If WordPress were a country, our Bill of Rights would be the GPL because it protects our core freedoms.
- WordPress Blog
I’m a fan of WordPress: not only is it the best blogging platform I have ever used, but it is also a big proponent of the GPL.
WordPress is a great example of high-quality, useful FLOSS software – one that has a successful business build around it, in fact.
The Problem
WordPress has always taken the position that themes should be released under the GPL, and even consulted the SFLC. The end result? “PHP in WordPress themes must be GPL, artwork and CSS may be but are not required.”
But not everyone agrees.
A different lawyer’s view
I recently ran across a couple of interesting posts from Mike Wasylik over at Perpetual Beta arguing that the GPL should not apply to themes.
The first (and better, IMHO) is “Why the GPL does not apply to premium WordPress themes“. (The second, and lesser is “Why the GPL/Derivitive Works debate doesn’t matter for WordPress Themes“)
Here’s a shocker: I actually like Mr. Wasylik’s criticism, not because I fully agree with it – I don’t – but because the author lays out a reasoned case. I do not exaggerate when I say this is the first rational criticism of anything related to the GPL I can recall seeing.
Compared to the normal “GPL==communism” trash that passes as discussion in many circles, Mr. Wasylik’s writings are damn near scripture.
Criticism is important
I greatly appreciate rational and thoughtful criticism of the GPL, because I do not think the GPL is some perfect guarantee of Software Freedom. It’s clear that GPLv2 didn’t quite get the job done, as Novell and Microsoft gleefully demonstrated, and there’s no reason to assume that GPLv3 is perfect and will never need to be revised.
The focus – as ever – should be on ensuring Free Software. The GPL is a tool - perhaps the best one possible in our legal environment - but only a tool, and should not be confused with the end goal of Freedom!
The first article
Amid the legal jargon and such, I see the basic question as this: can a (GPL) platform dictate the (GPL) license of programs running on top of that platform?
Here is the justification of support given:
The template is loaded via the include() function. Its contents are combined with the WordPress code in memory to be processed by PHP along with (and completely indistinguishable from) the rest of WordPress. The PHP code consists largely of calls to WordPress functions and sparse, minimal logic to control which WordPress functions are accessed and how many times they will be called. They are derivative of WordPress because every part of them is determined by the content of the WordPress functions they call. As works of authorship, they are designed only to be combined with WordPress into a larger work.
But I disagree with this in general and in specifics.
First, I do not think that a (non-GPL) platform can dictate a (non-GPL) license of programs running on top of that platform. I do not think that Microsoft could say that GPL programs can not be developed on top of Windows! So, the inverse here - while not exactly the same -is close enough to give me pause.
Second, it is true that in PHP, include() basically joins the portions of code together just as if they were written that way originally. But that’s an artifact of the language. The point of the include() is not to modify WordPress, it’s just to “call” the template, just like an API call or fork() or whatever.
Third, I simply don’t see templates as modifying WordPress anymore than CSS does. I suppose the template system could permit such interaction that the argument could be made – its not unreasonable – but conceptually I don’t see it.
To a large degree, Mr. Wasylik provides logical and legal support for his argument here – and I think he makes a very interesting case.
The second article
Compared to the first article, this is a disappointment, though still far superior to any other GPL criticism I am familiar with.
Unfortunately, I think Mr. Wasylik badly stumbles trying to apply “Fair Use” as a defense here. I think the argument that templates are not derivative works is much stronger.
This is already a very long post, so I will only focus on one point of this article, the “real clincher”:
Effect on the potential market
The fourth factor, though, is the real clincher that leads me to believe the distribution of premium WordPress themes is fair use of any protected WordPress works. The “market effect” test has been deemed by our Supreme Court to be “undoubtedly the single most important element of fair use.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556-57, 105 S.Ct. 2218, 2233-34 (1985). The “market effect” test determines whether the alleged copyright infringement would somehow depress or diminish the ability of the author of the protected work to market that protected work.
In this case, the answer is a head-slapping “Of course not!” It is axiomatic that a WordPress theme cannot function unless there is a copy of WordPress running to support it; in fact, this is one of the arguments that GPL proponents make to support their case that the themes are derivative works. The “copying” by theme distributors can never displace a single copy of WordPress, so there is no negative effect on any potential market; and in fact, by enhancing the aesthetic and functional value of WordPress, themes promote more widespread use of the underlying software. Developers of WordPress themes increase the market for WordPress, not depress it. Increasing WordPress market share is in the theme developers’ best interest, for more WordPress users means more potential customers for premium themes.
