Thesis and the GPL

Thesis 1.7 in /lib/classes/comments.php line 123:

class thesis_comment extends Walker {
	var $tree_type = 'comment';
	var $db_fields = array('parent' => 'comment_parent', 'id' => 'comment_ID');
...

The thesis_comment class extends upon WordPress code and provides additional functionality. It is not just calling WordPress functions. That in my opinion makes it derivative work, not simply dependent work, and therefore violates the GPL.

Update: Drew Blas has posted a far more in-depth analysis of GPL’d code in Thesis.

95 thoughts on “Thesis and the GPL

  1. I asked this question in a tweet, but if WordPress was fully object oriented, would the GPL question be less of an issue in relation to themes, and more specifically, theme frameworks?

  2. David says:

    Extension is NOT indicative of a derivative work. Do more research next time before you ignorantly shout you mouth off about something you clearly know nothing about.

    • That’s your opinion and I’m entitled to mine. Perhaps you can be more constructive next time and actually post something that backs up your opinion so we can discuss it.

    • I agree with Andy. Chris even said in his interview he doesn’t inherit anything from WordPress – this example Andy posted in this entry is the textbook programming 101 example of object inheritance. In object inheritance, the data structures are separate but the code is shared, hence the need for a $this pointer to regain context of the data structures. When you call a method on an object that only exists in the base class, that code is physically executed in the base class – it’s not new code, it’s reuse of old code.

      • This is exactly right.

        The whole reason for extending a class is to DERIVE functionality from the parent class. Its hard to believe this point is even being debated.

        • TookSomeIPLaw says:

          No, if you extend and object and then sell the compiled code you are in violation. If you write a class in a procedural language and don’t distribute compiled code you are not in violation.

          Think about it this way, anything you can write on paper without copying (that is original) is not a derivative work. It doesn’t magically become a derivative work simply because you input it into a computer. Only if you compile it along with someone else’s work it becomes a derivative work.

          Every law article ever written on the US Constitution DERIVES meaning from the US Constitution but that doesn’t mean that it is a derivative work. A derivative work would be if another country (or a state) took the US Constitution, modified it, and used it (or just published it).

          • PHP code ‘compiles” at run time into opcode in one process, does it not? While compiled vs. interpreted code is a bit of a gray area (given where the GPL roots lie), its a very weak argument against GPL Inheritance, since what happens after the source code is run is even more damning to “that side” of the debate.

  3. This is the most convincing argument I’ve heard on the subject. The reason being is that extending a class incorporates the other class into the new class. This goes well beyond the discussion of hooks and actions. It no longer is just a matter of the two products working only when side by side. It’s also not the case where you could say that WordPress is the one that is pulling the theme into it’s functionality (like a knock off Wii remote being used by a Wii console) . In this case, thesis_comment actually makes use of the WordPress source code.

    I’ve stayed out of this so far as it is so ambiguous that only court precedence would be the deciding factor. But with this particular case, thesis in particular might have an issue to fix.

    If Thesis copied every single line of the walker class into his source code, it would be a clear violation. However, this is merely the functional equivalent of doing that. Very shaky ground for Thesis.

  4. Thesis is definitely a derivative work. It is useless on its own without WordPress. I don’t think that the software itself is violating GPL, though, since they are selling it, which is OK, and they are providing the source with the distribution. The software is extending GPL software, so therefore is automatically GPL itself. Once you legally obtain a copy of the distribution, you can do whatever you want with it.

    The “violation” of GPL is with their licensing terms which say you are not allowed to resell or bundle Thesis. They can say this all that they want, but when they chose to extend GPL software, they forfeited the right to make such restrictions.

    I do not use Thesis, but I would not hesitate for a second to re-distribute it for a profit without buying additional licenses.

    • I would not recommend that. Just because he’s violating the license doesn’t mean that his license is invalid as well.

      Yes, the theme is in violation, but its license is still how it is licensed. It doesn’t automatically become GPL’d; he actually has to make it so because, after all, he did write it. It’s his copyrighted code.

      It’s never cool to violate an author’s license. Two wrongs don’t make a right.

      • No his license is not invalid, it is moot.

        From the GPL preamble that ships with WordPress.

        When we speak of free software, we are referring to freedom, not price.  Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things.
        
        To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it.
        
        For example, if you distribute copies of such a program, whether gratis or for a fee, you must give the recipients all the rights that you have.  You must make sure that they, too, receive or can get the source code.  And you must show them these terms so they know their rights.

        Thesis is a work based on and requires WordPress which is GPL. I can’t see how anyone could seriously argue against that.

        This means that the Thesis author is surrendering his rights to restrict the freedom of the derived software in any way.

        The GPL was created to prohibit exactly what Thesis is doing. Thesis is leveraging WordPress to create a product which is being released under a license that restricts the freedom of the purchaser of the software from doing what they wish with it.

        Regarding the copyright, that is fine. The Thesis author will always own the copyright to any unmodified code, but he gave up the right to control the freedom and distribution of his copyrighted product when he decided to base it on GPL’d software.

        This is not a situation where “two wrongs don’t make a right.” If I purchase a copy of Thesis, I am protected by the GPL. By redistributing it I would be well within my rights, and not doing anything wrong. Thesis is not the victim here. The thousands of contributing authors who collectively make up the copyright holders of WordPress are the victims.

        • Spacemonkey says:

          That reasoning is dead wrong – just because he is in violation of the license that WordPress uses, does NOT mean you can just do whatever you want with it.

          The only entity that can reasonably take issue with his choice of license is the copyright holders of WordPress, of whose license he’s decided to violate (whether knowingly or not).

