Mark Jaquith wrote an excellent technical analysis of why WordPress themes inherit the GPL. This is why even if Thesis hadn’t copy and pasted large swathes of code from WordPress (and GPL plugins) its PHP would still need to be under the GPL. (Which apparently is Marxist. You learn something new everyday!)
73 thoughts on “Themes are GPL, 2.0”
Awesome posts on GPL related information. I have personally been asked many a times to recommend a good premium WordPress theme and we would recommend any theme except the thesiswp because not just the theme but the developers suck. The Twitter replies from him prove everything.
You say “Marxist” like it’s a bad thing.
Thanks Matt! “The Force will be with you. Always.” ―Obi-Wan Kenobi
Nope. There are different views on the matter if you venture outside the GPL fanbase and into non-biased territories.
I always feel impressed every time I witness the fear of some people towards communism, even when it is not a menace to anyone since it has almost vanished – or suffered capitalist mutations – as a political alternative to nations.
I agree – Mark produced a very well written opinion piece on why he believes that themes inherit the GPL and I personally believe that themes ‘should’ be released under the same license that governs the distribution of WordPress, if only to continue building upon the foundation on which the WordPress community was built. If I were to commercially release and distribute themes or plugins, I’d opt to release them under the GPL.
That said, Mark did not at any point in his post reference the specific language within the GPL v2 licence that helped him form his opinion.
I won’t say Mark is wrong, but I will say that any article, no matter how well written, is pure fiction unless it can be backed up with a) language from within the license to back it up, b) case law that proves it.
On Thesis: I agree, once code from the WP core was introduced to Thesis, it, or at very least parts of it, inherited the GPL and Chris should get with the program and re-license his software. There really is no easier or more equitable way out for him.
On Derivative Works: Still on the fence as no matter how many times I read the license, I can’t find the language to support what Mark Jaquith and others like him have said.
I was explaining why I think they are a derivative work on a technical level. There isn’t a legal precedent for software like this. The issue of derivative works can’t be solved by a reading of the GPL. That’s a general copyright issue. The law wasn’t written with this type of software in mind.
That doesn’t mean that all opinions are on equal footing — it means that when forming your opinion you have to take the technical specifics into account and try to figure out how it compares to more traditional software situations. There’s a difference between “pure fiction” and reasoned analysis. So it is my position, after reasoned and informed technical analysis, that the way a theme and WordPress combine to form one application with no differentiation between core functions and theme functions is no different than how changing the source code of a compiled app results in a derivative work (and I don’t think many would doubt that adding/disabling source code in a compiled app would result in a derivative work).
It’ll be up to the legal system to determine whether or not that technical understanding is consistent with the intent of copyright law.
While I don’t really agree with your conclusion, I do appreciate the fact that you have a level head and your analysis is a strong effort.
To be honest, I don’t think what anyone says matters until this is taken to court. Hell, maybe I’ll sue Thesis just to get it over with 🙂
I’ve been fascinated by this argument for the last three days. I must have read more that 100 posts and articles and probably close to 1000 opinions (Probably more, and the overall consensus is that you are more than likely correct and Chris should either discontinue offering Thesis for WP or change is license to GPL.
My question for you is this. At this stage of the argument, as public and well documented it’s been, can you/WP?Automattic just decide to let it drop and walk away?
I have read many opinions that you should be the bigger man and do just that, but I fear that if you do it can and probably, nay, would create an air of unease in the open source community and more specifically the WordPress community?
I guess what I’m saying is that wouldn’t it open the door for other devs to say, “The hell with WordPress and their license they’re not going to do anything anyway so I’ll just slap my whateverIwant license on my thing”? I truly believe it would set a very dangerous precedent. I know that no one including you wants to go to court but… What do you think?
“can you/WP?Automattic just decide to let it drop and walk away?”
Scaled up, that would be roughly akin to a major corporation yelling at a local super-chain about anti-trust violations for a few weeks, and then suddenly dropping it out of thin air.
Granted, everyone is on Matt’s side here, but… well, if this were poker, he’d be pot committed. No folding allowed.
Everyone, or just the WP community? I’d say the debate is evenly split according to the ratio of WP fans and Thesis fans, which, admittedly, are a fraction of the overall user base.
