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WordPress, Thesis and the GPL
July 16, 2010 7:28 AM   Subscribe

Who gets to make money off WordPress? Dust-up brewing in the world of WordPress as theme author Chris Pearson and WordPress head honcho Matt Mullenweg battle out the question: Is a theme a 'derivative work'?

If so, then WordPress themes must be freely distributed under the same license as WordPress, the GPL 2 license (inherited from b2evolution, a previous project WordPress is based on). If not, then Chris (author of the Thesis theme at DIYThemes) and similar designers can sell their themes and not release their code back to the project. Other theme studios have already gone GPL and make their money on consulting, support and customization. Also at stake is the business of premium/paid WordPress plugins.

Andy Warner hosted the happy couple at an interview that turned sour (includes transcript).

Matt presents research from the Software Freedom Law Center:
When WordPress is started, it executes various routines that prepare information for use by themes. In normal use, control is then transferred via PHP’s include() function to HTML and PHP templates found in theme package files. The PHP code in those template files relies on the earlier-prepared information to fill the templates for serving to the client. On the basis of that version of WordPress, and considering those themes as if they had been added to WordPress by a third party, it is our opinion that the themes presented, and any that are substantially similar, contain elements that are derivative works of the WordPress software as well as elements that are potentially separate works.
Chris cited lawyer Mike Was's blog and opinion that GPL does not extend to WordPress themes due to Fair Use guidelines and things ratcheted up when he claimed he is one of the top 3 most important figures in the history of WordPress and told Matt "Either you sue me or you don't. Or you continue to talk, or you don't."

Chris retired to a blog for a shirtless rant as Matt tweets missives and the discussion spilled over into Twitter (#thesiswp) and Hacker News.

One developer ran a comparison script between the WordPress source and the Thesis theme and found several instances where Thesis uses exact code copied and pasted from WordPress.

Andy from the WordPress team says that simply extending one of WordPress's PHP classes qualifies as a derived work.

WordPress UX designer Jane recounts her conflicts with Pearson over this issue.

Drupal, another GPL system is of the opinion that themes and modules built for their CMS are also derivative works.
posted by ao4047 (147 comments total) 11 users marked this as a favorite

 
I love the GPL. It causes so much consternation among the invested.
posted by kuatto at 7:34 AM on July 16, 2010 [4 favorites]


One developer ran a comparison script between the WordPress source and the Thesis theme and found several instances where Thesis uses exact code copied and pasted from WordPress.

This seems to be a big sticking point for Pearson. The interested parties were all set to go round and round about whether utilizing WordPress calls and running together with WordPress in php is sufficient to constitute a derivative work, but I think the incorporation of actual WordPress code kind of moots that argument.
posted by monju_bosatsu at 7:37 AM on July 16, 2010 [4 favorites]


Also, the title of the "Shirtless Rant": "What Do Solutions Have to Do with Ideology? NOTHING!

Really? Except when a social mechanism soaking in ideology cranks out code that you then take to build a 'ideology-agnostic' business. convenient.
posted by kuatto at 7:39 AM on July 16, 2010 [1 favorite]


Why did you frame in terms of "making money" and "sell their themes" when those are not only irrelevant to the GPL but also make the term "freely distributed" confusing? You can sell GPL matter. In fact, I just this morning bought GPL'd matter from the FSF.

It's a question of access rights, not money.
posted by DU at 7:39 AM on July 16, 2010 [4 favorites]


So. Both people think that the answer which offers up the most convenience to them individually, is correct. And fans of each person tend to side with the person they're fanatical about. Colour me unsuprised.

I agree with the "sue or don't sue" thing. This isn't going to get sorted out by a polite conversation between two ego-driven sides hiding behind respective layers of confirmation bias.

But I have to say. That whole looking through the source code for small blocks of code which might have been copied from somewhere else is weak sauce. It was a shit defense when SCO used it, and it's still a shit defense now.
posted by seanyboy at 7:40 AM on July 16, 2010


Wow, so anything created to work with GPL stuff must be GPL? That seems like extremely faulty reasoning. Surely it doesn't mean any blog creating content using Wordpress must be GPL, right? If the answer is no, then it's odd that they're insisting themes must be GPL also.
posted by new brand day at 7:40 AM on July 16, 2010


So could this issue cause any headaches for a design agency that builds a client's site around Wordpress with a custom theme? Or is this only about selling off-the-shelf themes? I'm not particularly au fait with all this licensing shenanigans.
posted by le morte de bea arthur at 7:43 AM on July 16, 2010


Both people think that the answer which offers up the most convenience to them individually, is correct.

How is it more convenient for Matt?
posted by DU at 7:44 AM on July 16, 2010


Thesis extends WP in many useful ways that aren't built into WP core...

If Thesis adopted the GPL, that means the code is open to be distributed and reapplied by anyone for free. That means Thesis features could legally be added to WP Core without paying Chris royalties.


OIC. Thesis isn't just a theme, it actually extends WP.
posted by DU at 7:45 AM on July 16, 2010


Surely it doesn't mean any blog creating content using Wordpress must be GPL, right? If the answer is no, then it's odd that they're insisting themes must be GPL also.

1. The GPL is explicitly a software license and is written in terms that relate to computer programs.
2. That a program calling library functions, or inheriting from library classes, such as those provided by Wordpress for theme authors, is uncontroversial and well-known; that is why the LGPL exists as an alternative for library authors who do want to permit what Pearson is doing here.
posted by enn at 7:45 AM on July 16, 2010 [4 favorites]


Damn it. I meant to write: That a program calling library functions, or inheriting from library classes, such as those provided by Wordpress for theme authors, which are licensed under the GPL is a derivative work which must also be licensed under the GPL is uncontroversial and well-known.
posted by enn at 7:47 AM on July 16, 2010 [3 favorites]


The GPL was written for a time before dynamic linking, uniquitous scripting, and plugins. It's very ambiguous in today's complex software environment.

OTOH it seems at first blush that the theme author is being a bit of a douche. The guy who wrote WordPress says "hey man, not cool"; it'd be nice to respect his wishes. And cutting and pasting GPL code into your non-free package seems pretty uncool, although I guess you can get a lawyer to start parsing snippet length and fair use. Still, the whole point of the GPL is to be a happy hacker commune, so don't pee in the pool please.
posted by Nelson at 7:47 AM on July 16, 2010 [1 favorite]


Wow, so anything created to work with GPL stuff must be GPL? That seems like extremely faulty reasoning. Surely it doesn't mean any blog creating content using Wordpress must be GPL, right? If the answer is no, then it's odd that they're insisting themes must be GPL also.

I'm not that well versed in WordPress, but as far as I know themes aren't just images and stylesheets. They hook in pretty strongly with the Wordpress code itself. There's a huge difference with actual blog content. An OpenOffice extension is a different beast from an OpenOffice document.
posted by kmz at 7:48 AM on July 16, 2010 [1 favorite]


That Drew Blas post is both excellent and damning. Hashing out library calls/includes and such is important, but not required to decide this case.
posted by DU at 7:49 AM on July 16, 2010


Why did you frame in terms of "making money" and "sell their themes" when those are not only irrelevant to the GPL but also make the term "freely distributed" confusing?

Money is at the heart of this particular issue even if it isn't at the heart of the license.
posted by ao4047 at 7:49 AM on July 16, 2010


What about firefox plug-ins? Are those already considered derivative and thus GPL? Is absolutely every program compiled to run on Linux going to be GPL just because it works with and within a GPL'd program?
posted by oddman at 7:49 AM on July 16, 2010


This whole argument is moot for web designers (like myself) who create one-off WordPress themes for individual clients that are never redistributed and only used on a single website, right? If I remember correctly the GPL only kicks into gear when public distribution becomes a factor.
posted by cvp at 7:49 AM on July 16, 2010 [1 favorite]


themes aren't just images and stylesheets

Correct. The argument being made is the PHP code in the themes that interacts with WordPress is a derivative work. The images and stylesheets to don't touch the code (but are rendered to the end user in the browser) not so much.
posted by ao4047 at 7:51 AM on July 16, 2010


Nelson: [The GPL is] very ambiguous in today's complex software environment.

precisely the point! GPL'ed software is meant to be free from the taint of non-free software and, correspondingly, to exert an external pressure on non-free development. The more inter-connected and ubiquitous software becomes, all the better!
posted by kuatto at 7:51 AM on July 16, 2010


Either you sue me or you don't

Yes that's basically the bottom line for any kind of open source license. If you can't count on the community to self-police on things like this then it's only really going to be decided in court.

Wow, so anything created to work with GPL stuff must be GPL? That seems like extremely faulty reasoning. Surely it doesn't mean any blog creating content using Wordpress must be GPL, right? If the answer is no, then it's odd that they're insisting themes must be GPL also.

The main point of open source licenses in general, rather than just making the source code public domain, is that it's illegal to add enhancements to the code without making those enhancements available to everyone. The question is whether from a legal standpoint a wordpress theme or plugin is an enhancement the same way that code added to the core Wordpress source code would be.
posted by burnmp3s at 7:52 AM on July 16, 2010


If Thesis adopted the GPL, that means the code is open to be distributed and reapplied by anyone for free. That means Thesis features could legally be added to WP Core without paying Chris royalties.

Wow. Somebody really doesn't get the GPL. The whole fucking point of the GPL is that you can share code without paying people royalties. If he didn't want people to take his code and do whatever they want with it, then he shouldn't have based his work on a GPL'd program.
posted by kmz at 7:52 AM on July 16, 2010 [8 favorites]


Money is at the heart of this particular issue even if it isn't at the heart of the license.

One or more participants may be motivated by money. But you specifically asked "who gets to make money" and who "can sell". Regardless of how this ends up, both Matt and Chris get to make money and can sell.
posted by DU at 7:53 AM on July 16, 2010


burnmp3s; most open source licenses explicitly do not require enhancements be made available to everyone. The GPL is relatively unusual in that regard. Personally these days I prefer the BSD or MIT licenses. They lack the viral compulsion of the GPL, but they're quite unambiguous and generally accomplish my goals.

(Also "public domain" means something very different from "open source".)
posted by Nelson at 7:55 AM on July 16, 2010 [1 favorite]


What about firefox plug-ins? Are those already considered derivative and thus GPL?

Firefox is released under your choice of the GPL, the LGPL, and the Mozilla license, so no, not unless you want them to be.

Is absolutely every program compiled to run on Linux going to be GPL just because it works with and within a GPL'd program?

Most of the Linux system libraries to which you might link are LGPL-licensed so that you can use them without using the GPL for your software. Running under a GPL kernel does not mean you need to use GPL; why would it? That has nothing to do with what's being discussed here.
posted by enn at 7:55 AM on July 16, 2010 [1 favorite]


kmz: the GPL doesn't say "you can do whatever you want with my code". It says "I give you the right to do almost anything you want with my code, but in return you have to agree to distribute modifications to my code under the same terms". It's really a very restrictive license. The question being tested here is whether a WordPress Theme is a derivative work and thus subject to the license.
posted by Nelson at 7:56 AM on July 16, 2010 [2 favorites]


DU: >How is it more convenient for Matt?
I'm sure Wordpress would love to add Thesis features to Wordpress.

If this is offered as a best-example of code which has been copied from wordpress, then the whole code copying attack is in real trouble.

I'm actually a big fan of the GPL, and agree strongly with what kmz says. And it does look like Person is a bit of a Dick. But I'm convinced this whole brouhaha is more complicated than either side will currently admit.
posted by seanyboy at 8:04 AM on July 16, 2010


Nelson, you describe the GPL as "very restrictive" in some way, but I can just as easily turn around and describe it as being the *most* open and free OSS license around.
posted by kuatto at 8:06 AM on July 16, 2010 [1 favorite]


And this is why I like the Apache License, and why all my open source stuff has this license applied to it.