          You cannot just say “hey this is a violation of the GPL, I’m going to re-license it under the GPL myself and give the source away to anyone that wants it” because it’s not your software, it’s not your copyright, and it’s not yours to decide what license to redistribute it under.

          I’m definitely not in defense of anyone here, just sharing what I went through with Joomla and hoping it provides some insight.

        • Alex Young says:

          You may become right at some point in the future, but you aren’t right *yet*. As it stands, Thesis is not distributed under the GPL, so you can’t apply your GPL-ensured freedoms to it. According to what I’m reading, it is pretty much inevitable that Thesis will at some point either be forced to switch license, *or* be withdrawn from distribution. In the latter case, while you may have a copy of the code, you will have no distribution rights at all; copyright remains with the author.

          Similarly, until the Thesis license is switched, you also have no distribution rights. The GPL does not come into effect until it is positively applied by the Thesis author – no matter whether he should have already applied it or not. If he’s legally forced to do so, that’s great, but as yet, he hasn’t been.

        • Then you are more at fault than Chris Pearson could be. Failing to obey someone else’s license is illegal and immoral. You wouldn’t stand a chance of defending yourself in court if you went ahead with this. Chris can at the very least argue that his theme is not derivative. You on other hand are not suggesting creating a derivative, you are suggesting copying a piece of work and selling it in direct violation of it’s licence. That’s blatant piracy.

  5. Spacemonkey says:

    I’ve lived this debate already with Joomla – and the conclusion was that the template PHP code was subject to the GPL as it required Joomla to run, but the CSS, images and any other non-PHP code was not because it was completely independent from Joomla.

    The test was this question – what is rendering this thing, is it coming straight through apache, or is Joomla building it for you? And in the case of anything not ending in .php, the answer was no.

    You’ll see many Joomla templates being multi-licensed as a result, with all PHP code being GPL and everything else being whatever license the author chooses.

    I’d be pretty surprised to see WordPress themes being any different, and would like to know if there’s a strong argument in that regard.

  6. Andy says:

    So you are saying that extending any class in any library automatically makes your software a derivative work and subject to the terms of the library’s license? That would cause all kinds of problems for software developers who use 3rd party libraries.

    The GNU licence defines a derivative work as something containing the Program or a portion of it. I wouldn’t say that extending a class counts as containing it – maybe you could argue it does in binary form but it certainly doesn’t in source form. Don’t confuse *using* something with *containing* something – my Excel spreadsheets are unusable without Excel, but that doesn’t make them a derivative work.

    Is the following sentence true: The source of the Thesis theme can be distributed without containing any of the WordPress code. I think it is. And if it is then it’s not a derivative work, so the Thesis developers can licence it as they please.

    • How does it cause problems? It merely means that the product must adhere to the licensing involved. That might create specific issues with certain licenses, but does not mean the whole concept of extending libraries.

      In fact the opposite would be an issue. If I created an extension of a commercial programming library, it does not negate the licensing of that library at all. It would not mean anyone who buys my product can get the parent library in any fashion they choose.

      Most licenses don’t specify the license the derivative work must use. Chris’s issue is that he does not believe the GPL can do this for his product. I suspect that fundamentally he does not believe that the GPL can legally do so under any circumstances and that a court case would support that decision.

      • If he wanted to be able to control the freedoms of his software, then he made a mistake by basing it on WordPress.

        He is profiting on the work of others without passing on the same freedoms that he was granted under GPL, and is required to pass on with the distribution.

      • @Alex Young:

        The FSF is a GPL advocacy group. It’s position is only that; it’s position.

        Note, I’d prefer to see that “Themes must be GPL” but I am wide-eyed objective about it and would prefer to have a watertight legal foundation than the opinion of an advocacy group. Unfortunately I’ve not been able to come across the former.

        I really do hope Matt sues; that’s probably the only way this question will ever get answered.

    • I hear the argument a lot that making library or function calls does not constitute a derivative work, but that is silly. If WordPress defines a function and its arguments, and you call that function and arguments, you are deriving functionality from that software.

      If library calls were allowed, then I could create a derived work that is simply a few wrappers around key WordPress functions required to run the program, and then sell it under a restricted license.

      To further my point, they created the LGPL which is less restrictive than GPL explicitly for the purpose of allowing programs to make api/library calls without having to pass on the GPL freedoms. So if this is allowed under GPL, why did they create another license?

      As far as your Excel analogy, I understand the point you are trying to make, but your example doesn’t work. For one, Excel is not GPL software. You can’t start making comparisons between the two because Excel is proprietary software sold as a binary only, and under a restrictive license.

      In addition to that, your spreadsheet is just output of Excel, it is not a program. This would be similar to using a GPL image editor to create a graphic. You don’t have to make your graphic file GPL.

      The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the
      Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.

      Thesis is part of the WordPress program. It derives functionality and modifies the interface and behavior. I doubt anyone could convince a judge that Thesis is not derived from WordPress.

      • @Marshall: Your argument of “derivative” may well be appropriate colloquially but I do not think it is a valid legal use[1] of the term (although IANAL.) This argument also doesn’t not consider whether Chris’ work is “transformative“[2] or not.

        The much more compelling concern is that Thesis copied the threaded comments code. THAT would be how I would tackle this specific issue.

        OTOH, I do hope Matt will sue; that way this issue will be resolved by a judge or jury in a real court of law by real lawyers and not without a judge or jury in a court of public opinion with “arm-chair quarterback” lawyers (of which I am one. :-)

        [1] http://en.wikipedia.org/wiki/Derivative_work#Definition
        [2] http://en.wikipedia.org/wiki/Derivative_work#Transformativeness

  7. LemoineM says:

    Let’s be clear here guys…

    First, I’m sorry I don’t know everything about this story since I only read this single post. If someone would kindly provide me a link where I could read more, I’d do so eagerly.