Because the impact of premium themes on WordPress market share is at worst neutral, and in all likelihood premium themes substantially bolster the market share of WordPress with respect to its competitors, the fourth factor weighs heavily in favor of a finding of fair use. As the “most important element” of fair use, this finding cannot be understated.
We can almost instantly reject this analysis. Why? Because if one did accept it, then any similar software written for Windows – theme managers, alternative window managers, screensavers, and so on – would have Fair Use coverage and could ignore Windows’ copyright! I don’t see that argument gaining much traction. I was quite surprised and disappointed to see it offered up.
Summary
I’m always interested in (good) criticism of the GPL and Free Software, because I believe we are still struggling to understand, achieve and apply these concepts.
Perpetual Beta at least makes a reasonable case – in the cesspool of dreck I normally have to wade through reading criticisms about the GPL – I am appreciative of that effort.
#1 by twitter on March 3, 2010 - 11:35 pm
I’m afraid these arguments, while not trash, are the usual old drek. People who fiddle around with these details to make trouble are usually not friends of software freedom.
No one supports the first argument, that a GPL platform forces people to write GPL software. A non free program may call free software and be run on top of free software. This does not work very well for anyone but few would argue it is not allowed.
The second argument reduces to “if it helps sales, it must be fair and non freedom is good for sales.” The long success of free software projects and relative short life time of non free software shows that people actually prefer freedom and that stripping freedom from a platform is harmful. Even the US court system will eventually see this.
These arguments winds sideways like a snake and have more to do with the foibles of the insane US court system than anything else. Software freedom is a matter of moral principle not money making or force. The idea of the GPL is to make sure that distributors pass on all of the freedom of the code the received. People who snipe at the edges of that freedom do a disservice to everyone and their distributions are user hostile, upgrade brittle and short lived.
#2 by Jason on March 4, 2010 - 11:16 am
twitter,
Thank you for your comments!
I think you actually hit on the part I like the most when you say that the arguments have more to do with the foibles of the court system.
What I mean is that there will always be some people (like Novell and Microsoft) that use that court system to circumvent or nullify the moral principles the GPL is striving to achieve.
That’s why I appreciate Mr. Wasylik’s points – if he can point out problems in the GPL from a legal perspective, it will enable the FSF to construct revisions that are more effective.
Now, I don’t agree with his arguments – but at least I think they are rational and honest and worth consideration.
#3 by saulgoode on March 4, 2010 - 4:07 pm
The exclusive monopoly afforded by copyright is intended to permit the creator of a copyrighted work to benefit from the creative effort he expended in creating the copyrighted work. It is not to be used to protect the marketing of other things — such as PMPs, DVD players, ebook readers, computers, or game systems.
In citing the Galoob v Nintendo case, Mr Wasylik fails to consider this limitation of copyright — the joystick device did not threaten Nintendo’s marketability of their software — only the marketability of their hardware (which is not protected by copyright law). Employing copyright law to protect the marketing of things other than the copyrighted work itself is an abuse of the law and the courts need to firmly condemn all such attempts (unfortunately, this doesn’t always happen).
As to whether a driver, plug-in, module, theme, or template should be considered a derived work, I think a more convincing precedent would the case of textbook answer guides being considered derivations of the original textbook — with the reasoning similarly applicable to the relationship between such add-ons and the original software.
http://www.exclusiverights.net/2009/10/court-finds-that-answers-to-textbook-questions-are-an-infringing-derivative-work/
#4 by Jason on March 5, 2010 - 12:09 pm
Saul,
Thanks for that – very good points indeed!
That’s the exact sort of legal cite-based back and forth that I think actually possess some real value in analyzing the GPL!
#5 by Mike Wasylik on March 17, 2010 - 11:04 am
Jason,
Thanks for the reasoned response. I’ll respond in turn to the most serious criticism you make.
” Because if one did accept it, then any similar software written for Windows – theme managers, alternative window managers, screensavers, and so on – would have Fair Use coverage and could ignore Windows’ copyright! ”
That’s only true if you apply the fourth prong in isolation – something that the courts have consistently rejected.