Do what you will people. If I sell you a shovel, I will not ask for a cut from the profits of every hole you dig. If I give you a fishing rod, I will not ask you to share your fish with all other users of free fishing rods. If you make money from my work, so be it. I am happy for you.
posted by seanyboy at 8:09 AM on July 16, 2010


burnmp3s; most open source licenses explicitly do not require enhancements be made available to everyone. The GPL is relatively unusual in that regard. Personally these days I prefer the BSD or MIT licenses. They lack the viral compulsion of the GPL, but they're quite unambiguous and generally accomplish my goals.

Yes I should have used the term copyleft licenses rather than open source licenses. But the GPL has always been the most widely used open source license and it was explicitly created to combat the problem of "free" source code being used and enhanced in proprietary applications.

(Also "public domain" means something very different from "open source".)

What I was trying to say was that licenses like the GPL relax a lot of the built-in protections of copyright, but the reason why they are used at all (rather than just releasing the source code as public domain and losing all copyright protections) is to control how the code and derivative works can be created and distributed.
posted by burnmp3s at 8:09 AM on July 16, 2010


Sorry. Got carried away a bit there. That was a pretty bullshit comment.
posted by seanyboy at 8:10 AM on July 16, 2010


When using GPL software to generate content which is itself under copyright, that content is explicitly not a derived work and there is no need for that work to be GPLd, unless it actually contains a substantial portion of the code itself, of course.

In short, using a GPL word processor, OS or blog software does not require the content written or hosted with it be GPL'd.

As a general rule of thumb, mere aggregation or use of an API does not require that new code be GPL'd, i.e. it doesn't make it a derivative work. Statically, or dynamically linking - such that the programs effectively become one program during operation - does count as a derived work (There's the LGPL that allows linking; usually used for common libraries). Certainly, including GPL'd code in your own project to any significant degree makes it a derived work.

I have to say, not being invested on either side in this one, it's a damn tight call as to whether themes are or aren't derived works. It would come down to how much wordpress code is in the theme, I think; a few lines would count as fair use, a half-dozen functions probably wouldn't. If it's linking to library functions outside of a separately defined API (i.e. it's not just passing data back and forth, rather dynamically calling wordpress functions directly, for example) that too would likely class as a derived work.

The fault here though is not the GPL; the GPL is fairly clear what you can and can't do. The problem lies with copyright law drafted and designed for literary and musical works, not code, with very fuzzy edges as to what counts as a derived work, or fair use - in practice, it comes down to a judge saying 'I know it when I see it'.

Ultimately, this one is muddy enough that either there's going to have to be a gentleman's agreement, or some sort of legal action to actually resolve it.

One thing is clear though. Basing your entire financial existance on a close-to-the-wire avoidance of GPL terms, when the project - without which yours would be entirely useless - is GPL, then being a giant dick to that project about it, does rather make you well, a giant dick.
posted by ArkhanJG at 8:10 AM on July 16, 2010 [15 favorites]


Chris: I mean, like I said, Andrew, I think the GPL is something that is artificial and improper to induce upon a system. I don’t think it is a good thing. Nothing is going to convince me to do something that I think is a bad idea. Nothing.

Matt: Well, then why build on a GPL platform. If you’re right than WordPress is going to go away and go out of business soon. Why not pick something that wasn’t GPL?

Chris: Well, that may be true but number one, I’ve been building on WordPress for a long time. Number 2, WordPress has the huge market presence that you talked about. Its like, do you want to release a video tape for Beta or VHS? The smart one is for VHS. Regardless of what I think about that.


Translation: I subjugated my principles to the idea of making money, but when I was called on the fact that this was wrong, I hid behind my principles in order to continue making money.
posted by djgh at 8:12 AM on July 16, 2010 [11 favorites]


If this is offered as a best-example of code which has been copied from wordpress, then the whole code copying attack is in real trouble.

Reading the code in that diff, it looks like a lot of the lines marked as "different" differ in indentation and spacing only.
posted by Jpfed at 8:15 AM on July 16, 2010


Drupal, another GPL system is of the opinion that themes and modules built for their CMS are also derivative works.
Actually, it's less that "we are of the opinion..." and more "we talked to lots of lawyers and came to the conclusion there was no way around this."

A few years ago, this same conversation got started in the Drupal community. We were lucky, because in our case it was triggered by a handful of outsiders who insisted they could take an existing closed-source product, bolt it to Drupal, and be A-OK. The complicated legal discussions (and long heart-to-hearts with lawyers) that followed weren't easy, but we were lucky because it was a philosophical discussion. In the case of WordPress and Thesis, the discussion has heated up after Thesis became a popular and well-respected symbol in the theming community.

The discussion Matt and Chris get into about whether Thesis is "derivative" miss the underlying legal issue that drives a lot of these GPL issues: In a nutshell, If you take two pieces of software and combine them into one piece of software, they must have legal licenses that are compatible with each other.

Chris is well within his rights to create a piece of software name "Thesis" that people are NOT allowed to redistribute: he wrote that code, and he can decide what license it uses. If he wrote it in a clean room and didn't use any actual WordPress code in the process of creating it, it's unambiguously his. (If he DID in fact copy WP code in Thesis' code, that's another issue and he's doubly wrong, but we'll ignore that for now.)

While Chris can theoretically release Thesis under any license he wants to, though, Matt has released WordPress under a license (the GPL) that says, "If you make a derivative work of this software, that derivative work must also be licensed under the GPL."

Two pieces of software: WordPress with a GPL license, and Thesis with a closed-source license. In separate universes, each is fine. But by combining them together -- by installing Thesis on a copy of WordPress such that their code combines and executes as one combined PHP program scattered over several files -- a "derivative work" of both WordPress and Thesis is being created.

From a legal licensing perspective, that combined "WordPressWithThesis" derivative work is now a horrible, stillborn chimera that cannot exist with itself. WordPress's GPL license says, "This derivative work is GPL licensed, too!" but Thesis' closed source license says, "No! No! I'm here, and I can't be shared!" It's the licenses conflict between those two halves that causes problems, no matter what happens.

The really, really important part here is not the idea that "Two programs are talking to each other." It's that in interpreted languages like PHP, Python, Ruby, and so on, "plugins" and "themes" and so on are completely merged into the executing source code of the software they work with. PHP loads them all, executes them, and they function as one single program. There are no licensing conflicts when a GPL'd python script fires off an HTTP request to a web service running non-GPL'd software, or a commercial PHP script makes a command line call to a binary that's GPL-licensed. In those cases, programs are firing messages to each other over clearly-defined technical firewalls.

Now, there are some wrinkles to this: Chris could say, "Well, I'm not actually making a derivative work -- I'm just making this thing called Thesis. Who knows, if you leave it in the same room as WordPress, maybe something will happen!" This would be terribly disingenuous, and his own insistence that it is intimately tied to WordPress belies this. Suits have been filed against companies that used those kinds of tricks, writing commercial software that relied on GPL'd components -- and telling users, "Weeeeellll, you might want to go out and grab that GPL software and install it, too, because otherwise our program won't work..." But if the closed-source software can't even run without the GPL'd software -- like Thesis -- the hammer drops pretty easily.
posted by verb at 8:15 AM on July 16, 2010 [32 favorites]


That a program calling library functions, or inheriting from library classes... licensed under the GPL is a derivative work which must also be licensed under the GPL is uncontroversial and well-known.
enn

Running under a GPL kernel does not mean you need to use GPL; why would it? That has nothing to do with what's being discussed here.
enn

I've read several versions of the GPL and written a lot of software and I don't think either of these is obviously true (at least not from a legal standpoint.) Lots of people, including me, who love open source hate the GPL and one of the reasons is that the provisions don't really match up with intuition about how "open" software should work.
posted by ecurtz at 8:20 AM on July 16, 2010


Wow, so anything created to work with GPL stuff must be GPL?

I've had a number of clients forbid me to use GPL code in their projects, because they hold this very belief: they see the GPL as some sort of legal gray goo that changes anything it touches into more GPL.
posted by ook at 8:22 AM on July 16, 2010


ecurtz, I guess we will have to disagree. Pretty clearly it is the intent of the GPL drafters not to permit use of GPL software as a library in non-GPL software:
The GNU General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Lesser General Public License instead of this License. (source)
I'm not qualified to assess whether the text of the GPL actually backs that up, but I tend to assume that the FSF's lawyers are.
posted by enn at 8:26 AM on July 16, 2010 [1 favorite]


Since capital_P_dangit, I'm inclined to take a jaundiced view of Mullenweg.

Even allowing for my bias... if I wrote a patch that fixed a bug in Wordpress, and I distributed that patch as a closed-source, paid-for download, I'm pretty sure that wouldn't infringe the GPL. I'm not distributing Wordpress in source or binary formats, I'm not distributing a work derivative of Wordpress, and my users aren't redistributing the patched code. I think themes probably fall on the same wide of the line.

Two pieces of software: WordPress with a GPL license, and Thesis with a closed-source license. In separate universes, each is fine. But by combining them together -- by installing Thesis on a copy of WordPress such that their code combines and executes as one combined PHP program scattered over several files -- a "derivative work" of both WordPress and Thesis is being created.

Only an issue if you redistribute. I would assume that the Thesis license explicitly forbids you from redistributing Thesis+Wordpress.
posted by Leon at 8:28 AM on July 16, 2010


The Linux community went round-and-round the GPL kernel question in the early 2000s, both for programs running on Linux and for kernel modules dynamically linked into the kernel. Here's a good summary from that time. tl;dr: some prominent kernel developers say they think the GPL means that programs running on their kernel are not derivative works, and that kernel modules probably aren't derivative works either, so as far as they're concerned you don't need to GPL your own programs / kernel modules. Unfortunately the Linux kernel copyright is promiscuous, there are hundreds of developers who've contributed and may not agree with that interpretation. So in theory it's still not a settled matter. (In practice, of course, it is.)

As much as I admire Stallman and the FSF, they've really not helped the developer community in clarifying the ambiguities of copyleft. The GPL v3 was meant to address some of the complexities of scripting and dynamic linking, but honestly I can't understand what the license means despite several hours of trying.

Meantime the bar has been raised again; now the question is what it means for cloud providers to use and modify GPL software in their hosted services and not provide copies of their modified code. Should Google be compelled to release all their Linux kernel patches? Should I be allowed to start a company selling a hosted WordPress++ service without releasing my modifications to WordPress?
posted by Nelson at 8:30 AM on July 16, 2010


I've read several versions of the GPL and written a lot of software and I don't think either of these is obviously true (at least not from a legal standpoint.)
I'll be honest, the four days I spent discussing this with the lawyers destroyed any desire I have to discuss this specific point with anyone, ever again.

I will explain to others what those lawyers told us, and what the people who wrote the text of the GPL told us that the GPL means, but I'm not going to argue about what is obvious or not obvious for non-lawyers reading the text of the license.
Lots of people, including me, who love open source hate the GPL and one of the reasons is that the provisions don't really match up with intuition about how "open" software should work.
This basically boils down to, "If the GPL were really open, it would allow people to use it to do non-open things." That's a philosophical discussion. To me, the value of the existing GPL-licensed software I use and the communities around those pieces of software are more valuable than the potential for closing my code and selling it under a different license.

That is NOT the answer many other developers come to, and that's fine. I have no stomach for GPL zealots who insist that other licenses are bad. But folks like Chris -- who insist that the GPL must not be respected because they don't like it -- don't seem to realize that if licenses can be ignored based on personal preference, their closed source software can be pirated with the same rationalization.
posted by verb at 8:31 AM on July 16, 2010 [11 favorites]


if I wrote a patch that fixed a bug in Wordpress, and I distributed that patch as a closed-source, paid-for download, I'm pretty sure that wouldn't infringe the GPL.

Leaving aside the technical infeasibility of distributing a closed-source patch to an interpreted program distributed as source code, I'm pretty sure you're wrong. A patch is clearly based on the software it is patching.
posted by enn at 8:32 AM on July 16, 2010 [3 favorites]


Yeah, this isn't really a close issue or a judgement call here, at all. Thesis calls WP functions directly. It is, according to the GPL, a derivative work. It can certainly be sold, but it must be sold under a GPL2 license.