    Now, if we speak about the GPL license, the term “derivative work” is still in a gray area. however, a few things are clear: static linking IS derivative work, while fork-and-exec isn’t. Dynamic linking is the gray area. PHP linking is really hard to tag as static or dynamic since there is no proper compilation nor linking stage. I would say, IMHO, that it always is dynamic, since you can trivially change the implementation for one execution to another without doing anything but replacing the files containing the “library” (WP in this case if I understand correctly).

    Otoh, If we speak about the LGPL, then linking, either static or dynamic is always allowed. HOWEVER, this is a license-related issue. NOT an OO related issue. Since when does OO (or any programming paradigm fwiw) have anything to do with licensing ? As far as I understand, WP is under GPL, not LGPL.

    The fact that Themes released by WP are GPL, does not mean that all themes for WP have to be GPL. It’s a choice from the authors.

    Finally, I never heard of anything statement concerning PHP linking/inheritance being derivative work or not. The core of the problem is (from my pov) static vs dynamic. If it is ruled to be static, then it is derivative. If it is ruled to be dynamic, then it’s on a per-case basis and only a lawyer (or at least someone with a bit more law experience, which I ain’t/don’t have) could answer that.

    It looked like a few of you were confused about the whole license thing… I just hope this could help to clarify it a bit.
    I didn’t had any reference cause you will find plenty of them by just googling it (incl. linux journal, wikipedia entries about GPL and LGPL, the text of the GPL and LGPL themselves).

  8. Spacemonkey says:

    Looks like the redistribution thread got too deep and I cannot reply, going to reply here.

    Marshall said: “I sure can if I paid for a copy.” in the context of buying a copy of Thesis and then redistributing it under the GPL.

    This is a huge armchair attorney assumption that has to stop, like a bad internet meme.

    That is wrong because it is not released under the GPL. You cannot assign your own license to someone else’s code. He’s not redistributing WordPress, this is his code. So you simply have zero rights as someone who purchases that code to turn around and do what you think is right.

    Not saying what he’s done is correct – but it is a problem that you and I do not have the right to “fix” by turning around and violating his copyright and distribution terms because his software interacts with someone else’s software that is GPL but also doesn’t happen to be yours, either.

    In a nutshell, if you’re not a copyright holder of either the work in question (Thesis) or the upstream software (WordPress) than you are not entitled to anything but your opinion.

    What needs to happen in this case is the copyright holders of WordPress must decide if they deem Thesis to be in violation of the GPL by being a derivative work. From there they can choose their path – do nothing, try to work with him directly, or pursue with legal means.

    Again though – and it is critical that this is clear to everyone because it keeps getting stated wrongly, over and over again – if you don’t have any interest in the copyright of either the disputed work or the infringed upon work, you are not a contestant, you are a bystander. Vigilante justice doesn’t help anyone in this regard.

    • Its rather plain English, so lets put it up and have a debate. I am not attacking anyone, just think that bringing up lawyers and all of that is silly, because I thought us open source guys are smart enough to understand the spirit of the license.

      0. This License applies to any program or other work which contains
      a notice placed by the copyright holder saying it may be distributed
      under the terms of this General Public License. The “Program”, below,
      refers to any such program or work, and a “work based on the Program”
      means either the Program or any derivative work under copyright law:
      that is to say, a work containing the Program or a portion of it,
      either verbatim or with modifications and/or translated into another
      language. (Hereinafter, translation is included without limitation in
      the term “modification”.) Each licensee is addressed as “you”.

      The way I am reading that, any worked based on a program that is GPL is automatically GPL if proper notice was posted, which in the case of WordPress, there is a license.txt in the root directory of the source.

      Thesis based their product on WordPress which is GPL. WordPress is shipped with a notice that if you choose to base your software on it, it will be GPL too.

      I think the fact that Thesis does not “ship” with WordPress is just semantics. By that logic I could create a one line script that requires WordPress and provide it as a separate download to get around GPL. That example is very simplistic, but I am only trying to make a point.

      • Alex Young says:

        0. This License applies to any program or other work which contains
        a notice placed by the copyright holder saying it may be distributed
        under the terms of this General Public License.

        The copyright holder in Thesis is Thesis’ author, *not* WordPress. That means that he has to *explicitly* grant the GPL, otherwise you have no right to distribute Thesis itself.

        What this means is that morally, you’re right (I think). Legally, there are some technicalities to go through.

        • The whole idea of GPL was to prevent this from happening. You can’t derive from GPL code and then hijack the freedoms. The reason authors put code under GPL instead of numerous other licenses is to guarantee the freedoms to all future users of all derivative works.

          Thesis is a derivative work. They own the copyright, but forfeited their right to restrict the modification or distribution the second they released it containing code derived from a GPL program.

          You have to follow the chain of code, not the chain of licensing. If there is code that is derived from a “parent” program, and this “parent” program’s source gave notice that it is GPL, then the derivative program is automatically GPL.

          Thesis author was given notice that his derived work would be GPL. A choice was made to move forward anyways. You can’t put the genie back in the bottle. The Thesis license cannot trump the GPL license.

          Pretend you are the author with the idea to create Thesis and then read the GPL license that ships with WordPress. That will give the correct context for this debate.

          • Spacemonkey says:

            “Thesis author was given notice that his derived work would be GPL. A choice was made to move forward anyways. You can’t put the genie back in the bottle. The Thesis license cannot trump the GPL license.”