Fair use is always a case-by-case analysis, in which no one prong of the test is determinative by itself, and in which even the four identified prongs are not determinative. So I don’t agree with your premise that my fair-use argument would wreak havoc on the Windows copyright unless the other three factors were in play as well. Ultimately, it’s a jury question.
As for the Pearson case that Saul cites, it’s worth reading the entire “derivative work” analysis – because it is almost entirely limited on its facts to books that provide answers to questions posed in other books. Both the Pearson case and just about every case it relies upon are based upon that narrow fact pattern, and its value it limited beyond that narrow scope. I would add, as well, that the Pearson case and most of the other cases it relies upon are opinions of the district courts located in New York, rather than any appellate court – and so reflect only a very narrow cross-section of the judiciary.
I will say, however, that Saul’s argument is many times more persuasive than all the “because I said so” garbage and ad hominem attack that passes for intellectual discourse in the blogosphere.
#6 by Jason on March 17, 2010 - 12:36 pm
Mike,
Thanks for taking the time to comment!
I have to confess I’ve been thinking on this quite a bit and find myself leaning ever more strongly in agreement as far as the “not derivative works” argument goes.
I’m having a much harder time seeing the “fair use” argument. Without breaking out each prong, let me say that I don’t see how your arguments for any prong apply to WordPress / GPL Software and NOT apply equally to Windows / Non-GPL software. Therefore, it seems that if the GPL loses copyright protection to Fair Use (by the weight of your overall argument), so would all software.
Perhaps if you could clarify that aspect?
#7 by Mike Wasylik on July 15, 2010 - 9:35 am
Jason,
Sorry for the delayed response. The short answer is that Fair Use is a very fact-intensive analysis, and that it would not apply the same way in every case. Every piece of software you mention would require its own separate analysis, and some might, some might not, fall within fair use. You’ll note that my fair use analysis of WP themes contains some very specific factual caveats. The same would be true of any analysis Windows-based code.
#8 by saulgoode on July 18, 2010 - 6:16 am
Employing the Fair Use defense with regard to GPLed software actually presents a rather dubious proposition, especially so if the infringing use consists of distributing proprietary derivatives (as opposed to attempts to release under more permissive terms).
My premise for this is not so much the actually wording of Title 17 §107, but with the reasons underlying its existence. Fair Use serves as a sort of “sanity check” or “escape clause” for situations where the reach of copyright law would otherwise overextend itself and thus become susceptible to recriminations of being unconstitutional.
Congressional authority to extend the exclusive monopoly of copyright protection stems from the following clauses in Section 8 of the U.S. Constitution:
This places a significant condition upon Congress’s authority to enact the copyright law — if the law doesn’t promote Progress(…) then the law is unconstitutional (see also the last clause of Section 8, where the law is mandated to be “necessary and proper”).
Without the Fair Use doctrine, a schoolteacher might be sued for infringement for playing Leonard Cohen music in the classroom while studying modern composers; but then that teacher could appeal on the grounds that the enforcement of the law is impeding the Progress(…) and that the law is thus unconstitutional. Every such case would eventually end up before the Supreme Court (though lower courts can rule laws unconstitutional, the government can, and likely would, appeal any such ruling).
Fair Use serves as a mechanism for lower courts (or even copyright holders) to short-circuit these situations where application of copyright law would otherwise cause the law to be deemed unconstitutional. If the otherwise infringing use of a copyrighted work is considered to be in the best interests of promoting Progress(…) then Fair Use affirms that usage as non-infringing.
Now unless I am completely off-base in the above assessment, how can anyone ever hope to claim a Fair Use defense — i.e., that they are providing a benefit to the promotion of Progress(…) — when they go against the licensing of the copyright holder in order NOT to share with society the creative and intellectual expressions in their infringing derivative work?
While I present this mainly as “food for thought” and I am not aware of any particular court cases addressing this with any relevancy, I would submit the ruling in Daniel Wallace’s antitrust lawsuit against the GPL as one example of how courts might perceive a “proprietary Fair Use” of GPLed software and “the effect of the use upon the potential market for or value of the copyrighted work”).
For the opinion of Wallace v. FSF
#9 by Linda on August 27, 2011 - 1:06 am
“Third, I simply don’t see templates as modifying WordPress anymore than CSS does. I suppose the template system could permit such interaction that the argument could be made – its not unreasonable – but conceptually I don’t see it.”
I think you nailed it with this one. I don’t see the difference either. To what extent should modifying themes and CSS codes be limited on WP?