If Chris wants to own everything, he will need to replace Wordpress with his own custom coded blog engine. Otherwise, he could take the dead-easy no brainer way out and GPL Thesis. You know how many sales he'd lose by doing that? None.

I have a hard time fathoming why someone who is clearly relying on a piece of Free software to do a ton of work for him even has any notion of not making his derivative theme free as well. It's kind of like kicking a gift horse in the face.
posted by rusty at 8:34 AM on July 16, 2010 [5 favorites]


Leaving aside the technical infeasibility of distributing a closed-source patch to an interpreted program distributed as source code, I'm pretty sure you're wrong. A patch is clearly based on the software it is patching.

I'm happy to be proved wrong... but I'm not sure what you mean by "technical infeasibility". Wait, are you taking "patch" to mean a binary patch to an executable? Like you'd distribute to update a game? Nah, I'm talking about patches as produced by patch, the unix program.
posted by Leon at 8:36 AM on July 16, 2010


How could such a patch possibly be closed-source? I.e., what are you patching against, if not the (open) PHP source code of Wordpress? Leaving aside any licensing or legal issues, the diff supplied to patch(1) is open source by definition, no? A PHP programmer could read and understand the unpatched code, the text of the diff, and the patched source after patch(1) was used to apply the patch.
posted by enn at 8:40 AM on July 16, 2010 [1 favorite]


Ironically, patches as produced by patch contain snippets of the original. Maybe fair-used size, but still. Anyway, the real problem with distributing a proprietary patch to GPL code is that no one can run the patched work. You, distributing the patch, may not be subject to GPL. But anyone who applies the patch is creating a derived work and that creates an obligation that the derived work also be GPL. But then they'd be violating the patch's license. verb's description of license compatibility here is very useful.

I love the GPL and what it tries to do. It's just really complicated, and my own experience working with lawyers has ultimately made me give up trying to use it.
posted by Nelson at 8:42 AM on July 16, 2010 [3 favorites]


Can somebody explain this to me as though to a small child?

Because from my perspective, it seems like WordPress has said "hey, here's a huge field full of electrical outlets that you can plug your shit into, but please don't plug an extension cord into this free-electricity field and resell this electricity for profit."

And then Thesis says "yes, but I have plugged in a really colourful extension cord with a blinking light on it, so I can totally resell this electricity for profit."

On preview, kind of what rusty said.
posted by Shepherd at 8:42 AM on July 16, 2010 [1 favorite]


Two pieces of software: WordPress with a GPL license, and Thesis with a closed-source license. In separate universes, each is fine. But by combining them together -- by installing Thesis on a copy of WordPress such that their code combines and executes as one combined PHP program scattered over several files -- a "derivative work" of both WordPress and Thesis is being created.

Only an issue if you redistribute. I would assume that the Thesis license explicitly forbids you from redistributing Thesis+Wordpress.
The lawyers we spoke to concluded that "Only if you redistribute" was a reasonable answer if the closed-source software was a free standing functional program capable of running on its own. For example, if I wrote a closed-source playlist management script in PHP, and a user wired it into their copy of WordPress, a case could be made that they're exercising their rights to tweak the software running on their server.

If I were to write a closed-source WordPress plugin that manages playlists in the WP user interface, and depends on it utterly and completely -- as Thesis depends on WordPress -- pretending that "WordPress plus my product" isn't what people are actually purchasing is an untenable game of pretend. C&D letters, and suits, have been filed against companies who've attempted this in other situations.

Mind you, I was talking to these lawyers to figure out how we could make this acceptable for Drupal. We weren't trying to stop people, we were trying to justify it. The conclusion was that only adding an explicit addendum to the copy of the GPL Drupal is licensed under -- basically, making a custom license that is GPL-like but not exactly the GPL -- would make the derivative works/plugins issue unambiguously legal.
posted by verb at 8:42 AM on July 16, 2010 [2 favorites]


On a slightly unrelated note, arguments about licensing terms between non-lawyers always end up sounding a bit like this cartoon.
posted by verb at 8:45 AM on July 16, 2010 [2 favorites]


I'm not a fan of the GPL either, but as far as I can tell the theme probably should be released as GPL code. I mean, if you don't like the GPL, why pick Wordpress as the blog engine to build your awesome platform on top of? (Well, besides trying to make tons of money.) It sounds like Chris wants to use the Wordpress community, but not be a part of it.
posted by chunking express at 8:48 AM on July 16, 2010


Also, I kind of hope they do go to court, because I think some clear legal precedent when it comes to the GPL would probably be informative to everyone.
posted by chunking express at 8:49 AM on July 16, 2010 [1 favorite]


Verb: >> But if the closed-source software can't even run without the GPL'd software -- like Thesis -- the hammer drops pretty easily.

IANAL but I think that sentence there sums it up. If you hook your code to GPL, then you accept the license, otherwise go somewhere else.

I thnk the key part of the confrontation they both had was when Pearson said -

"It pays to mention, when I started Thesis. I didn’t know about any of this. I wasn’t prepared for all this. This has grown and this issue has grown, as this has happened I was already on WordPress"

I think he's been caught out unwittingly, and being a stubborn sort of person, has just dug his heels in and won't budge. It's unfortunate because he will lose, absolutely. Whether it goes to a court case or not, the fact that the WordPress community and especially Matt, are warning people about the issue will kill his business stone dead over time.

And I also don't think Matt has any choice but to sue if Pearson remains stubbornly dug in. There's a massive community which Matt has a responsibility for, and people earning their living by adhering to the GPL license. He has to sue if Pearson doesn't back down, otherwise the whole thing collapses.

What a shame. Inevitable I guess, but still a big shame.
posted by Duug at 8:50 AM on July 16, 2010


I guess my point would be that if the target audience needs to spend four days talking to lawyers to determine their liability maybe there are some problems with your license.

Copying code into his theme clearly isn't kosher. Claiming that an extension to a collection of scripts is a derivative work is a total nightmare of legal wrangling.
posted by ecurtz at 8:58 AM on July 16, 2010


Copying code into his theme clearly isn't kosher. Claiming that an extension to a collection of scripts is a derivative work is a total nightmare of legal wrangling.
The GPL doesn't claim that, though. It claims that extensions which effectively become part of the program result in the creation of a derivative work.

If I have GPL eggs, and you have closed-source flour, it is impossible to create a legally licensed cake from those ingredients. Either the GPL's requirement that derivative works also be GPL'd is violated, or your closed-source license's requirement that your software not be redistributed is violated.
posted by verb at 9:03 AM on July 16, 2010 [1 favorite]


I love the GPL and what it tries to do. It's just really complicated, and my own experience working with lawyers has ultimately made me give up trying to use it.

It's only complicated if you are doing something complicated or are trying to game the license. If you are doing a "regular" project and are operating in good faith, it's pretty simple.
posted by DU at 9:06 AM on July 16, 2010 [4 favorites]


I'm not an expert on the different flavors of OSS, but I do know a little about them, and one thing I can confidently say is that the GPL is the most "political" open-source license, and was originated by the ultimate "software should be free" guy, Richard Stallman, who used GPL as a way of furthering that philosophy. The BSD license, or Apache license, or whatever, make fewer or no demands on derivative works.

djgh is right above where he calls out the Thesis developer for feigning surprise at getting in trouble for creating a non-free work that links to a GPL'd work. Apparently the question of linking to GPL is unresolved, but if I were on the Wordpress team, I'd certainly be concerned about unfree stuff that builds on and requires Wordpress.

I haven't delved into the code for Thesis, but I have created my own WP theme. There were some features that I wanted to behave a little differently than vanilla WP allows, and the easiest thing to do was to copy those functions from the code and create customized versions of them that get called by my theme. In hindsight, it might have been theoretically possible to use a clean room approach where I used filters and callbacks to achieve the same effects. I'm not really a coder though, so I could not have done that, and even if I could have, it would have been a lot more trouble. I wouldn't be at all surprised if the Thesis developer took a similar route.
posted by adamrice at 9:09 AM on July 16, 2010


I guess my point would be that if the target audience needs to spend four days talking to lawyers to determine their liability maybe there are some problems with your license.
Also, to clarify, that four days was us -- the people who had written the GPL software -- trying to figure out if we could in some way get around this aspect of the GPL without sacrificing the positive aspects of the license that HAVE helped our community considerably. We came to the conclusion that "GPL + Addendum" would work, but not "GPL." For other reasons this was untenable, but that's about getting seven hundred code contributors (co-owners of the code, essentially) to all agree on an addendum. That's another matter, unrelated to the license itself.

At the end of the day, Rusty's point is a good one. People should evaluate the GPL and determine whether it makes sense for them. For some projects it's good, for others it's not. People who argue that the GPL is not what it is because they want to benefit from the software without accepting its requirements are muddying the waters and confusing people who might otherwise be able to make an informed decision. That's frustrating for me.

I'd rather someone use a closed-source license than use the GPL and pretend that it can be treated like a closed source license.
posted by verb at 9:11 AM on July 16, 2010 [6 favorites]


If you are doing a "regular" project and are operating in good faith, it's pretty simple.

I think this is true. It's not as though Stallman et al. have been at all secretive about the fact that an explicit design goal of the GPL is to make it so that you have to play by its rules to use code licensed under it in pretty much any way — so if you're working on a commercial product that you don't want to license as GPL, you just need to stay away from GPL-licensed code, period. For work I do that is going to be commercial I am very careful about only using BSD-, MIT-, or LGPL- (or LLGPL)-licensed stuff. Yes, sometimes there's a cool library that's GPL and so I can't use it; that's how it goes.

Obviously Pearson was not thinking about licensing at all when he chose to start developing themes for sale but, frankly, that's a pretty inexcusable oversight for a commercial software developer (though probably a common one).
posted by enn at 9:19 AM on July 16, 2010 [2 favorites]


Another thing that Drupal's "opinion" does well is clarify the difference between code and non-code. Non-code isn't covered by GPL, and almost all themes contain non-code elements (images, stylesheets, etc.) without which the theme would be pretty useless. So this whole kerfluffle could be easily avoided by simply claiming only the non-code elements of themes are outside GPL (and therefor not okay to redistribute). That's pretty much what happens in the Drupal community, and it seems to protect everyone's interests well enough.
posted by scottreynen at 9:20 AM on July 16, 2010


Meantime the bar has been raised again; now the question is what it means for cloud providers to use and modify GPL software in their hosted services and not provide copies of their modified code. Should Google be compelled to release all their Linux kernel patches?

This has been settled for ages.
If you do not distribute your modifications to the public, you are under no obligation to share the code.
See the FAQ.
posted by madajb at 9:25 AM on July 16, 2010


Another thing that Drupal's "opinion" does well is clarify the difference between code and non-code. Non-code isn't covered by GPL, and almost all themes contain non-code elements (images, stylesheets, etc.) without which the theme would be pretty useless. So this whole kerfluffle could be easily avoided by simply claiming only the non-code elements of themes are outside GPL (and therefor not okay to redistribute). That's pretty much what happens in the Drupal community, and it seems to protect everyone's interests well enough.
This is the approach that has worked out really well for Top Notch Themes, a Drupal premium template/theme company. The PHP source for their themes is designed as a reusable, customizable framework that gives designers a lot of flexibility with the underlying structure. They've released that component under the GPL, and they even actively promote it as a tool for other people to use when making custom designs from scratch.