            This is totally incorrect. The copyright holder to the Thesis theme is the ONLY PARTY that can choose the license for their work. Nobody else can.

            The only party that can reasonably request for either a license change or stopping distribution is the copyright holder of the work that is being infringed upon (WordPress).

            It is one thing to say he should have released Thesis under the GPL (which I agree with). It is altogether a different story to think that just because you downloaded his software it is now magically yours because you say so.

            Come on, get the facts straight. Please!

      • The “spirit of the GPL” only applies if all parties want it to apply. In this case Chris Pearson does not want it to apply so the spirit doesn’t matter, only the letter of the law. Let’s just hope Matt sues to determine what the latter of the law really is. God knows if he does a massive legal fund will materialize because of all those with vested interests in the “spirit of the GPL” applying as they want it to.

  9. mike says:

    Honestly, I don’t think anybody can say for sure what the end-result will be regarding this licensing issue. But I’m still a bit flabbergasted as to why there is this latent animosity/vilification toward Chris Pearson and his Thesis theme in the WordPress community. Had he only sold half a dozen themes, this wouldn’t have made a footnote in the WP blogosphere and everybody would’ve continued on their merry ways.

    The mere fact is that he’s a talented dev/designer who lucked out, entering the premium theme market when it ramped up and everybody hopped on the WP bandwagon. His combined earnings probably surpassed a year’s worth of Automattic payroll alone, but you know what? I don’t see any dev/designer pulling off that same stunt, as the WP market is becoming extremely saturated in this area (http://designm.ag/interviews/wordpress-theme-sellers/).  

    Chris clearly dedicated a lot of time and resources into one product he wants to secure through a paywall and more control with more rights. But because Thesis has become a cash cow with 27K+ downloads, there is so much uproar about it. Again, had he only earned a hundred bucks or so, he wouldn’t be in the spotlight. Right now, he can strong arm people (http://blogigs.com/the-thesis-like-theme/) and while it’s rebellious, unprofessional and tacky, to say the least, as soon as Thesis shifts to GPL, this type of code lifting will happen again and he’ll probably lose any desire to advance the theme down the road. If he goes this route, he might as well give himself a pay cut now, since there is no ironclad guarantee his sales will increase otherwise.

    If you rally enough people to join a mudslinging contest, that attitude will eventually grate on you (http://bbpress.org/forums/topic/whats-happening-with-bbpress#post-61151) much like it has grated on Chris. Yes, he lots of, if not too much, bravado, but there has been so much bad mojo (http://mixergy.com/chris-pearson-matt-mullenweg/) when it comes to his Thesis theme and I don’t think he deserves all the negativity either – and I’ve never even used any of his work.

    I suggest we either censor ourselves and not mention Chris/Thesis/this GPL debacle and leave him alone, or Automattic should sue DYI Themes and put the nail in the coffin already. Leave it up to the courts to decide who’s right and let that set precedent for everything else, so we can all finally move forward and focus more on the development of WP/BP.

  10. We hit the reply max again. This is in response to Spacemonkey…

    I do have my facts straight. I am going by the license, not on other people’s opinions.

    The “Program”, below, refers to any such program or work, and a “work based on the Program” means either the Program or any derivative work under copyright law.

    That is so easy to understand, I am not even sure why we are debating it. The license plainly says that if you derive from the software it is assigned to, that derived software is also under GPL. The GPL was designed to be “viral” even though that is not really the best term.

    Instead of continually telling me that I am wrong, how about state your position on why you think that Thesis is allowed to derive from WordPress but still release it under a more restrictive license. I doubt you will be able to make a case by only quoting the GPL license itself.

    • The debate is whether or not it is derived work.

      I think you are correct to say that if it is, they automatically inherit the GPL license regardless of the license they choose and you are granted the freedoms of the GPL. That is clearly stated in the license.

      I can’t make up my own laws in my house to legalize murder, I am bound by the laws of the country that I inherited regardless of what I say.

      • Sorry, we got so off track there that I forgot the original topic, lol.

        Thank you for backing me up based on the assumption that it is derived.

    • LemoineM says:

      I see two points here.

      First, the debate about is it or not derivative work, considering Alex Young’s link which states explicitly that inheritance is considered as derivative work by the GPL and the fact that WP is GPL, THEN Thesis has to be considered as a derivative work of WP. It is not even a gray area, it is clearly stated.

      However, I don’t think Marshall’s point is correct nonetheless. Two wrongs do not make one right. Thesis’s author legally ought to put Thesis under GPL because of the licenses’ restrictions. However he didn’t. The only way to force him to change that, is to go to court. Of course a robber can’t take your purse. However, once he did, no one is allowed to forcefully take the purse back. You’ve got to go to court. That’s exactly the same thing here. Of course the license is illegal but that does not mean you are allowed to ignore it.

      • I don’t think that’s a correct analogy since the law states that taking a wallet is robbery and illegal.

        The law in this instance (the GPL license) states that derived work is bound by the freedom to redistribute. Assuming it IS derived, you are entitled to redistribute because it automatically inherits the license regardless of what they state the license to be.

      • You make a good point, and thinking about it from that angle does not change my mind but does beg a new question.

        If Thesis is a derived work and is automatically GPL, which license applies until you are in front of a judge? GPL, or Thesis license, or both?

    • Spacemonkey says:

      The assertion that Thesis should have been released under the GPL license is valid, and I’m not debating that. Your constantly referring to the GPL has no bearing on the right you do not have with regards to redistributing Thesis under a license you choose, regardless of your argument’s merits.

