Will the Free Software Foundation or any other group take DIY Themes to court for GPL licensing enforcement in 2010?
Yes 1/2
No 8/5

Will DIY Themes relent on its own and distribute the Thesis Theme/Frameword under a GPL license in 2010?
Yes 5/2
No 1/3

Will Chris Pearson personally sue Matt Mullenweg for lost revenues, slander or defamation in 2010?
Yes 3/2
No 4/7

There’s a few interesting issues about this bit:

1. Apparently there is some business to be made in contacting other bloggers to promote content, because this dude kept emailing me about this. That’s fine, because this is actually sort of interesting. Next time offer me a laptop or something, though, so I can be like the Microsoft bloggers.

2. Whoever wrote up the story summarizing the drama on the SBRForum did a damn good job. It’s hard to be sure – because anyone reading this probably has a technical background – but I think even a non-techie can follow the basics from the story.

3. People really will bet on anything, won’t they?

My Solution

If I were really vested in this issue and had money (and my last name was Mullenweg) this is what I would do: I’d just buy a copy of Thesis and then start distributing it. From the front page of WordPress. Hell, I’d make it the default theme, push it out as a “critical update”, and announce it all on video in a leotard with my face painted up like The Ultimate Warrior. (Don’t miss the “Warrior Fine Art Gallery”!)

For one thing, this has already moved past the “let’s handle this thing internally and like gentlemen.” After that stage, I’d move right to ”BRING IT!” Us zealots only see things in black and white, you know.

For another thing, despite the possible uncertainty of the “derivative works” issue, we know that Thesis contains straight up ripped-off GPL code. Those versions of Thesis are unquestionably violating WordPress copyright.

This is the problem about being a dick – you might be able to get away with it so long as all your ducks are in a row, but ducks have a hard time staying in a row. Call it Karma. And then call it to the stand.

Do it for the lulz, Matt!

Edited to add: Alas, it hardly matters now, as Thesis has done the right thing and now the PHP portions are under GPL, and the CSS/JS bits under the whatever proprietary terms that who cares about.

Most of the reading at this point walks well-trod ground, but  one bit of commentary by The Accidental Businessman (Marco Tabini) deserves special attention:

You could say that Matt’s opinion counts, because he wrote the software and he should have the right to decide how his software is distributed and under what rules.

I couldn’t agree more—except for one minor detail: Matt made his decision when he chose to distribute WordPress under the GPL. From then on, both he and any user of WordPress are bound by the terms of the license, and not by what anyone thinks. Matt doesn’t enforce the license: that’s for a court of law to do. Therefore, what he thinks at this point only has value, from a legal standpoint, if a competent court determines that the terms of the GPL agree with him.

This, incidentally, is one of the biggest concerns that I have with the GPL. It’s a license that enforces a very particular meaning of “freedom” whose nuances a developer may simply not understand. Case in point: Matt may well believe that themes must be released under the GPL as derivative works, but there is no real case law to back this belief. The FSF says so¹, but they are less than intellectually honest by not admitting that they do not have the legal standing to back their claims.

The reason why I say that this is not a legal issue, therefore, is that, unless and until the WPF sues a theme developer on the issue of whether a theme or plugin that doesn’t incorporate wholesale code from the main project² is a derivative work, this is a business issue that can deeply affect the future of WordPress if not handled correctly. Hence my points in the previous article.

One thing that many do not seem to understand that the enforcement of a contract (or a license) is, essentially, a failure of the contract itself. A contract exists so that two parties can have an understanding on how a business relationship should take place. If the contract is sufficiently clear and unequivocal, it should only ever be enforced if one of the parties maliciously and willfully breaches it and then refuses to cure the breach. If it is unclear and equivocal, as is the case here, the enforcement of a contract represents a failure to draft a proper agreement in the first place.

Let me say I disagree with the overall conclusion and opinion of the Mr. Tarbini as I understand it, but I do appreciate the points he raises.

GPL Motherfucker. Do You Understand It?