The designs that you purchase from them are proprietary images, css, client-side code to do curious things that only apply to a particular design, and so on. For a really good design, that is where the majority of the work goes, and pretty much everyone recognizes that. They've embraced the distinction, and their work has become more popular because of it.
posted by verb at 9:26 AM on July 16, 2010 [3 favorites]


Apparently the question of linking to GPL is unresolved,

It is resolved, though. Here's the resolution:
+-----------+-------------------------------------+----------------------------------+
| linked    |                                     |                                  |
| code's    |    if you distribute the result     |    if you do NOT distribute      |
|license is?|    of linking, then you must...     |   the result of linking, then... |
+-----------+-------------------------------------+----------------------------------+
| GPL       |       license your code as GPL      |        no legal obligation       |
+-----------+-------------------------------------+----------------------------------+
| LGPL      |        no legal obligation          |        no legal obligation       |
+-----------+-------------------------------------+----------------------------------+


posted by Jpfed at 9:29 AM on July 16, 2010 [5 favorites]


Copying code into his theme clearly isn't kosher

This isn't necessarily true... are those pieces of code effectively the only way to interface with wordpress? If so it might be kosher 1) under fair use 2) for the same reason header files can't be copyrighted 3) the only way to perform a given functionality and thus may be permissible. Looking at some of the example code in question given I just don't see a compelling argument for asserting that the code in question is sufficient to raise a claim of copyright infringement/license violations. And anyone who says this is simple has an agenda. The law here is incredibly vague and there are very few real precedents.

In particular from one of the blogs: " Since Thesis contains GPL’ed code, it must be GPL’ed as well. " is just plain false.
posted by An algorithmic dog at 9:33 AM on July 16, 2010


for the same reason header files can't be copyrighted

Please elaborate; I have never heard anyone make this assertion and I can't imagine that it's true.
posted by enn at 9:35 AM on July 16, 2010


It is resolved, though. Here's the resolution:

What the FSF says does not make a legal reality. For instance loading gpl code as a plugin to a closed source piece of software is almost certainly legit if the software is largely feature complete (so it is not a derivative) without the plugin. But this is in contradiction to what the FSF says. However it certainly is what copyright law seems to suggest. Mere copying code even verbatim does not make a derivative work. Linking does not necessarily make a derivative work.
posted by An algorithmic dog at 9:36 AM on July 16, 2010


DU's Law: As a technical discussion grows longer, the probability that an ASCII chart has posted made approaches 1.0.
posted by DU at 9:38 AM on July 16, 2010 [4 favorites]


This isn't necessarily true... are those pieces of code effectively the only way to interface with wordpress?
I have no idea whether he did or not -- the one snippet I saw looked ambiguous. That's why I'm ignoring the "did he include actual WordPress code in Thesis" question in most of my analysis. If he took WP code and built on top of it, Thesis would itself be derivative. If he didn't, WordPressPlusThesis would be a derivative work made of two works with competing and incompatible licenses.
posted by verb at 9:39 AM on July 16, 2010 [1 favorite]


DU's Second Law: When you edit a funny comment to make it more funny, you will introduce a grammatical error.
posted by DU at 9:39 AM on July 16, 2010 [2 favorites]


Headers aren't generally considered copyrightable because they are facts/specifications. Code in headers may be but mere declarations are not.
posted by An algorithmic dog at 9:39 AM on July 16, 2010


Found the citation: see http://en.wikipedia.org/wiki/Abstraction-Filtration-Comparison_test
posted by An algorithmic dog at 9:43 AM on July 16, 2010


I don't see anything about header files on that page. At any rate, I suspect we are talking about different things; most header files I've seen are almost all code which could as easily go in the main program source.
posted by enn at 9:48 AM on July 16, 2010


Yes, Jpfed, the basic description of how LGPL and GPL treat linked things differently is understood. What's not understood is what "linking" means. Specifically, how various forms of code inclusion result (or do not result) in a derived work under copyright law. Dynamic linking, scripts, hosted execution environments, plugins, addons, WordPress themes, these are all forms of linking code together. These situations are ambiguous with respect to the GPL license and there is precious little judicial precedent to clear them up.

And yes, madajb, there is nothing in GPL v2 that compels a hosted service provider to redistribute source for their modified version. That's clear. My point was that some free software activists aren't happy with that state of affairs and think the cause of copyleft would be better served by a license that did compel redistribution of, say, Google's proprietary Linux kernel patches. It's just another example of how the current state of software complexity has outstripped the relatively simple environment that the original GPL was written for.
posted by Nelson at 9:48 AM on July 16, 2010


The GPL is a way to ensure that anyone to whom you distribute a change to has the same rights to this new iteration of the code as you did to see its source code in the first place. You can't offer to help another user by modifying their GPLed software to suit their needs and then restrict them from giving that change to others. And they can't restrict you from distributing it, either. You can both agree to keep it to yourselves but neither of you has the power to impose further restrictions on the other.

DU has the soul of the problem nailed, though, if you aren't approaching working with GPLed software in good faith then the problems you encounter are because of your approach, not a flaw in the license.
posted by Space Coyote at 9:50 AM on July 16, 2010 [1 favorite]


I actually thought that Chris made some really salient points in that Mixergy interview, like:

"However, I think any astute economic analysis of economic systems of the way businesses and economies actually work would very quickly notice that a GPL does some very inorganic things to what are otherwise organic systems. So, from a systemic standpoint, on a systemic level, I disagree with the way the GPL perpetuates economies."

Whatever that actually means.
posted by cgomez at 9:52 AM on July 16, 2010



I don't see anything about header files on that page. At any rate, I suspect we are talking about different things; most header files I've seen are almost all code which could as easily go in the main program source.


Even in C? Slow compiling ahoy....

Anyway under AFC I think it is unlikely that that code would count as something that he could be sued over. You can copy code directly under some circumstances and have that copying discarded for the purposes of determining if something is a derivative work under AFC. In particular because the theme most operate with wordpress if the case went to trial AFC would almost certainly play a major role.
posted by An algorithmic dog at 9:53 AM on July 16, 2010


Whatever that actually means.

He wants to teach the controversy.
posted by Space Coyote at 9:54 AM on July 16, 2010 [1 favorite]


DU has the soul of the problem nailed, though, if you aren't approaching working with GPLed software in good faith then the problems you encounter are because of your approach, not a flaw in the license.
What is good faith is different to different people. When you are building systems for interoperability the definition of derivative is never clear. The definition of linking frequently is not clear. While some members of the OSS community take the FSF's definitions on faith there is a good deal of disagreement about the minutiae. And this is a case that deals in the minutiae. If the general OSS community can not agree on what a derivative is how the heck can we say he is not acting in good faith? The reason people say he is not acting in good faith is because they want to use his stuff for free.
posted by An algorithmic dog at 9:57 AM on July 16, 2010


Here's the thing: the Thesis dude is being really, really stupid. That people give him money for code they can download from the internets is almost entirely predicated on two things:

1) good will, and
2) ease of use.

It has almost nothing to do with a silly bit of legal fluff that no one is going to read anyway. People want to get the Thesis themes, and the easiest and most straightforward way to do that is give the dude some money and download and install it.

If Thesis dude burns his goodwill up in a douchey cloud of smoke and flame, he'll have removed one of those predicates that makes him the mad benjamins. Even now more and more people are not buying his shit because he's being a dick. "Oh, fuck him, he's being an asshole, I'll just rip him off."

The best way to make bank in the GPL world is to give your fully functional shit away so that someone technically competent can install it and use it and be happy, and also for a reasonable fee provide absolutely stellar support and unparalleled ease of use so someone not technically competent can push a button, log-in to PayPal, and in five minutes go get a cup of coffee with the task done.

I sell some image processing software for Linux, and while it isn't GPL, it does use a "pay what you want" model. And most people pay a nice chunk of change because it's great software and well supported. Some folks pay a bare minimum and I'm okay with that because they'd probably pirate it anyway, and some folks pay a lot because it's really made a difference for them.

So Thesis guy.... you should shut your mouth, apologize for starting a ruckus, open your source, drop your one-click-install price significantly for a month or so to thank the GPL WordPress community for its support, and get on with doing what you do best, which is not argue the finer legal points of software licensing in a public forum with a huge chip on your shoulder.
posted by seanmpuckett at 10:01 AM on July 16, 2010 [1 favorite]


Even in C? Slow compiling ahoy....

I don't write any significant C so I'll defer to your knowledge here.

Anyway under AFC I think it is unlikely that that code would count as something that he could be sued over. You can copy code directly under some circumstances and have that copying discarded for the purposes of determining if something is a derivative work under AFC. In particular because the theme most operate with wordpress if the case went to trial AFC would almost certainly play a major role.

Isn't that begging the question? Obviously if I make changes to an existing program (under any license), for those changes to function properly the unchanged portions of the program are also required; that doesn't give me some kind of interoperability exemption from all copyright, though.

The reason people say he is not acting in good faith is because they want to use his stuff for free.

That's ridiculous. I have less than no interest in using anybody's Wordpress themes.
posted by enn at 10:03 AM on July 16, 2010



Isn't that begging the question? Obviously if I make changes to an existing program (under any license), for those changes to function properly the unchanged portions of the program are also required; that doesn't give me some kind of interoperability exemption from all copyright, though.


There are no concrete rules in copyright law. Copying just enough code to interoperate is almost always going to get a pass from the courts. Judges arn't stupid. Intent matters. (After all you can commit copyright infringement with no verbatim copying at all). If he was found to have copied code from GPL themes I'd be quick to agree it should be GPL. Copying code necessary to produce a theme (and no more) is going to be a hard sell to argue derivative work.

This blog here agrees with me (and was conveniently not left out in all of the closed source software is inherently evil framing).
posted by An algorithmic dog at 10:10 AM on July 16, 2010


That blog entry seems long on assertions and short on citations. I tend to trust the lawyers who've studied the issue (the FSF's lawyers, the SFLC lawyers, and the people to whom verb refers above) more than some random guy. This isn't a hypothetical in which there is some common API with multiple implementations, as in his example; he's calling arbitrary Wordpress functions specific to the Wordpress software.

Yes, intent matters. This guy clearly has stated that he had no idea what the license was when he began developing on top of Wordpress and didn't care, and when he found out, he decided to ignore it because it does inorganic things to organic systems, whatever that means. It doesn't seem like intent is going to be weighing in his favor here.
posted by enn at 10:26 AM on July 16, 2010


Meantime the bar has been raised again; now the question is what it means for cloud providers to use and modify GPL software in their hosted services and not provide copies of their modified code. Should Google be compelled to release all their Linux kernel patches? Should I be allowed to start a company selling a hosted WordPress++ service without releasing my modifications to WordPress?

Providing a mechanism to close this "ASP loophole" was addressed as early as 2002 by the Affero GPL -- the contemporary descendent (as of 2007) being the GNU Affero General Public License, based on GPLv3.

I'm curious how much usage the Affero-style licenses are getting, but haven't found much data.. anyone have a list?
posted by kanuck at 10:33 AM on July 16, 2010


Annoying, self-inflating dude doesn't understand an open source license and clings to unrelated arguments and FUD in order to continue making a buck?

Am I missing anything here?
posted by tmcw at 10:46 AM on July 16, 2010 [1 favorite]




That blog entry seems long on assertions and short on citations. I tend to trust the lawyers who've studied the issue (the FSF's lawyers, the SFLC lawyers, and the people to whom verb refers above) more than some random guy. This isn't a hypothetical in which there is some common API with multiple implementations, as in his example; he's calling arbitrary Wordpress functions specific to the Wordpress software.

AH yes you mean the people who think that an FAQ actually defines copyright law. :)
Both the FSF and SFLC have a vested interest in promoting their view of derivative work. Never has been testedi n court though.


Yes, intent matters. This guy clearly has stated that he had no idea what the license was when he began developing on top of Wordpress and didn't care, and when he found out, he decided to ignore it because it does inorganic things to organic systems, whatever that means. It doesn't seem like intent is going to be weighing in his favor here.

Immaterial. Intent on code. I mean the guy is clearly a jerk. But that does not make him wrong.
posted by An algorithmic dog at 10:46 AM on July 16, 2010


While some members of the OSS community take the FSF's definitions on faith there is a good deal of disagreement about the minutiae.
Given that the FSF actually wrote the GPL, that projects choosing the GPL do so voluntarily, that the FSF releases new versions of the GPL (or purpose-specific variants of the GPL) when there are actual "holes" discovered in the license, and that most of the people angry about the GPL's implications are angry because they want to use GPL'd software without respecting the intent of the license, I think that referring to the self-described intent of the lawyers employed to work on the GPL is a bad approach.
posted by verb at 10:57 AM on July 16, 2010 [2 favorites]


because it does inorganic things to organic systems

Chris denies that this is all a result of libertarian philosophy, but as someone who quit following him on Twitter after one too many libertarian rants I really have to disagree.

