that it is “good”, C#, Visual Basic, Go, plenty of other languages far far superior. You dont see Those folks going, “Nothing coded in PHP can be obfuscated, Ioncubed etc, in fact, Zend (who does PHP) has an obfuscator they produce to protect code.

      Its your work. But your not allowed to protect it. If you protect it then for the 100 you sold the other 300 using it might not be using it as they wont pay for it. For free they will take it. They will steal it if its not free and they want it. But to the core application… well… thats 400. We’re not making a cent directly on your sales. Instead we derive our success based on those 400.

      Some consider it a fair exchange.

      My personal opinion is the entire concept of GPL is choices. If you produce a theme and I can adjust or alter what I need to and there is code that protects your work from being stolen (Ioncube encrypted callbacks for example) whats so evil about that? Isnt the theft more evil?

  8. Here’s a strong counter argument to themes and plugins being forced to inherit GPL: https://enriquesthoughts.wordpress.com/2014/01/05/wordpress-is-gpl-must-your-plugin-be-as-well/

    It’s really ridiculous to enforce GPL inheritance on (all) themes and plugins. Just because a piece of software communicates with wordpress doesn’t make it derivative of wordpress. Sure if you’re modifying the 2015 theme than your product should inherit GPL, but if you create a new theme from scratch it quite clearly isn’t.

    Mullenweg and the Tavern being so dogmatic about this issue, to the point of blacklisting devs from speaking or getting press coverage just because they want to protect their work, will really end up hurting the ecosystem.

    If you think premium plugins and themes are good for wordpress then you should allow those who create them the *freedom* to protect their work. If you really believe in the GPL then paid themes and plugins shouldn’t even be allowed. It should all be distributed freely, just like wordpress itself. You can’t have it both ways.

    Maybe I’ll create a nice reputable website that distributes all the premium GPL wordpress software out there for free. I can’t be sued, any DMCA takedown requests are invalid, and everyones happy…..right?

      • My comment above was overly emotional, I’m sorry about that. However, this was a comment you made a few months ago here(https://wptavern.com/versionpress-adopts-the-gpl-software-license#comment-55937):

        “Had VersionPress decided to not use GPL or a compatible license, I likely would have deleted the post and that’s the last time I’d publicly promote the project.”

        I’m not sure how else that can be described. If you refuse to talk about non-gpl’d wordpress projects are you not implicitly blacklisting those authors?

        I just think it’s too inflexible a stance. The GPL isn’t appropriate for all projects. And forcing the narrow philosophy of the GNU/FSF on such a diverse and wide ecosystem of software like WordPress excludes a significant portion of users and authors from participating in the community.

        Proprietary and open source don’t have to be enemies.


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