      The fact of the matter is that Thesis is not released under the GPL, and you don’t have the right to change that. The fact that Thesis is released under a license you disagree with is irrelevant – legally there is zero ground for you to stand on.

      I’m agreeing totally with the “Thesis should be GPL” argument. I’m not agreeing with the “hey let’s totally ignore copyright law, grab some digital pitchforks and take matters into our own hands because, gosh darnit, we’re right” argument.

      Park the indignation for a second and think this through from a legal perspective, because that’s the one that matters in this debate.

      If someone releases software under a license that violates the license of upstream software, the copyright holders of the upstream software need to request the offending author to relicense under the GPL or stop distribution.

      You (and I too, for that matter) appear to be none of those people, regardless of whether Thesis should be GPL or not; and you appear to be none of the people that have copyright over Thesis and can legally change the license under which it is distributed.

      I’m not arguing against the claim that Thesis should be GPL. I’m stating that saying “I say it should be GPL so this software is now magically mine, you can have it too” is grievously mistaken.

      • If that is the case then you are correct.

        I’m not sure it is though, the license states that they automatically inherit GPL regardless. I’d like to see something that backs up the claim that you must request a change of license and that their choice of license is not simply void.

        • Alex Young says:

          I’m not sure it is though, the license states that they automatically inherit GPL regardless.

          Not quite – the license states that the owners of derivative works must distribute them under the GPL, not that it automatically applies without any action on all the copyright owners’ parts.

          As it stands, Thesis’ authors may be in violation of the GPL, and there are several ways to solve that – switching the Thesis license to the GPL is only one of them.

          I’d like to see something that backs up the claim that you must request a change of license and that their choice of license is not simply void.

          If the original license chosen is suddenly “void” for whatever reason, then there is no license. The GPL doesn’t legally apply until it is positively applied.

      • My interpretation of the license is that Thesis is GPL because it derives from a GPL program. Therefore the GPL license has been extended to the derived code automatically.

        My GPL rights would grant me a license to modify and/or distribute the copyrighted code. I would not own their copyright, just own a license to it under the GPL terms.

      • Interesting point to ponder: WordPress code is licensed under GPL because all contributors are required to license it under GPL in order for it to be included. There are thousands of contributors. WordPress couldn’t change the license in future versions if they wanted to because they’d have to contact all contributors and get them all to agree which would realistically be impossible, right?

        So, I’m wondering if it wouldn’t be possible for any of the contributors to WordPress to sue Chris for violation? After all, they all can make the same claim that Chris has violated their license. Even more, it could be a collection of contributors who got together to sue, it doesn’t just have to be WordPress/the WordPress foundation. Right?

        Check my logic here… Am I wrong about this?

  11. LemoineM says:

    From a legal stand point, I think the best consideration would be that Thesis’ author lose his (distribution and modification) rights on WP by not respecting the license. Thesis is therefore “illegal” and should not be distributed at all. No one has however any right to consider it as licensed under GPL, it isn’t, and only the author may choose to do so. Even could not re-license it itself since the sentence are often to make the author change the license (not directly changing it, legally it is quite important).

    However, unless WP’s author explicitly required an enforcement of the GPL terms (and since I assume that they are aware of the situation, as I said, I don’t have knowledge of the whole story). I think it would be seen as implicit exceptional authorization from WP’s authors to Thesis’ author to use WP this way. Now until some legal recourse is taken. The status quo is to be respected. The ball is in WP’s author’s hands I guess.

  12. Hi Andy,

    I have to say I don’t agree with this particular assessment. Simply extending Walker (making it dependent on, but not a derivative of WordPress) does not cause this code to fall under the GPL.

    For example, let’s say I created my own PHP class ‘Walker’ that can act in a similar way to the WP Walker class (or maybe even entirely differently), and I apply a closed source license. The code you show can and would operate with that class instead. Meaning that you could then run this code with mine, requiring no WordPress and no GPL licensed code at all.

    The issue is moot, however, as there are plenty of places where Thesis has actually copied GPL’ed code from WordPress. But this particular example is not one of copying, but simply interoperability.

    • That’s a fair point Drew, you could in theory apply that logic to any other use of WordPress functionality within Thesis. I’m not sure if it’s as clear cut as that though.

      Thanks for your research into Thesis GPL code use, that was very interesting.

    • Hi Drew,

      I’m not sure I agree. Sure, you could create another class with the same external contract, and that would be fine. But that’s not what was done here. He extended a WordPress class and is relying on the functionality and code from that class to function. If you remove the WordPress code, that class will stop working. Your argument seems (to me at least) like saying you don’t have to follow the LGPL requirement for a library simply because you can possibly swap it out at a later date with another vendor’s library (that wouldn’t be LGPL) that has the same API. What matters in my mind is the current usage, not a potential future usage.

  13. No offense Andy, but you have a biased opinion here because of your affiliation to Automattic right? Can you be completely unbiased in assessing right vs wrong in this case?

    I am no lawyer, nor am I a coder turned lawyer (which seems to be going on here), so I say let the judges and lawyers figure it out before anyone makes any stupid decisions to redistribute anything in question.

    Just because you (not *you Andy, just in general) interpret a license a certain way, doesn’t make it law, let the courts decide.

    I have many websites, I am not a developer but a lover of WP for it has helped me create many businesses I profit from. Only one of those websites has Thesis on it (I also have Elegant themes, Headway (which I also hear isn’t using GPL, but no one seems to say anything), several Themeforest Themes, Woo, WPZoom, and many other premium themes), but I am not a fan of framework themes because they are difficult for the average user to modify. So I don’t care either way about the outcome of this battle, except that it will hurt the entire community whoever wins….