Seriously I don’t see how anybody can argue with you at this point about it. I mean both Andy Peatling and Drew Blas went through the Thesis code and WordPress code and found just copied/pasted/modified code from the WordPress core.
It’s simple: Thesis incorporated code licensed under the GPL, it’s derivative of WordPress.
It’s simple in the case of Thesis due to the “copy pasta.” Other cases are less clear, legally, due to the complexities of what constitutes a derivative work. I outlined why I think it is clear from a technical perspective.
It was an extremely convincing post, this really does need to go to court though Matt, Pearson’s ego trip needs to be brought to a full stop and soon, and remember, most of the community is behind you on this.
Marxist? Huh, I didn’t know that Automattic had become the government, but okay. It’s ironic that GPL is only codifying what all brilliant people have been doing for generations: building on the works of others.
There used to be a t-shirt saying, “Sure, I’m a Marxist; I’m a Groucho Marxist.”
I sincerely hope you win the inevitable case against Thesis. It would be a landmark for the validity of open-source licenses. 🙂
For people like Chris, making the sale is the only thing that determines whether an action is moral. They really do believe that there is no right or wrong, only whether “the market responds” (they made a sale).
It’s the same as the used car salesman saying “I’ve never had a complaint and my cars fly off the lot.” That’s the only reality, not whether they lied or had outrageous markups or sold terrible product to little old ladies.
Within that version of reality, there is literally no morality aside from the sale, except when they are challenged, and then they’ll define a “wrong” – living in any way that prevents them from making any sale that any human will accept.
The GPL, which attempts to define a wrong in terms of human consequences (it hurts people; it’s disrespectful) or existentially (it’s just plain wrong) will ALWAYS be viewed not only with disagreement but with contempt.
It doesn’t surprise me at all that Chris’s one argument is that he doesn’t need to follow the GPL because it is at odds with his personal convictions about the market (in other words, because it might keep him from making a sale). He really does think that the GPL (or any other form of “Don’t be a jerk” licensing) is not just incorrect, it’s laughable and not even worth the effort to consider. I can’t imagine him ever even taking the time to understand the GPL, which is why his legal argument was googled. He’d be infuriated by the necessity.
I’m pretty sure this will come down to litigation, because you have a fundamental disagreement about the essential nature of what a blog or website is, what a sale is, what distribution is, even what respect is. You are not going to be able to resolve this in democratic discussion because you’re not even talking about the same things.
Joanna said: “For people like Chris [Pearson], making the sale is the only thing that determines whether an action is moral.”
That is a very offensive statement to make about someone you probably do not know. Personal attacks totally undermine the credibility of any arguments you present.
You might want to rephrase in the future. You could have just as easily said it much less offensively as “For some people, making the sale…”. Sure the implication is there, but it’s not so brutally offensive.
(On different points, I support both sides of this debate. I think both sides are right and both sides are wrong. However, both seem to be acting quite stubbornly.)
Just to be clear, I personally DO NOT like GPL, although since I didn’t invent WordPress and I love the service, platform, etc., I’ll respect the license (and yes people GPL is enforceable).
My only question is why did Automattic choose GPL over Apache 2.0? The latter seems to make more sense from a business perspective, but then again WordPress has been successful under GPL.
Would Apache help make WordPress even more successful?
The license decision predates Automattic, it was inherited from b2. But not entirely a coincidence, as I personally believe that the GPL creates more robust OS communities over time and so all of the projects I’ve been personally involved with (or started) have been GPL. Automattic also releases all its from-scratch projects under the GPL.
A clear understanding of the license would protect their jobs — uncertainty is not a good environment to do business in. That’s one reason people avoid proprietary licenses in the first place. If you were building your business on Thesis, they could change the license tomorrow (they have in the past) to completely destroy your business model. At least with GPL you’re working against a fixed platform.
@ Jim: As someone who DOES NOT support GPL (I prefer Apache), all I can say is that your argument has no substance.
This is about copyright, and GPL is one that is enforced in the US (Cisco, et al. backed away from challenging it at the last minute).
This isn’t a “little argument,” as it deals with property rights (and yes, WordPress is property, albeit community property).
Find a copyright lawyer before making silly arguments. Or find another blog platform/CMS (there are plenty).