Anyway, I think that's where all that sort of stuff is coming from.
posted by imabanana at 11:07 AM on July 16, 2010


He's a fucking libertarian? Well that explains why he sounds like a douchebag.
posted by chunking express at 11:18 AM on July 16, 2010 [2 favorites]


I've written and put code under the GPL before. The FSF does not speak for all open source developers. (Hell I can't stand the guys, primarily because they keep trying to hold themselves out as speakers for the whole OSS community). The GPL is a fine license as long as you understand what a derivative work is. And a derivative work is defined by law, not the FSF. If the FSF wanted their interpretation they should have been explicit.
posted by An algorithmic dog at 11:19 AM on July 16, 2010


primarily because they keep trying to hold themselves out as speakers for the whole OSS community).

No, they see the Free Software community as quite a different thing from the 'open source' community and want to remind people of that distinction often enough that it becomes annoying.
posted by Space Coyote at 11:27 AM on July 16, 2010 [1 favorite]


For serious. Do you guys know about GNU/Linux?
posted by chunking express at 11:29 AM on July 16, 2010


In practice the Free Software community is the same community though as the open source community. I'm sure the FSF would love to claim its not, but they are intertwined at the hip. There is clearly a difference in semantics but practically the FSF mucks with the open source community all the time. Their move of readline from GPL2 to GPL3 was a giant PITA because to receive critical bug fixes you had to move to GPL3 or dump readline. The FSF does directly try to influence the open source community all the time, and it turns software development into a political mess for the sake of ideological minutiae.
posted by An algorithmic dog at 11:30 AM on July 16, 2010


And a derivative work is defined by law, not the FSF. If the FSF wanted their interpretation they should have been explicit.
And their lawyers have been explicit about this. They do not believe that additional changes to the GPL itself are necessary to clarify this point, and other companies have backed down when challenged.
The FSF does not speak for all open source developers
No, but their lawyers can certainly speak authoritatively about the legal document that they authored.
posted by verb at 11:37 AM on July 16, 2010


I'm not aware of any interesting cases of companies backing down over the linking/derivative debate, and even if they did that doesn't show anything about what a court of law would say.

For that matter, how do you expect ANY lawyer to speak authoritatively about the GPL when there have been no real cases tried on any of the unclear things? Things arn't clear until they are in court.
posted by An algorithmic dog at 11:43 AM on July 16, 2010


But if the closed-source software can't even run without the GPL'd software -- like Thesis -- the hammer drops pretty easily.
posted by verb at 11:15 AM on July 16


THIS RIGHT HERE!

the proof is in the function pudding: can THESIS run as a standalone? can the same THESIS theme run on Joomla, Drupal, MovableType? No? Then it's a derivative.
posted by liza at 12:06 PM on July 16, 2010 [2 favorites]


For that matter, how do you expect ANY lawyer to speak authoritatively about the GPL when there have been no real cases tried on any of the unclear things? Things arn't clear until they are in court.
There are a number of cases both in the US and internationally that have touched on issues of distribution, derivation, and the general "solidness" of the GPL as a legal document. To the best of my knowledge, the GPL has held up in every instance.

As you suggest, though, no cases have dealt with this specific wrinkle -- Bob writes a program that MUST be combined with a GPL program to work, and thus claims that he is not 'distributing' the GPL'd work, only a work that might, perhaps, be combined with the GPL'd work by someone else. That very specific issue is an interesting one, and Chris is literally challenging Matt to sue him to find out. It's worth noting that all the companies who lost previous GPL cases, insisting they could do what they wanted, said the same things Chris is saying up until the moment they lost.

At the end of the day, Chris wants to build on top of GPL'd software to make money, but does not want to respect the licensing requirements that come with the GPL. He -- and others who agree with him -- are taking their stand on hair-splitty definitions to circumvent the clearly explained intention of the license. "You can do what you want with this GPL software, including building stuff on top of it. If you build stuff on top of it, though, and you distribute it to other people, you must give the same rights to them."

I want to emphasize that I am not talking about whether the philosophy of the GPL is good, whether software should be free or commercial, or whether Stallman is a genius or a menace. I'm just saying that all of the research I've done and all of the conversations I've had with lawyers who specialize in IP and Software related issues have explained these things to me. The majority of objections I hear in these discussions are not lawyers disagreeing about legal terms; they are laymen (like me) expressing opinions about what aught to be.
posted by verb at 12:09 PM on July 16, 2010 [2 favorites]


For that matter, how do you expect ANY lawyer to speak authoritatively about the GPL when there have been no real cases tried on any of the unclear things? Things arn't clear until they are in court.
THANK YOU. I actually support Pearsonified on this. Most people despise him because he's a cocky d-bag. Fine, I can understand that viewpoint entirely (though I actually get a kick out of him).

His issue though is not if he meets a certain criteria or falls within the defined bounds of the GPL, but rather if his personal work is subject to the will of others. While Thesis is about making money, I don't think he's fighting this with his financial future in mind. Those that skew Libertarian (myself included) usually have major problems with people telling them what they can and can't do outside our their moral compasses and the most basic laws of civilization.

If I had to guess, I'd say the GPL is to Chris Pearson what the Muslim religion is to a Catholic. He just doesn't care about those rules. He's got his own. And until they are somehow made the law of the land and he's forced to stop doing what he's doing, he won't. Sure, he's not playing by the "spirit of the game" but anyone who's ever played competitive Ultimate Frisbee knows that, too, is entirely inorganic and falls apart when things get competitive.

I'd love to see this go to court. The GPL would fold... I'm certain. There's just too much original work in Thesis to usurp Pearson's ownership. It seems it would blow up every fair use and derivative work law on the books.
posted by BirdD0g at 12:14 PM on July 16, 2010


If I had to guess, I'd say the GPL is to Chris Pearson what the Muslim religion is to a Catholic.
Then he shouldn't have started attending a Mosque: he built his software on top of GPL licensed software, and it cannot be used without that GPL licensed software.
posted by verb at 12:16 PM on July 16, 2010 [5 favorites]


Those that skew Libertarian (myself included) usually have major problems with people telling them what they can and can't do outside our their moral compasses and the most basic laws of civilization.

Then he shouldn't have based his work on Wordpress. If he's such an independent free spirit then surely he could write his own CMS from the ground up?

If I had to guess, I'd say the GPL is to Chris Pearson what the Muslim religion is to a Catholic.

WTF I don't even.
posted by kmz at 12:18 PM on July 16, 2010 [4 favorites]


Your second link is broken.
The mysql case is interesting... they caved, but prior to mysql was not able to show enough for summary judgement.

Anyway, I've talked to at least one well known IP lawyer who seems to have issues with the linking arguments in the gpl (mainly via linking arguments).

At the end of the day it comes down to what does it mean to build something on top of something else, and I don't think that is clear.

The C libraries etc from GNU are somewhat unique in that they claim that you would be infringing by linking if they didn't have the exemption. But this implies that a C program is a derivative of the C libraries (otherwise they wouldn't need this clause). This just doesn't make sense to a lot of people. But this is the inevitable place you go if you say linking alone is making a derivative work.

Certainly linking can make a derivative work but saying that is sufficient seems to be a gigantic stretch. Otherwise, firefox on windows would be a derivative of windows and this is just getting into sillyness.
posted by An algorithmic dog at 12:24 PM on July 16, 2010


I'd love to see this go to court. The GPL would fold... I'm certain.

If the GPL "folds" then the license doesn't turn into a "OK you can do whatever you want", it reverts back to standard copyright and the Thesis guy even further from being able to do what he wants with it. The GPL is a license that relaxes certain elements of copyright if the stated conditions are met. If those conditions aren't valid, then the relaxation of copyright is what goes away, it doesn't magically turn the GPL into something it never was - a blanket giving up of the rights of the author.
posted by Space Coyote at 12:26 PM on July 16, 2010 [1 favorite]


verb: The majority of objections I hear in these discussions are not lawyers disagreeing about legal terms; they are laymen (like me) expressing opinions about what aught to be.

Yes, a hundred times.

Lay people often confuse magical thinking -- "This is true because I read about it on a blog" or "this is true because I said so" or "this is true because it should be true, and in a just world it would be true" -- for legal standing.

It's bullshit, and is basically why lawyers-as-representatives exist; to cull the bullshit out of some bozo's world view, suss out an actual legal standing, and if all goes well keep his ass from being eaten by a judge. I've seen judges eat asses and it isn't pretty.
posted by seanmpuckett at 12:27 PM on July 16, 2010 [1 favorite]




If the GPL "folds" then the license doesn't turn into a "OK you can do whatever you want", it reverts back to standard copyright and the Thesis guy even further from being able to do what he wants with it. The GPL is a license that relaxes certain elements of copyright if the stated conditions are met. If those conditions aren't valid, then the relaxation of copyright is what goes away, it doesn't magically turn the GPL into something it never was - a blanket giving up of the rights of the author.

This isn't true. If Thesis is ruled not to be a derivative work of wordpress then the GPL still holds and he can continue using it. Wordpress losing the suit does not invalidate the GPL.
posted by An algorithmic dog at 12:28 PM on July 16, 2010


Sorry, algorithmic dog, I had the notion of the GPL itself "folding" which is what BirdDog seemed to be on about with this particular case which might end up being something not covered by the GPL. Apologies.
posted by Space Coyote at 12:31 PM on July 16, 2010


Those that skew Libertarian (myself included) usually have major problems with people telling them what they can and can't do outside our their moral compasses and the most basic laws of civilization.

the courts are not here to deal with the psycho-emotional crap of libertarians who throw hissy fits because the world isnt working the way they want. the courts are here to enforce contracts and that's what the GPL is all about : a contract on how to use in this case WordPress as a source-code.

if Pearson has authority issues, then he most certainly can take his oh-so-righteous libertarian ass and code a whole blogging platform on his own. or hire his band of libertarian psychophants to do it for him.

either way, a contract is a contract. he went in, mined not just a FREE OF CHARGE blogging platform in the guise of WordPress, but a FREE OF PROPRIETARY RESTRICTIONS SOURCE CODE that his oh-so-special theme would be rendered useless without.

i dont care how horribly wrong the world is to spoiled little libertarian brats who think their privilege is some source of legal, governmental, social and even moral shield. the fact of the matter is that Pearson has built a whole business on open-source. he either plays by the legal foundation of the platform he's using or gets the fuck out.
posted by liza at 12:32 PM on July 16, 2010 [2 favorites]


SC: np this is all excessively confusing (and is why I really wish we could come up with some more reasonable licenses that wern't intentionally vague). The real issue is that if X is not a derived work of Y then there is no way to regulate X except with an ELUA which the GPL explicitly is not, and open source seems to be agast at the idea of ELUAs. But at the end of the day linking is really a user problem... I can get around the GPL by invading the memory space of a running program and directly injecting code/data into the memory space. This doesn't require distribution. Its not a derived work if I make the injector generic enough. It is certainly against the spirit of the GPL. But the only way to prevent that type of abuse is going to be with ELUA's. The OSS community needs to give up on its ELUA's are evil stance and start writing some of its own.
posted by An algorithmic dog at 12:35 PM on July 16, 2010


There's just too much original work in Thesis to usurp Pearson's ownership.

No one's trying to usurp Pearson's ownership of Thesis. The question is whether he's usurping Matt Mullenweg's ownership and licensing of WordPress.