    • No, this is my personal opinion on the matter. I’ve never stated I have intimate knowledge of licensing laws or that I speak for Automattic on the matter. I’m looking at this purely as a contributor to WordPress core.

      I do specifically state above:

      That in my opinion makes it derivative work …

  14. Alex Young says:

    Can you please cite the parts of the GPL that back this up. I am not arguing, just don’t have the time to research this atm.

    2.b.

    • Thanks for posting that Alex.

      I think if anyone is trying to use that as a loophole to say that they must be forced to change their license first, then these clauses from the GPL pretty much squash that argument.

      4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

      5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

      6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the
      original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein.
      You are not responsible for enforcing compliance by third parties to this License.

      The GPL freedoms transcend all attempts to hijack them. That is the way it was designed, so that you can’t use GPL software and prohibit the freedoms that you received from the “parent” program. By basing a program off of a GPL’d program you are accepting the terms of the GPL and anyone who obtains the software is guaranteed the freedoms that it provides to your derivative work automatically.

      There could also be an argument that Thesis’ license to distribute derivative works based on WordPress is null and void due to non-compliance.

      I still think Thesis is a derivative work, and still would not hesitate to fork it and redistribute it in some way if I ever had the need. I have not yet seen a convincing argument that Thesis has found a loophole in the GPL that allows them to hijack the freedoms until they are wrestled back by a judge.

  15. Alex Young says:

    I think if anyone is trying to use that as a loophole to say that they must be forced to change their license first, then these clauses from the GPL pretty much squash that argument.

    I disagree. Here’s why:

    4…However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

    You did not receive Thesis under the GPL, so this is irrelevant.

    5…Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

    If we accept that WordPress is “the Program” and Thesis is a “work based on the Program,” then Thesis’ author has indicated their acceptance of the GPL as applied to WordPress by distributing Thesis. No argument there. However, there’s a world of difference between indicating acceptance of a license and carrying out its terms. He would appear to have done the former, but not the latter; nominally that puts him in breach of the WordPress license, but until that breach is resolved, Thesis’ license is unchanged.

    6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the
    original licensor to copy, distribute or modify the Program subject to these terms and conditions.

    Read that carefully. Make the substitutions above, and you end up with:

    Each time you redistribute WordPress (or Thesis), the recipient automatically receives a license from the original licensor to copy, distribute or modify WordPress subject to these terms and conditions.

    Given the definitions the GPL uses, its meaning is quite clear here, and I’d bet that this is one of the reasons that they changed the wording of the corresponding section for v3. Nothing here gives you an automatic license to Thesis under the GPL.

    The GPL freedoms transcend all attempts to hijack them.

    Unfortunately, they don’t transcend contract law. That’s all a copyright license is, after all. I’d argue that the situation you’re portraying – where you could distribute Thesis *as if* under the GPL – assumes a “contract implied in fact” when no such contract exists. The fact that Thesis being relicensed under the GPL is only one possible future outcome here lends weight to this.

    I still think Thesis is a derivative work,
    Agreed.
    and still would not hesitate to fork it and redistribute it in some way if I ever had the need.
    Unwise as yet.
    I have not yet seen a convincing argument that Thesis has found a loophole in the GPL that allows them to hijack the freedoms until they are wrestled back by a judge.
    I hope the above helps; I don’t know how I can make it clearer.

    • In the license “Program” is defined at the top like this…

      The “Program”, below, refers to any such program or work, and a “work based on the Program” means either the Program or any derivative work under copyright law[...]

      So I think it is possible to interpret it as…

      Each time you redistribute WordPress or an work based on WordPress (or any work based on WordPress or any work based on WordPress ), the recipient automatically receives a license from the original licensor to copy, distribute or modify WordPress or any work based on WordPress subject to these terms and conditions.

      So I am giving this one a big shrug.

      I truly believe that a judge would rule in line with the spirit of the license, since I believe that it is extremely clear what the intent is. I don’t think s/he would rule in favor of a contract violator due to such a minor semantic issue.

      As far as our difference of opinion, it all hinges on whether GPL automatically applies regardless of the license applied to derived software. If it eventually proves not to automatically apply, then GPL v2 definitely has a weakness, since the intention of a majority of authors who release under that license are under the impression that their hard work is protected from actions such as those taken by Thesis.

      Thanks for the healthy debate Alex! Although I haven’t changed my mind completely, I now have a better understanding of the other point of view.

  16. Hi Andy,

    Outside of Thesis I took a more in-depth look at what everyone thought was the Thesis issue: Does the GPL apply to themes and plugins? I don’t really agree with the FSLC here, but I’d like to keep discussing it: http://bit.ly/cygoRV

  17. Elin says:

    Here are some relevant items from the Free Software Foundations FAQ

    Who has the power to enforce the GPL?
    Since the GPL is a copyright license, the copyright holders of the software are the ones who have the power to enforce the GPL. If you see a violation of the GPL, you should inform the developers of the GPL-covered software involved. They either are the copyright holders, or are connected with the copyright holders.

    You as a non copyright holder have not had your rights violated, the copyright holders have. They shared software under a specific license and someone is violating the license–the dispute is between those two parties.

    What should I do if I discover a possible violation of the GPL?

    You should report it. First, check the facts as best you can. Then tell the publisher or copyright holder of the specific GPL-covered program. If that is the Free Software Foundation, write to . Otherwise, the program’s maintainer may be the copyright holder, or else could tell you how to contact the copyright holder, so report it to the maintainer.

    http://www.gnu.org/licenses/gpl-faq.html

    FAQs are not legal advice or enforceable but they are god explanations.