GPL is in WordPress’s DNA whether you, I or Pearson likes it or not. If he wants to “stick it to the man” (the Man being Matt), then he can pay a lawyer and watch Thesis go down in flames.
I’m all too familiar with the “large swathes of code from WordPress,” but to which plugins are you referring to? Just curious whether I screwed up there too…
This is the best article I’ve yet seen promoting the “WordPress themes inherit GPL” argument.
Too many articles go off-topic or mix personal opinions with facts. Mark stayed on-topic and got straight to the point.
Must be why he’s one of the
‘top 3 most important figures in the history of wordpress’
hey Ryan. 🙂
@Jim Like I said in my comment above, I don’t think it’s possible for Matt to just walk away at this point as it would set a dangerous precedent, I wrote a lot more about it here http://ht.ly/2ddml
Actually only a handful of the premium folks were non-GPL first, the majority have been GPL from the start. I believe your argument is provably false because there are so many successful businesses built on GPL software, including my own.
Your asked to provide some empirical evidence so you deleted the comment instead.
Wow, glad I took screenshots before you deleted them =)
Cheers smart one.
I emailed you about why your comments were removed, but your email bounced. (I guess it’s not real?) Perhaps you should start your own blog. You present your ideas in too uncouth a manner to be a fit here.
I listened to the interview you had with Chris this week about Thesis. I was really impressed by your consistent attempts to help Chris make the leap.
Even going as far as saying
‘ I would happily promote Thesis, send people to Thesis, and love Thesis, whatever. I’d switch my own site to Thesis’
All he came back with was this:
‘I don’t care if the whole world sets me up and says, ‘You’re president of the world now,’ because it doesn’t matter to me.
This just mystifies and saddens me as I have said before I wish this could be resolved peacefully as it is such a shame to see 2 people with some much talent and passion for WordPress being at odds with each other.
There is so much to gain from working together which I truly believe is what you are trying to achieve Matt and I thank you for that effort under the circumstances.
Matt, I recently watched the interview conducted by Andrew Warner on WordPress.tv and I am with you as are most of the WordPress fans.
Hundreds of developers have invested hundreds of thousand manhours into making WordPress and disrespecting their efforts is not ethical.
I would prefer every theme except Thesis 🙂
Nobody wins a fight.
Cemeteries are full of people who stubbornly fought for a principle.
Why risk sending GPL to the cemetery over one rogue developer?
Since I happily use both WordPress and Thesis, I hope whatever happens as a result of this disagreement doesn’t worsen either of them.
I want to create content, not worry about legal disputes between the people who make WordPress and those who make themes.
Why not use a theme that doesn’t have a legal dispute?
Thesis works well, and has improved my search engine rankings. It has good support forums, and they release new versions regularly.
It is also easy to customize without a lot of knowledge of CSS, and works well with the WordPress plugins I depend on.
@Jim, I just can’t agree with you about people losing jobs and and business being in danger of closing if Matt was to win a court case. There are thousands of successful business that prosper under the current licensing structure so I don’t understand your logic. As it stands now only Chris would have to make a decision as to what to do with Thesis and the few remaining other hold outs.
As for you calling them “Boys” I think that’s very disrespectful. I have been following this since the beginning and I continue to follow all this on Twitter. These are two men embroiled in a heated debate and disagreement. In the heat of the moment each of them may have said something they shouldn’t have, but make no mistake they are men trying to run their respective businesses as they see fit.
And I say once again that that I don’t see how Matt can simply “drop it”. I think there’s too much at stake and a lot of people are paying attention.
But we can continue that discussion here http://ht.ly/2d9N7
In theory, I think the GPL is kind of collectivist, in that it’s saying ‘if you release your work we will MAKE you share it on our terms, because we don’t trust you to do so of your own accord’, and its denial of the right of the individual to decide for themselves. The good of the community trumps the wishes of the individual. That seems pretty left-wing to me.
In practice, it easily ends up being an anti-competitive tool in the hands of capitalists. That’s the thing with Marxism, it only works on paper.
Matt, just like what was tweeted and blogged by Jane, in GPL, user freedom trumps developer’ ownership.
But I have a question here. How can we protect the developer from the users that have evil intention.