Also: fuck libertarian douchebags.
posted by Nelson at 12:36 PM on July 16, 2010 [1 favorite]


liza: Yes a contract is a contract. But the GPL is a very specific contract, and if they intended to restrict what they now want to restrict they should have used a clearer licensing agreement. People blindly assign their code to GPL thinking it is a do what I want license that protects everything magically in the exact way you want. Guess what, it doesn't. This is why choosing a license carefully as opposed to using a fad license is important.
posted by An algorithmic dog at 12:37 PM on July 16, 2010


I'm a layman so my words aren't always right. Basically, what I mean by "folding" is that I think it's really tough to call something that's 95% original a derivative work. I mean, everything new derives from something; software is just an interesting animal. If add-ons, themes, etc. are all derivative because they apply to the car like windshield wipers, the whole software industry will slowly creep into a Monsanto-esque ownership state, only socialized instead of corporate.
posted by BirdD0g at 12:39 PM on July 16, 2010 [1 favorite]


I think the lesson of this thread is that GPL discussions get heated quickly, but the minute you say someone is a libertarian, the real rage comes out. *grin*
This is why choosing a license carefully as opposed to using a fad license is important.
That is correct. But this is not a case of someone using the GPL because they didn't understand it. This is the case of someone releasing GPL software, and someone else releasing non-GPL software built on top of it because they didn't understand the GPL.
posted by verb at 12:42 PM on July 16, 2010


I disagree. I see this as a problem where people don't understand the GPL and just assume it does what they want. Thesis's legal position is quite well reasoned (even if it was by accident). If I were in their shoes I would be telling wordpress to put up or shut up too. The GPL has always had these gray areas, it is just that the FSF doesn't like talking about them. Thesis is not the first person to raise these arguments nor will he be the last. Anyone who did a modicum of research before licensing under GPL would be aware of them.
posted by An algorithmic dog at 12:49 PM on July 16, 2010


I think it's really tough to call something that's 95% original a derivative work
I don't want to be an ass, but this issue is addressed upthread. Thesis is an unusable, inert chunk of code that does nothing without Wordpress. It does nothing in Wordpress' absence. Chris attempts to minimize this in the interview that's linked to in the original post, saying that WordPress "just runs some SQL queries," but if it's so minimal and unnecessary, Thesis should be able to run without it. If Thesis COULD run without WordPress, its users wouldn't be using WordPress, and there would be no problem.

Even assuming that no code from Wordpress appears in the code of Thesis, they must be combined into a single executable PHP script at runtime for Thesis to actually do anything. That Thesis-Plus-Wordpress combination is the "derivative work" that causes problems.
posted by verb at 12:50 PM on July 16, 2010 [1 favorite]


I disagree. I see this as a problem where people don't understand the GPL and just assume it does what they want.
Who are you talking about? Chris, who admits he didn't know what the GPL was before creating Thesis, and now declares that he doesn't care what 'the technicalities are?' Matt, who released WordPress as GPL because it is itself a derivative work of another pre-existing GPL blogging package named b2? Or are we talking about a hypothetical person unrelated to this conversation who is about to release their software as GPL because all the cool kids are doing it?
The GPL has always had these gray areas, it is just that the FSF doesn't like talking about them.
Really? I had no problem getting their lawyers to talk to me for days about this specific issue, drilling into very specific details of how PHP, C, and web services work, doing code reviews, and so on. They don't mind talking about these things, some people just don't like their answers.
posted by verb at 12:55 PM on July 16, 2010 [2 favorites]



I don't want to be an ass, but this issue is addressed upthread. Thesis is an unusable, inert chunk of code that does nothing without Wordpress. It does nothing in Wordpress' absence. Chris attempts to minimize this in the interview that's linked to in the original post, saying that WordPress "just runs some SQL queries," but if it's so minimal and unnecessary, Thesis should be able to run without it. If Thesis COULD run without WordPress, its users wouldn't be using WordPress, and there would be no problem.

Yeah unfortunately it is addressed by people more interested in crucification then in figuring out what is legal. That is what happens when you have people who have never studied copyright arguing over copyright :( You end up with what feels right discussions instead of what is correct discussions.

Even assuming that no code from Wordpress appears in the code of Thesis, they must be combined into a single executable PHP script at runtime for Thesis to actually do anything. That Thesis-Plus-Wordpress combination is the "derivative work" that causes problems.

Combination is not sufficient for derivative work. By that logic a java program is a derivative of a hotspot virtual machine. Stop pretending the issue is simple. The fact that it has to be combined into a single php script is a consequence of the php language. Under AFC test that is unlikely to be sufficient to establish it as a derivative work. The fact that wordpress is designed to accept third party themes is going to make it quite hard to argue that a theme is a derived work of wordpress, just as in litigation proprietary linux kernel modules would probably be acceptable.
posted by An algorithmic dog at 12:58 PM on July 16, 2010


Verb: not all lawyers agree on litigated issues, and I'd go as far as to say that anyone who said that it was clear that linking = derived work without court precedent was a bad lawyer. That may be their perspective, but no one knows that for sure. There is no precedent for saying linking automatically implies derived work. None. And there are plenty of good arguments to be had via AFC or Fair use that linking can at times not produce a derived work.
posted by An algorithmic dog at 1:01 PM on July 16, 2010


His issue though is not if he meets a certain criteria or falls within the defined bounds of the GPL, but rather if his personal work is subject to the will of others. While Thesis is about making money, I don't think he's fighting this with his financial future in mind. Those that skew Libertarian (myself included) usually have major problems with people telling them what they can and can't do outside our their moral compasses and the most basic laws of civilization.

They also hate paying their dues and maintaining infrastructure or systems that benefit everyone. I agree with you that his actions seem completely in line with this philosophy.

-----------------------------------------------------------------------

SC: np this is all excessively confusing (and is why I really wish we could come up with some more reasonable licenses that wern't intentionally vague)

I think the "intentional vagueness" comes from trying to define the widest possible net. Getting superprecise means that people game you by skirting around the tiny rule you just defined. I agree with DU that:
"It's only complicated if you are doing something complicated or are trying to game the license. If you are doing a "regular" project and are operating in good faith, it's pretty simple."

And frankly, a precise and short license would generate just as much controversy and discussion upon "gaming actions" as a broad and long license. Only it would get exploited more by non-cooperators.
posted by sebastienbailard at 1:05 PM on July 16, 2010


Thesis is an unusable, inert chunk of code that does nothing without Wordpress.
Don't worry about being an ass. I appreciate your insight.

As a web designer though, my siding with Chris (or moreso against GPL) comes mainly from the fact that I could create a totally original interface, but the minute it's skinned onto WordPress it's GPL? Thesis, though designed to function specifically with WordPress, is still an original work in my book. A boat is useless without a body of water, iPhone case w/o the iPhone, windshield wipers without the car, but there's still a creator involved that should have intellectual property rights no matter what the original platform. This is where Chris gets all "inorganic and organic"... there's a demand in the market, but to fill it with his own ingenuity he must concede ownership?
posted by BirdD0g at 1:06 PM on July 16, 2010


People blindly assign their code to GPL thinking it is a do what I want license that protects everything magically in the exact way you want. Guess what, it doesn't. This is why choosing a license carefully as opposed to using a fad license is important.
posted by An algorithmic dog at 3:37 PM on July 16


you're splitting hairs. THESIS CANNOT FUNCTION WITHOUT WORDPRESS. there's no either/or.

it's not a stand-alone platform nor does it work indiscriminately from the API of several blogging platforms. THESIS is not like a java applet calling functions outside of WordPress in an embedded format and just basically skinning unobtrusively the platform. THESIS AS A THEME DEPENDS 100% ON WORDPRESS.

as a web developer i can't use Drupal or WordPress, slap a couple of proprietary functions and basically promote and sell the whole shebang of Drupal + Drupal Contributed Modules + my couple of puny proprietary functions as LIZA SABATER'S AWESOME SUPER-SECRET & PROPRIETARY POWERS OF BLOGGING. GPLs do not work like and it's exactly for that reason.

Drupal and WordPress are two projects that are mature enough, big enough and have enough money to basically sue the hell out of people like Pearson. the bottom line is that THESIS cannot exist without WORDPRESS; not the other way around. that's the measure of a derivative work and it should stand in court anytime.

and yes, i've known of cases similar to this dispute that have been decided in favor of the GPL but am drawing a blank right now.
posted by liza at 1:08 PM on July 16, 2010


Combination is not sufficient for derivative work. By that logic a java program is a derivative of a hotspot virtual machine.
The word "combining" is not a magic word, no. Please note that I specifically said they must be combined into a single executable PHP script at runtime. From a technical perspective, there is absolutely no difference between the code written by Chris and the code written by Matt at the time that the code runs. PHP loads them all, and creates a single executable program out of them, and that program builds an HTML web page.

That specific reason is why PHP, Python, Ruby, Perl, and other interpreted languages add a wrinkle to the issue of plugins and interoperability. It's not a question of 'linking' or 'working together,' even. The two pieces of code are literally combined into a single program, and that program is executed.

Chris's insistence the Wordpress depends on Thesis is also absurd, because WordPress includes all of the code it needs to run properly in the absence of Thesis, and all of that code is GPL licensed. Thesis does not, and must be combined with WordPress' code in order to do anything. On almost every single factual technical point -- not even legal matters, but technical matters about how WordPress and Themes work -- Chris is flat out wrong. Not just philosophically wrong, but literally provably wrong by anyone who can download and unzip files using their computer.

He can argue about whether his code is awesome or not, and whether he deserves to benefit from his own work or not, and whether he likes the GPL or not... but he cannot pretend, as he has in a number of situations, that Thesis is standalone software.
posted by verb at 1:09 PM on July 16, 2010 [2 favorites]


liza: you seem to be unable to understand that copyright law is not black and white. The amount of work used always matters in determining if something is fair use. The exact particulars of what is used always matters under the AFC test.

Even after stripping away essentials under AFC there would still be more then enough code around to find for infringement, and because you were using the whole work, it would be almost impossible to claim fair use.

Compare that to this case where:
Code from wordpress seems to be dictated by functionality so is excluded by AFC test.
Function calls are specifications and thus are also excluded...
I can't see any code left from wordpress after AFC to claim is being infringed on if he doesn't license under GPL. Even if there is, the amount is so small as to make it possible to make a fair use argument.

Stop setting up strawmen please.
posted by An algorithmic dog at 1:13 PM on July 16, 2010


[tips hat to BirdD0g's masterful troll. "...anyone who's ever played competitive Ultimate Frisbee..." Awesome.]
posted by rusty at 1:15 PM on July 16, 2010


As a web designer though, my siding with Chris (or moreso against GPL) comes mainly from the fact that I could create a totally original interface, but the minute it's skinned onto WordPress it's GPL?
Nope. According to the lawyers I have consulted with (not simply folks from the FSF, as some have suggested), the PHP code specifically would become part of a derivative work and would have to be GPL'd in order to be legally distributed. The image assets, CSS, javascript, etc however would not need to be licensed under the GPL. Those are not combined into a single executable program -- they are support assets that are loaded by an end user's web browser.

A couple of years ago I spent a bunch of time getting patches into Drupal to ensure that people could create themes for it that use no PHP code whatsoever. I did this because I wanted designers to be able to do great work and sell it for profit without running into GPL issues. Ironically, Thesis makes this possible -- you can create CSS skins for Thesis that aren't covered by the GPL. But Chris is trying to sell the underlying PHP code for Thesis, not his own visual design work.
posted by verb at 1:16 PM on July 16, 2010


As a web designer though, my siding with Chris (or moreso against GPL) comes mainly from the fact that I could create a totally original interface, but the minute it's skinned onto WordPress it's GPL?
posted by BirdD0g at 4:06 PM on July 16


i have a bone to pick with developers who eschew design and usability but i have a bigger hammer to wield with designers who think their CSS is greater than the actual source code of the platform their work is useless without.

dude, this is simple: anything that is not code in a design can be fully copyrighted, including the "code" of the CSS. that's actually the point of projects like ZEN GARDEN --it proved how design could be incredibly unique outside of the platform of code of what was then MovableType.

Pearson can take his images and CSS and be happily "it's my crayons and am not sharing". he can't take any code that enhances, expands or extends WordPress and call it his own. that's against the contract he accepted when he decided to develop themes for a GPL'd blogging platform.
posted by liza at 1:17 PM on July 16, 2010



The word "combining" is not a magic word, no. Please note that I specifically said they must be combined into a single executable PHP script at runtime. From a technical perspective, there is absolutely no difference between the code written by Chris and the code written by Matt at the time that the code runs. PHP loads them all, and creates a single executable program out of them, and that program builds an HTML web page.