    • I think these make sense from a damages point of view, but I don’t think they apply to the freedoms issue.

      I have never said that I believe that any harm was done to me, or claimed to own anything. I do however believe that the GPL freedoms are extended to me when I receive a copy of software that is derived from GPL’d software.

    • “but they are god explanations.” (emphasis mine.)

      Freudian slip? :-)

      BTW, the FSF is a GPL advocacy group so their FAQ is their legal positioning a.k.a. what they want the legal interpretation to be, not necessarily what it would be.

  18. Alex Young says:

    …the recipient automatically receives a license from the original licensor to copy, distribute or modify WordPress or any work based on WordPress

    That’s the bit I specifically disagree with. It may be the intent of the GPL, but it’s not what it actually says.

    As far as our difference of opinion, it all hinges on whether GPL automatically applies regardless of the license applied to derived software.

    Yes. I don’t believe it can for a number of reasons, but it boils down to contract law in the end. Any non-consensual contract is void. If WordPress argue that Thesis must either become GPL or cease distribution, and the GPL is off the table, then the only option left is to cease distribution.

    If it eventually proves not to automatically apply, then GPL v2 definitely has a weakness, since the intention of a majority of authors who release under that license are under the impression that their hard work is protected from actions such as those taken by Thesis.

    It’s precisely the same weakness that any other contract has – that the other party might not honour their side of the bargain. Every contract risks that; in the end, every contract relies on the courts as a back-stop.

    Thanks for the healthy debate Alex! Although I haven’t changed my mind completely, I now have a better understanding of the other point of view.

    No worries. I’ve learnt a lot. I think we’re in violent agreement about 98% of what’s at stake here.

  19. Wow, some fiery comments here.

    May I suggest this as the best example of what a derivative is, as per the GPL.

    It seems silly to base the decision of whether something is a derivative on a particular programming language construct. We would then need to define it for every language, individually.

  20. techvslife says:

    Is the GPL valid? I don’t say that it’s not, but it seems to me that it could be struck down as:
    1. an unlawful restraint on trade or on alienation of property–i.e. the “viral” nature could be seen as a reaching out by the GPL licensor that prevents the recipients from exercising their own lawful property rights.
    2. a violation of copyright law: again by interfering or restraining the lawful copyright rights of the recipients.
    3. an unlawful fixing of price: by (in effect) forcing derivative works to sell at a certain price (i.e. zero). (this last point is the weakest.)
    I believe the issue has not been adequately tested yet (at least in American law) but as usual the narrow legal issue is not as interesting as the moral/political debate.

    • LemoineM says:

      The GPL is way less restrictive than proprietary licenses…

      1. At the very least, the GPL allows you to create and re-distribute derivative work. Whatever the restrictions are, the proprietary licenses don’t even provide an access to the source code.

      2. The law always prevails on licenses (e.g. “private use”), if any clause contradict the law (which I highly doubt), then it is null.

      3. Nothing in the GPL, force you to distribute the software without selling it. The only mention is when the software is covered by a patent, in which case the patent holder is required to allow a royalty-free distribution of the software.

      Finally, the GPL is written by FSF’s lawyers and since it’s already the third version of the license, I think that this kind of trivial loophole hove already been covered for a long time.

      • techvslife says:

        I don’t think this is trivial, even though the fsf lawyers express confidence. gpl hasn’t been out long in the life of judicial process, even if it’s been out long in internet terms. however, it may be there’s a good impartial piece on the status of gpl–I just haven’t come across it yet.

        1. That’s true but I would think GPL is more restrictive in the sense that it is trying to expand the reach of copyright and property law to bind subsequent authors to do something that may be against their wishes and needs, i.e. force them to release their own source code to the public for free if they make use of gpl code (I’m speaking loosely here, “make use” has a technical meaning: “derivative work” etc.). Yes, those secondary authors are getting access to the source code that they probably would not otherwise have lawful access to (unless the primary author freely released it, without the restrictions of gpl, or the copyright expired), but nonetheless the conditions tied to this “gift” are an an attempt to expand the power of the original copyright owner in a novel way–it’s in effect substituting the judgment of the original (i.e. gpl) copyright licensor about the damages for copyright violation (under contract law) for those provided in copyright law (the punishment becomes the adoption of gpl by the secondary author to those works of his based on the gpl code). That may be legal of course, but it is novel I think, at least on this scale. Money damages are usually preferred in the law, and that’s partly because they are less restrictive on freedom than specific performance, but as I understand it the gpl also looks to have the secondary author adopt the gpl on derivative works –this is in someways similar to the restraint on alienation of property cases (first sale etc.).
        I would think there also may be a question whether gpl attempts to expand the definition of derivative work beyond the limits of copyright law (e.g. in section 2). If so, of course the effect would probably be only a rewriting of the gpl license by the court to make it conform to copyright law, as often happens when a license holder claims broader rights than he actually possesses under the law. (ditto for the possible expansion of what constitutes “acceptance” of the gpl contract in section 5, and other provisions testing the boundaries of copyright law).

        2. Yes, I mean one question is whether the gpl license as written is valid in every respect. (For example, license found to be contrary to law will be amended or invalidated by the courts, e.g. the “first sale” doctrine struck down license provisions that purported to prohibit the transfer the sale of a book by a later owner.)

        3. good point. but note section 7 of gpl2 says “not limited to patent issues.” Also this seems fairly broad to me: “You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. ” (gpl2, section 2b).
        “Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein” (gpl2, section 6) You (the author of a work “based” on the gpl program) can’t impose ANY further restrictions by recipients of that work–doesn’t that mean to include restrictions based on copyright (not just patent)?