For example: WhooThemes adopts GPL. Someone out there makes the GPL as the reason why he/she can legally resale all WooThemes products with much cheaper price. (The link: [link removed])
It seems to be unfair, because WhooThemes do all the hardwork, but someone out there who did nothing (except have copies of all WooThemes) can legally sell all WooThemes products with much cheaper price.
We’ve always had this issue with WordPress.com too — couldn’t anyone just take WordPress MU (now MS) and create a competitive service using the very code we’d contributed thousands of man-hours to? Of course, and if they can do a better job serving customers with our own code then they deserve it. In the meantime it’s a free market and it’s not about what’s cheaper or even free, but what provides value. When VIP launched it cost twice as much as its nearest competitor, now the price is closer to 5x. Why? People value service, authorship, development, momentum, support…
I have a couple of questions about that.
Is the project your code? Aren’t there committers that aren’t employed by wordpress.com? Making it the communities code?
Do you really worry about somegenericmunetwork.com doing a wordpress.com competitor or think that you have the same competitive disadvantage that others do that don’t own the .com for the brand?
I know other people can use the code to compete but it seems that wordpress.com is in a better position by a huge factor and has to offer a fraction of the features and service of the nearest competitor. Not that you do, because by being in the lead allows you to afford to out feature the other networks.
It seems that as long as someone doesn’t fork and rebrand wordpress wordpress.com will never truly have to compete with another wordpress mu network. (Accept maybe in a highly customized vertical that has a smaller potential customer base).
Who is the next largest competitor run mu. Edublogs?
GPL is great, big fan here.. but guess what Matt, your blog footer is a hypocrite because it somehow has WordPress spelled WORDPRESS (all in caps if the stupid filter catches this) 😉
Are you referring to http://core.trac.wordpress.org/ticket/13971 (“WordPress” being turned into CamelCase “WordPress” breaks URLs)?
Why yes Tom, I am referring to that… 🙂
and yes it caused a pile of 404 errors (happens when you have a boat load of posts with WordPress in the url)
GPL does not protect your product. You can put it behind a pay wall, as Mark Jaquith suggests, but that does not stop someone redistributing your theme or plugin for free or at an undercut price. Do it like this, is just not good business sense.
Of course, I will get a pat on the back from you by going GPL and being exposed to the 20+ million WordPress users, but my paid product is open to abuse and I will lose money. An example is where you can get ALL the themes that Woo Themes produces for $10.
To put this whole issue to bed, you either sue Pearson and everyone else who is(presumably) in breach of GPL or just stop boring us with your pseudo-intellectual rhetoric about GPL.
There is a difference between “doesn’t protect your product” and “negatively impacts your business.” You’re conflating the two. Someone buying all of Woo’s themes for $10 is dumb for three reasons: they could get them for free if they wanted, if they like the products they’re not funding the creation of more, and they’re missing out on the support / forums / service of the original source, in this case WooThemes.
Not surprisingly, when these “customers” go elsewhere you business doesn’t miss them much because 99% of your revenue is coming from regular folks.
It’s possible to compete with free, even against your own creations for free, look at how iTunes has done it. You can type any song name in the world into Youtube and start listening to it within seconds — why does Apple make billions off songs? How about against Amazon MP3 which is DRM-free, higher quality encoding, and cheaper? They’re providing value and convenience for normal folks, a better experience than if they went elsewhere. The specifics don’t matter as much, it’s the approach that you can duplicate across any business model.
What about how your plugin, Akismet, works? This is a perfect way to protect your product. You need a API or License key to make it work. Isn’t Akismet in breach of GPL?
Why couldn’t I use the same model to sell themes or plugins? Just curious.
You could, however I think it’s user-hostile and easily worked around unless the external service provides something truly useful and impossible-to-replicate on a single server, like the collective intelligence of billions of spammed blocked (Akismet), a several-gigabyte language model (After the Deadline), or real-time offsite backups storing 11 copies of every file (VaultPress).
Just to complement what you’re saying here, I have a dev license to a number of themes including Woo, Thesis, Headway and some others. I have seen these same themes available for free downloads around different sites. I have downloaded these themes myself just to see what I was getting and in every single case with the exception of maybe one or two the themes were outdated and in many cases had php code added that made them spam bots when installed. Some had even more nefarious code.
It simply does not pay to download premium themes from anyone other than the developers who make them. Then and only then are you assured of getting the most updated and clean files available. Not to mention great support.