That specific reason is why PHP, Python, Ruby, Perl, and other interpreted languages add a wrinkle to the issue of plugins and interoperability. It's not a question of 'linking' or 'working together,' even. The two pieces of code are literally combined into a single program, and that program is executed.

You mean like how dll's are loaded into the same memory space as a program and therefore the two are literally combined into a single program which is then executed. I find it unlikely a judge would base a ruling on interpreted vs compiled.

Chris's insistence the Wordpress depends on Thesis is also absurd, because WordPress includes all of the code it needs to run properly in the absence of Thesis, and all of that code is GPL licensed. Thesis does not, and must be combined with WordPress' code in order to do anything. On almost every single factual technical point -- not even legal matters, but technical matters about how WordPress and Themes work -- Chris is flat out wrong. Not just philosophically wrong, but literally provably wrong by anyone who can download and unzip files using their computer.

Dependency on copyrighted work does not make a derivative work. Otherwise firefox would be a derivative work of windows because it requires windows libraries to run on windows. This clearly is silly. There is no reason to believe dependency == derivative. It is a myth invented by GPL advocates.

He can argue about whether his code is awesome or not, and whether he deserves to benefit from his own work or not, and whether he likes the GPL or not... but he cannot pretend, as he has in a number of situations, that Thesis is standalone software.

He doesn't have to because dependency does not imply derivative.

On what legal basis do you claim that dependency on a work implies a derivative of a work. If you claim that, how do you avoid the problem of firefox being a derivative of windows?
posted by An algorithmic dog at 1:18 PM on July 16, 2010


I could create a totally original interface, but the minute it's skinned onto WordPress it's GPL?

No, that's not what the GPL says. You can create whatever you want and you retain the copyright to it and the option to license it however you want. The GPL is saying under what terms you can use some other work someone else created. If you want to take your thing and combine it with some GPLed work, making a derived work, then you have to license your derivation of that work under GPL as well. The GPL applies to you if you're using a GPLed product.

Concretely, what Mullenweg is saying is that if you want to run WordPress, you have to respect his ownership, his copyright, his license. And he says his license requires that WordPress themes be GPLed. That may or may not be legally correct and turns on interpreting the GPL with a complex, untested point of what "derived work" means in the context of WordPress themes (or more generally, addons/plugins).

People get upset all the time about the GPL that it "deprives them of their rights". It's kind of the same argument that has ASCAP claiming that Creative Commons is somehow robbing musicians of their rights. You are entirely free to avoid the GPL. Just don't use GPLed code.
posted by Nelson at 1:21 PM on July 16, 2010


The word "combining" is not a magic word, no. Please note that I specifically said they must be combined into a single executable PHP script at runtime. From a technical perspective, there is absolutely no difference between the code written by Chris and the code written by Matt at the time that the code runs. PHP loads them all, and creates a single executable program out of them, and that program builds an HTML web page.

Well, if you want to get technical, on any given computer there is no hard line between any two programs running because at the end of the day they all end up running as individual instructions that the CPU executes in sequence. It's not really obvious to me why some interactions (like function calls between different script files facilitated by an interpreter) would result in something being a derivative work and other interactions (like socket connections facilitated by the OS and/or network) would not, even if those different interactions result in the same end product in terms of functionality. It seems like if Wordpress was built differently, the same theme functionality could technically be built using the same sorts of interactions that a browser has with a web server. I'm not advocating one interpretation or another of a derivative work, but it doesn't make sense to me that programs that do fundamentally the same thing could be derivative works or not based on the technical details of the method they use to interact with the original work.
posted by burnmp3s at 1:27 PM on July 16, 2010 [1 favorite]


Burnmp3s: Exactly. After you have written a few loaders and linkers and understand how things like dynamic relocation work it becomes very hard to figure out how to define things like derivative work by linking. If I write my own custom elf loader that loads my own custom code into your gpl code at runtime and hooks into the appropriate functions to redirect control flow to my code when appropriate ... is my code GPL? I have no idea. :P How about if I forcibly load a dll and hook functions after the program is already running? (Possible with closed and open source apps). Is my code GPL? Linking based definitions of derivative just don't make sense when you consider how computers actually work.
posted by An algorithmic dog at 1:34 PM on July 16, 2010


There is no reason to believe dependency == derivative. It is a myth invented by GPL advocates.
No, it's invented by the text of the GPL. You can argue about whether it's enforceable, or whether the FSF is full of assholes,
You mean like how dll's are loaded into the same memory space as a program and therefore the two are literally combined into a single program which is then executed. I find it unlikely a judge would base a ruling on interpreted vs compiled.
The DLL linking issue is specifically dealt with in the GPL and clarified by the FSF's FAQs on the topic.

I understand that these questions are confusing, but having spent a lot of time trying to get clear and easy-to-explain answers to them, and getting those answers, it is frustrating to talk to people who insist that the said questions are stumpers because they haven't yet looked up the answers, or because they have not actually read the GPL and are basing things on their gut feel of "how software probably aught to be."

There are lots of arguments to be had about whether the GPL is good, or bad, or appropriate for a particular project. But the lawyers who wrote the license in question have explained what they intended it to communicate, and what they believe it to communicate, and what they believe is enforceable. Thus far, their claims about it have held up in court.
posted by verb at 1:38 PM on July 16, 2010 [3 favorites]


i have a bone to pick with developers who eschew design and usability but i have a bigger hammer to wield with designers who think their CSS is greater than the actual source code of the platform their work is useless without.
To encapsulate design with color crayons and CSS is nonsensical. Applications are designed. Systems are designed. Where intellectual property is involved – technology, music, art, science, etc. – we're all taking existing things and creating entirely new things. Sometimes it's .05% new, other times revolutionary.

It's pointless to argue it. It all depends on what constitutes a derivative work in a specific case, and going to the FSF attorneys for the answers isn't exactly the best solution considering they wrote the book and it's gone uncontested. Somebody needs to sue somebody. :-)
posted by BirdD0g at 1:39 PM on July 16, 2010


If I write my own custom elf loader that loads my own custom code into your gpl code at runtime and hooks into the appropriate functions to redirect control flow to my code when appropriate ... is my code GPL?
No, it is not GPL'd unless you release it under the GPL. But if we accept that the two programs are tied together in a way that makes them a single derivative work, you would not be able to distribute that combined work without violating the terms of the GPL that part of the work is licensed under.
posted by verb at 1:45 PM on July 16, 2010


Wow, I made it halfway through the thread thinking we were talking about WordPerfect, and that WordPerfect themes were some weird equivalent to Excel macros, not to mention wondering when the hell WordPerfect went open source.
posted by Evilspork at 1:46 PM on July 16, 2010 [3 favorites]


Verb: If X is under the GPL, and I am not distributing X, the text of the GPL is irrelevant.

If I am distributing Y, which links against X, unless Y is a derivative work of X by copyright law I do not need a license to distribute X.

If Y IS a derivative work, then I have to obay the GPL.

It is not clear that Y is a derivative work. This is the subtle issue with the linking debate. What the FSF says the consider to be a derivative work is irrelevant because their definitions do not come into play until after we have already established that Y is a derivative work under copyright law.

I've spent an equally long amount of time talking to lawyers, and this is a real issue. The OSS community pretends its not, but its a giant legal unknown.


No, it is not GPL'd unless you release it under the GPL. But if we accept that the two programs are tied together in a way that makes them a single derivative work, you would not be able to distribute that combined work without violating the terms of the GPL that part of the work is licensed under.

Right, so really it comes down to what is a derivative work. And this is unclear as hell. It is no more clear in this specific case then it is in this contrived one. The world is in dire need of some case actual rulings here. I think we will end up with some sort of multipronged means test, but I really don't know.
posted by An algorithmic dog at 1:48 PM on July 16, 2010


Having said that I'd never advise someone to act in blatant bad faith. It certainly seems like judges when inventing rules like to smack down the people who are acting in bad faith. But with the meaning of derivative work undefined its not clear to me that there is bad faith at work here.
posted by An algorithmic dog at 1:51 PM on July 16, 2010


I have no idea whether there are any relevant rulings on whether Y is a derivative work of X, but it seems like a pretty reasonable test would be "Does Y do anything without being linked into X (and only X)?" No? Then you're distributing Y with the intent of the user linking it into X and running the whole thing as a derived work.
posted by rusty at 1:59 PM on July 16, 2010


Rusty: Firefox for windows does nothing without windows. That is the exact problem with that "Does Y do anything without being linked into X" argument. Even if you want to argue that windows gives people permission to do that it leads to all sorts of bad things. There has to be a more substantial test then that unfortunately.
posted by An algorithmic dog at 2:02 PM on July 16, 2010


No? Then you're distributing Y with the intent of the user linking it into X and running the whole thing as a derived work together.
This happens all the time, but doesn't negate the fact that there's original, written, copyrightable material involved. Just because something only works as an extension of something else doesn't necessarily mean it originated out of the source. *whew, really getting hard to articulate these minute facets of this argument*
posted by BirdD0g at 2:09 PM on July 16, 2010


No? Then you're distributing Y with the intent of the user linking it into X and running the whole thing as a derived work.

Oh I missed this. There is no legal basis for distributing something with the intent of the user doing something and running it as a derived work, if it is even a derived work. Copyright is determined when something is written, not at runtime, at least not by any legal theory ever employed in court. Even then, the user has permission to run the software, so it is still permissible. You'd have to go and extend copyright law in some bizarre way to prohibit distributing a work with the intent of a user using it in a way that it would not be permissible to distribute. But that has its own issues as a test, besides being completely unjustified in law.
posted by An algorithmic dog at 2:20 PM on July 16, 2010


An algorithmic dog: What would your proposed test be?
posted by rusty at 2:24 PM on July 16, 2010


liza: you seem to be unable to understand that copyright law is not black and white. The amount of work used always matters in determining if something is fair use. The exact particulars of what is used always matters under the AFC test.


OMFG BWAHAHAHAHAHAHAHAHAHAHAHAHAHA! DO YOU KNOW HOW MANY TIME I'VE BEEN C&D OUTSIDE AND UNDER THE DMCA? Do you have any idea how many websites i've had blackholed due to copyright disputes?

lawd.

the amount of work matters NOTHING and i mean NOTHING in copyright disputes. i can't easily find the lawsuit, but the precedence on this was set by a photographer who sued Time Magazine because his photo was in the background of a cover-pic. he sued for copyright infringement and won on account of Time Inc not properly licensing his work, even though his work was not the subject of the photograph but an incidental prop in the background of a featured photograph.

this, btw, is why shows like iCARLY have fake products like the iPear. they don't want to pay Apple the rights to have their products featured on their show (and it makes for an awesome visual gag.)*

i could go into details how i had my scuffles with Time Warner over Brangelina or Mattel over Barbie, but that's more about copyright than GPL licensing --although PLAGIARISM would be a comparable situation. Pearson is writing a pamphlet that depends on WordPress for context but he decides to call, distribute and sell all the quotes from the WordPress "book" his own. he can't do that. that would be Two Live Crew all over again ---and, btw, am an antiDMCAist, but that's the reality we're dealing with right now.

and another btw: comparisons between WordPress as a blogging platform and an operating system like Windows are invalid.

WordPress still needs an operating system to work, yes, but it is a complete soft-"machine". Matt could easily take his soft-machine and adapt it to which ever operating system and DB architecture scratches his developer itch and it would still be a complete work without Thesis.

Thesis on the other hand, can't stand on it's own. it works as an extension of WordPress and for that matter, it falls inside the purview of the GPL.

this is not like the case of CiviCRM running as a module for Drupal; although their licensing issues wasnt so much about proprietary but about the flavor of GPL they wanted to use. and, yes, CiviCRM can run on its own as a stand-alone; which Thesis, again, cannot do.

this is a "crayons, mine!" issue with Pearson and i have to give it to Matt for exhausting every single channel of communication before suing. nobody really likes going to court. but i look forward to WordPress winning. whiny babies like Pearson need to learn that making a buck is AWESOME in the FOSS community but appropriating the source code of FOSS projects by claiming your contribution as proprietary is not only dickish, it's theft.