A thorny issue for me. Perhaps it is a failing on my part that despite reading the text (and rationale for GPLv3) I wouldn’t want to argue for high stakes in a court of law on the particulars of the GPL. Not only is the GPL complex, but copyright law is complex-squared.

Furthermore, it may just be my ego talking but I don’t put a lot of stock in GPL-interpretation by people who don’t do it for a living.

I’m not saying complexity or ambiguity is a GPL failure - perhaps the legal system itself makes it impossible to write something that is both understandable for a layperson and enforceable by a court.

I’m not being snarky.

GPL != Free Software

Another important distinction that doesn’t always get made: the GPL is not the be-all-end-all definition of Free Software. I look at the GPL as being the best attempt to enforce Free Software. I’m not aware of any license that does – or even attempts to do – a better job a promoting Free Software than the GPL.

Even so, consider the GPL is already on the third revision. For whatever reason earlier attempts fell short of the mark.

Therefore, I don’t think it’s out of line to realize that the GPL may fall short even if it may simultaneously be the best possible attempt – nor do I think such a problem invalidates either the GPL or Free Software.

Few things are without flaw or need of improvement.

Assume maliciousness and incompetence

There’s a famous bit about “never assume malice when incompetence explains”, but when dealing with GPL and Free Software, I think one must always assume malice and incompentence will be in play.

For example, business interests will always be looking for a way to get something for nothing (though never ever giving something for nothing! What are you – a COMMUNIST!) To them, exploiting Open Source seems like a free gold mine of research, development, software and support. Good business, maybe – but malicious.

Vast majority of “Open Core” falls in various degrees around this area. Rule of thumb: the louder and “Open Core” player trumpets “Open Source”, the further they are towards open-core-means-we-are-using-a-mit-licensed-tcp/ip-stack end of the spectrum.

Straight copying actual source code from WordPress into your theme that you insist isn’t a derivative work and isn’t under the GPL is malice too … in case you were wondering where to classify that.

Other area is incompetence. When Mr. Tabini asserts ”Matt made his decision when he chose to distribute WordPress under the GPL”, that’s incompetence. Matt never made a decision to distribute WordPress under the GPL – that decision was made for him, as he forked an existing GPL project.

Drafting an agreement

Having no choice ties into another problem with Mr. Tabini’s argument. Recall this bit:

If it is unclear and equivocal, as is the case here, the enforcement of a contract represents a failure to draft a proper agreement in the first place.

But! The parties  (in this case) aren’t entering into a meeting-of-the-minds and drafting an agreement.

One party has pre-selected terms that – hopefully - covers his software in a manner he finds acceptable, and with the expectation that people using his software will act in a compliant manner. To him, he sees the GPL as enabling something.

The other party, though, is doing something very different – because he views that same license as something to be subverted or ignorned.  To him, the GPL is disabling something.

If these two parties had sat down to draft an agreement, they would not agree on the GPL. That’s because one party wants to share code and the other doesn’t. The GPL isn’t a vehicle of agreement between those two parties.

A disagreement over a unique drafted agreement  isn’t what happens when people have a GPL issue – it is invaribly someone who wants to benefit from GPL software, while not being bound the same requirements that made it possible and available to them in the first place.

If there is any failing on the part of the GPL here, it is not in the eyes of the second party – that person doesn’t want to share his code anyway. If there is a failing it is that the GPL has failed to enforce the terms that the first party expected – which I think are in line with the expectations of Free Software.

Commenting on comments to the commentary

As usual I find much interest in the comments. Consider this bit (sorry couldn’t find a direct link, it’s the second comment):

The second biggest problem is the attitude that there is only one correct interpretation of the license and if you don’t agree with that interpretation you’re breaking the law.

Eh? Isn’t the entire problem – assuming everyone is not acting malicously – that there isn’t one correct interpretation?

If there were “one correct interpretation”, then exactly how would one go about justify acting in defiance of that interpretation?

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.