Yeah I know Thesis was hacked, first time ever and I assure you last time too.
Thesis was hacked?
When? And in what way?
Chris got hit by the pharma hack a few months ago, and blogged about it.
Around when this post started the diythemes.com site was compromised and exploit code was inserted in the theme download so anyone who downloaded it before they noticed had a backdoor in their site — this was talked about on Twitter but no public posts I saw.
The code in Thesis 1.8b1 and before we reviewed when looking for GPL violations (and finding them) we noticed a number of insecurities, especially around how the admin pages and options were done. Now that Chris has been notified about these I’m sure they’ll be fixed in the next version. Perhaps that benefit of making his PHP GPL will encourage him to go fully GPL with the entire theme.
This is the point that I’m trying to make, but isn’t getting through. I don’t know if you’re a developer or not, but I’m starting to think it’s paradigm based…I’m not a developer…I hire them so that I can publish. To me, it seems black and white…to developers, it’s not even close.
I have a question: Am I allowed to license my theme under the aGPL? or is this the same argument as if I wanted to use a closed source license?
I asked this in the WordPress forum but nobody responded: http://wordpress.org/support/topic/425224
I think they should be GPL as well, but you should check with the FSF.
Theisis is bound by the terms of the GPL – you can legally take its code and include it with wordpress.
Not that you would want to 🙂
Matt I know you’re busy and all but I used your contact form regarding your theme offer. If I’m going to do it I’d like to get it done, thanks.
I got hundreds and hundreds of requests and it’s taking me a while to go through them, especially if you requested one not from one of the big guys. Thank you for being patient, I’m doing a bunch every day since last week.
No problem that’s all I needed to hear 🙂
Our current debate aside, I’d like to ask this:
Were you given the option, would you have published WP under a different license or would you have stuck with the GPL?
I don’t ask to pin you in a corner, but because I’m just curious if it affects your reaction to non-GPL producers.
I don’t understand why it was Thesis you went after instead of Headway or a plugin developer. Why always Thesis?
I absolutely would stick with the GPL, though I might go with v3 instead of v2. It flared up with Thesis because the supporters started attacking me because we removed someone from the Code Poet directory for promoting it when it was violating WordPress’ license.
I listened to the interview Andrew Warner did with you and Chris Pearson, and I find it interesting that Mike Wasylik’s post about why the GPL does not apply to Premium WordPress themes was referred to.
Wasylik refers to the Game Genie, which modifies a running binary and does not interact with source code at all.
Using the GPL license – with Nintendo having nothing but default copyright – there is no doubt that anything which fuses with the source code should strictly follow the GPL.
As a member of the Pirate Party in Sweden, I definitely find it to be a good piece of interview material to use for referral in our copyright debates in Sweden. 🙂
The resolution to the thesis ‘issue’ still leaves us with some unanswered questions (that unfortunately can only be definitevely answered by the courts).
So, can we all rise above our individual opinions / preferences and create something that will give useful guidance to developers and users alike?
Matt, what I’d like to see is a WordPress plugins / themes “code of conduct”, the creation of which is based on input from the community. It would not be legally binding of course, but it should be possible to set down some guidelines to ensure that the principles of WordPress remain intact whilst also providing room for commercial activity (both code and services).
In my opinion, the main question that needs addressing once and for all is – when should non-GPL code be acceptable in themes and plugins?
Again, any consensus reached would not be legally binding in any way, but I believe it would be very beneficial to everyone.
I think we can do it. 😉
Something doesn’t add up with all of this. There are pieces missing on all sides. Court was GPL’s hope for eliminating future problem children like Pearson. The ball was dropped and I’m feeling uneasy about it.
PS: Touche’ to WP communism. Let’s eat some Thesis.
Any suggestion for comparing StudioPress/Genesis to WooThemes? I own Thesis developer licence and would like to switch to one of these.
Aaronbrazell’s Premium Theme Framework comparison didn’t include WooThemes 🙁 http://j.mp/9154Yt
Anyone with a half-way decent grasp of HTML, PHP and CSS can create a set of theme files, but the actual design should absolutely NOT be GPL!
Also, what if you’re hired to create a specific custom theme based on a custom design that’s not released to the public, but only for their clients?