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* yes i have tweeners. yes i watch the show. yes i like it. no, dont judge me :D
posted by liza at 2:43 PM on July 16, 2010


Well, to be fair, it's not theft. It's copyright infringement, which I've noted in media piracy discussions and will note here again for the sake of consistency. It is an intestine reversal of that dynamic, though - normally when copyright issues come up, there are complaints that the masses are freely sharing something that an individual created and should profit from. In this case the complaint is that an individual is profiting from something created by the masses without sharing it. Chris did a lot of work on Thesis, and it is very good work, but he has made profoundly indefensible claims when arguing with Matt and others in the WP community. The FSF and the lawyers who drafted the GPL present a clear explanation of their position. Those who disagree with them seem to consistently fall back on tortured analogies to explain why it Should Not Be, or why other things governed by different kinds of law don't work that way, or why it is unfair.

It is certainly true that this particular issue, the one of distributing an "inert" cosed source component that must be combined with a GPL component to be used, has not been specifically tested in court. Other companies have backed down rather than risk it. I would love to see this resolved well, but I think that it would also be helpful to see an actual case settle this very specific aspect of GPL law. Chris seems very eager, but I worry his obvious dickishness would pollute the trial. More useful would be two entities with real lawyers on their sides, arguing the cases without being total assholes.

I think it's fair to say that An Algorithmic Dog's objection to the FSF's interpretation of the GPL revolves around the precise definition of "linking" and "combining" and "distribution."
posted by verb at 3:19 PM on July 16, 2010 [1 favorite]



the amount of work matters NOTHING and i mean NOTHING in copyright disputes. i can't easily find the lawsuit, but the precedence on this was set by a photographer who sued Time Magazine because his photo was in the background of a cover-pic. he sued for copyright infringement and won on account of Time Inc not properly licensing his work, even though his work was not the subject of the photograph but an incidental prop in the background of a featured photograph.

So what you are saying is that Time used the whole photograph and got nailed for it? Sounds reasonable.

The four tests for fair use are:
Purpose and character
Nature of the copied work
Amount and substantiality
Effect upon work's value

However, the test is pretty subtle because the entire work can be found noninfringing or a very small sample can be. But amount of the work used is absolutely relevant, but only as one of four things considered.

Analogies don't work for software. You MUST apply the Abstraction Filtration Comparison test.

"The second step is to remove from consideration aspects of the program which are not legally protectable by copyright. The analysis is done at each level of abstraction identified in the previous step. The court identifies three factors to consider during this step: elements dictated by efficiency, elements dictated by external factors, and elements taken from the public domain." "Eliminating elements dictated by external factors is an application of the scènes à faire doctrine to computer programs. The doctrine holds that elements necessary for, or standard to, expression in some particular theme can not be protected by copyright.[8] Elements dictated by external factors may include hardware specifications, interoperability and compatibility requirements, design standards, demands of the market being served, and standard programming techniques.[9]" (From wikipedia article).

Only after removing things of this nature do you compare for copyright infringement, and then you argue fair use.

In particular, even borrowing code directly need not be infringement because of AFC.

See http://www.ladas.com/Patents/Computer/SoftwareAndCopyright/Softwa06.html

"In Computer Management Assistance Co. v. Robert F. DeCastro Inc. [49] It was pointed out that the doctrine could be used to filter out hardware standards and mechanical specifications, software standards and compatibility requirements, computer manufacturer design standards, target industry practices and demands and computer industry programming practices"

Requiring another program in and of itself to operate is not sufficient to establish derivative status by ANY precedent. You can't just start making up new legal doctrines because it is convenient, and this is exactly what the FSF does.
posted by An algorithmic dog at 3:29 PM on July 16, 2010


In particular see This enlightening thread.

The most relevant "response" to this theory IMHO is the lack
of response, that occurred when Linus (as "project manager" of
sorts IRT the kernel) made his statement almost two years ago
that he did not consider kernel modules as derivative works
*in* *principle*. It's reasonable to assume that if someone
(especially EM) tought he was completely off his marker, this
someone would have called attention to the subject.

So there is dissent even in OSS about the standard even by Linus.
posted by An algorithmic dog at 3:39 PM on July 16, 2010


@verb

Well, to be fair, it's not theft. It's copyright infringement

legally: absolutely true.

morally? *side-eye*

Chris did a lot of work on Thesis, and it is very good work, but he has made profoundly indefensible claims when arguing with Matt and others in the WP community. The FSF and the lawyers who drafted the GPL present a clear explanation of their position. Those who disagree with them seem to consistently fall back on tortured analogies to explain why it Should Not Be, or why other things governed by different kinds of law don't work that way, or why it is unfair.


my understanding of copyright infringement is that the issue rests on whether the source material is too close or so far away from derivative that the derivative can stand on its own.

i really, really, really wanted Mark to counter-sue Mattel and go to court over The Distorted Barbie. this was BEFORE the DMCA but literally months after we had our first son. it would have left us broke. this was 1997 and people really didnt have enough history of how copyright law was being wielded as a tool for censorship. even though the case became one of the first manifestations of viral creative dissent online, we didnt have enough pull to raise the hundreds of thousands of dollars needed to smack Mattel back.

that's why we were ecstatic when we heard Tom Forsythe was raising a cool million for his defense of "Food Chain Barbie". that project was in the spirit of The Distorted Barbie and we knew that he had a good chance of winning ----and he did.

fast-forward to 2006 - Above.net blackholes my site and keeps it hostage because i wrote about how stupid Time-Warner dealt with the Brangelina-Shiloh exclusives --and included an image of the cover of a magazine that had a detail of one of the pics in their spread. OCILLA upends the presumption of innocence by using IPs (not even hosting companies, mind you) as enforcers. and in this case it doesnt matter how much or how little, how complete or how dependent the "infringing" material is.

what people don't seem to get about Matt's reticence is that if Matt & WordPress invoke OCILLA, the next step would be to force ISPs and/or hosting companies to take down all blogs using Thesis. we're talking about hundreds if not thousands of C&Ds. that's how the DMCA was written and that's how they would have to enforce it ---a totally separate issue from dealing with the GPL dispute. .

in other words, it would be a mess.

and i am not of the camp that believes Pearson is clueless. for whatever reason the guy is getting-off on this conflict and doesn't really care of the consequences that could bring to the platform that is the foundation of his bread and butter. he's not only acting like a dick but he's being destructive as well.


I think it's fair to say that An Algorithmic Dog's objection to the FSF's interpretation of the GPL revolves around the precise definition of "linking" and "combining" and "distribution."

yeah, but it still doesn't make sense. i mean, you and i agree that technologically it doesn't make sense. Thesis depends on WordPress. Without it, it's not a complete "soft-machine". Hence the derivative classification.

anyhoo: looking forward to the lawsuit.

TEAM MATT!
posted by liza at 4:06 PM on July 16, 2010


Of course if they send out C&D's, Chris would almost certainly countersue and may even receive an injunction prohibiting them from continuing. Sending C&D's would be tantamount to suing except that by sending C&D's they would be opening themselves up to massive damages if they lose. Far better to directly sue Chris. That way the most they are likely to lose is legal fees. It would be exceptionally unwise to start by threatening Chris's customers.
posted by An algorithmic dog at 5:23 PM on July 16, 2010


Those that skew Libertarian (myself included) usually have major problems with people telling them what they can and can't do outside our their moral compasses and the most basic laws of civilization.

Well, most libertarians seem to think property rights are a basic law of civilisation, and he's breaking someone else's property rights.

Unless this is another one of those "libertarian means social and ethical senses less well-developed than the average toddler in the midst of a tantrum" definitions.

Certainly linking can make a derivative work but saying that is sufficient seems to be a gigantic stretch.

He didn't link - he cut and pasted code.

I think it's really tough to call something that's 95% original a derivative work

Try writing a novel or composing a song with "only" 5% cut-and-pasted from someone else. See how that flies.

Of course, if the GPL is as half-arsed as our amature lawyer contends, I'm not sure why the likes of Cisco keep folding when they violate it.
posted by rodgerd at 8:53 PM on July 16, 2010


It seems to me that that a community of bloggers interested in software and software licensing issues is a powderkeg of massive proportions. It's only surprising that something like this hasn't erupted already. Someone more familiar with the WordPress community may wish to correct me if I've gotten the wrong impression.
posted by LiteOpera at 12:48 AM on July 17, 2010


verb wrote: If I have GPL eggs, and you have closed-source flour, it is impossible to create a legally licensed cake from those ingredients. Either the GPL's requirement that derivative works also be GPL'd is violated, or your closed-source license's requirement that your software not be redistributed is violated."
Just to be really pedantic and clear (and to check my understanding): Eggs and flour are both separately useful for other things, so my understanding is that you can make this cake for your own consumption. It's when you start to sell or otherwise redistribute this cake that your flour must be GPL'd and you must provide the recipe. Right?
posted by secretseasons at 9:11 AM on July 18, 2010


Just to be really pedantic and clear (and to check my understanding): Eggs and flour are both separately useful for other things, so my understanding is that you can make this cake for your own consumption. It's when you start to sell or otherwise redistribute this cake that your flour must be GPL'd and you must provide the recipe. Right?
Yes! Totally correct! 100%! That is the position of the FSF and the SFLC lawyers that we consulted with.

The legal trick comes when you build EggEnhancer2000™ that isn't actually useful or functional on its own, and only works in the presence of GPL Eggs, and showing off how awesome EggEnhancer2000™ + GPL Eggs is. You release EggEnhancer2000™ as a closed-source product, and charge $100 for it, ensuring that GPL Eggs + EggEnhancer2000™ can never be redistributed by your users.

The reason for this becomes clear when you look at the reason the GPL was created: Richard Stallman and the FSF believed that users (in his mind, programmers working with source code are the "users") of software should be able to monkey around with the code, fix bugs, make enhancements, and share those enhancements with others. Companies could refuse to release their own changes, charge for their own enhancements, etc. -- but once they handed it to a user, they could not prevent that user from sharing the enhancements with others. It's a license designed not to protect the rights of programmers selling stuff, but to protect the ability of users running the stuff to continue building and enhancing cross-pollinating.

There are serious downsides, especially in areas where desirable enhancements require significant up-front R&D investment that programmers want to recoup, but at the end of the day Stallman and the FSF have always been very open about the GPL's purpose and its intent. Given that background, I think it's pretty clear why they argue that someone marketing our hypothetical EggEnhancer2000™ is trying to hide behind a technicality, violating the clear meaning and intent of the license.

Although that specific separate-distribution-of-a-dependent-enhancement example has not been tested in court, the FSF insists that it is essentially a transparent trick, and what you're actually creating, marketing and selling is a derivative product (GPL Eggs + EggEnhancer2000™). I'm totally aware the some people disagree with this reading, and some people feel this interpretation wouldn't hold up in court, but the FSF's lawyers have a pretty solid track record of sticking to their guns and winning when the license is challenged.
posted by verb at 10:19 AM on July 18, 2010


A few days ago Wordpress.com, with **no warning**, substituted a new theme, "Coraline" for Pearson's "Cutline" theme, while completely dissembling on the reasons why (stated reason, Coraline is more up to date; real reason they are on the record for elswhere: they don't want to "encourage" non GPL licencing). As it happened, Coraline is not a perfect clone of Cutline and a lot of people lost a lot of time reformatting their blogs which had had their appearance fundamentally altered. They now have a fairly seriously pissed cohort of bloggers over there including myself, who see this as a bullshit move on Wordpress's part and have no other real dog in the fight. So, sometimes it seems to me, you can be wrong for the right reasons. Fuck wordpress.
posted by Rumple at 10:01 PM on August 14, 2010


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