        (I’m no expert, so please don’t take this other than as mere opinion based on a quick glance at the gpl.)

        • LemoineM says:

          1. Well, it is not a poisonous gift: The GPL does not forcefully make you release your code under GPL. You are warned before using any GPL code that released derivative code must be released under GPL. If you don’t agree with the terms, just don’t release it (personnal use is not bound by licenses) or don’t use GPL code in the first place. As a copyright holder, if I require people that derive my work to do so only by typing with their feet, it is my legal right (it is stupid and will probably be disregarded by a court, however, I am still legally allowed to do so).

          3. Actually, you are required to make your code available free of charge, but nothing prevent you from selling it too with (say) additional support service or warranty. It may appears as a contradiction but it is not. For example, Section 17 of GPL3

          • techvslife says:

            1. It’s not usually a poisonous gift, obviously it’s a benefit to most of us, but still it’s not simply a gift (–not that anything in the world can be a gift). I agree with you that we use WordPress at the pleasure of the copyright owners, their licensing terms, and that’s perfectly appropriate, but I think we agree that there are limits to what they can demand. There’s some question as to the fairness or legality of especially the novel “viral” aspects of the GPL. An author cannot insert a term prohibiting the resale of his book by the purchaser or control its subsequent ownership (that would weaken the free market), and likewise there’s some question as to whether the GPL license can require that authors whose works are “based” upon or are “derivative” from GPL software must license those secondary works under GPL and effectively provide them for free (I mean not including support services). I think the courts would probably uphold it, but I think they might they might be more strict about what is derivative in such a case because of the intrusive, ambitious, or viral nature of the GPL license.

            3. yes, however some people may be better at or enjoy programming more than providing customer support (bleah). GPL could limit their ability to support themselves in the manner best suited to them, because, in such a case (pure developers) they would not be offering anything to customers beyond what they must (by GPL terms) offer for free and therefore may have more difficulty turning a profit.

        • Alex Young says:

          it’s in effect substituting the judgment of the original (i.e. gpl) copyright licensor about the damages for copyright violation (under contract law) for those provided in copyright law (the punishment becomes the adoption of gpl by the secondary author to those works of his based on the gpl code). That may be legal of course, but it is novel I think, at least on this scale. Money damages are usually preferred in the law, and that’s partly because they are less restrictive on freedom than specific performance, but as I understand it the gpl also looks to have the secondary author adopt the gpl on derivative works –this is in someways similar to the restraint on alienation of property cases (first sale etc.).

          The GPL says nothing about damages. What it says is that if you want to stay legal, you must abide by its conditions. If you then break the conditions, the FSF can step in, and their preferred remedy is the release of all derived code under the GPL. It’s perfectly possible for an original author and a deriver to come to an arrangement that doesn’t involve the release of the derived code.

          Think about it this way: if a company takes GPLed code from party A and code covered by a trade secret from party B and combines them, then they cannot reasonably be compelled to satisfy both agreements except by removing everything they’re providing from distribution.

          • techvslife says:

            I meant the effectual damages implied by the license. As I understand it, of course the private parties can agree to some other settlement, but that would be, so to speak, at the mercy or pleasure of the licensors, if they ALL agree (assuming the gpl was upheld and the offender was sued and found guilty of violating the license etc.). By law (if the GPL license is upheld), the offender can be sure to satisfy (legally) the GPL licensor only if he withdraws the offending work from distribution or applies the GPL terms to the offending work (i.e. making the source code of the offending program available at no charge at the same terms etc.). If he does that, then he probably would no longer be violating the GPL license, so there would be no need for a special settlement or negotiation (except to address damages for past violations).

            Your example is good in showing how harsh gpl can be in its effects under certain circumstances: ordinarily party A would be in some negotiation for payment or fees and there would likely be a release of the combined code (under a new proprietary license, though usually without release of the source code) with satisfactory compensation to A–but the novel “take no prisoners” approach of GPL requires an “all or nothing” result: either all the source code is released for free, or nothing can be distributed at all (unless of course the author of the original work agrees to soften or remove the GPL license, which may be difficult or impossible for multi-authored works or after other parties have substantially relied on the GPL license). It’s also another way GPL pushes or spreads itself, or stretches a long arm in the exercise of copyright powers.

            (The GPL also says that a court’s ruling requiring one to take actions that contradict the GPL license is “no excuse” from the terms of the license (gpl2, section 7). One can think of circumstances where this would be useful and it has a technical purpose (making it more difficult for an offender to avoid damages for his violation of the gpl license on assertions of legal necessity), but a court is supposed to take the GPL (and other relevant conflicting legal claims) into account in issuing a ruling on a dispute. So I’d guess that a lot of the time this section 7 clause would simply be invalidated by a court as against public policy but that seems to be recognized within section 7.)

          • techvslife says:

            Thinking it over some more, a correction: many of the same issues would be present with multi-authors (and third party reliance) in non-gpl license situations (I mean in getting agreeement etc.), so that’s not distinctive –but community projects are more likely to be gpl or gpl-like. However the gpl does have an approach that perpetuates and spreads the gpl, and it’s more likely to “run with the code” and be an obstacle to substantial license changes later. (Releasing source code also has an irreversible effect that is very different from paying money–i.e. once revealed, it’s hard to make secret again.)

  21. As already stated by SpaceMonkey, there has been a great debate on this with Joomla. The result is the same, themes are derivative works. But since quite a number of people does not honor the words of FSF, then maybe a suit is really on order. I mean, if a court precedence is what’s needed to settle this once and for all, then why the hell we can’t do it?

    I’ll chip in if this law suit comes into fruition.

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