By now you have heard about the controversy surrounding WordPress and Thesis, the premium WordPress theme. Matt Mullenweg has previously expressed his disapproval of premium themes and plugins that are used with WordPress. His defense is that WordPress is licensed using the GPL, and anything that runs with it should be as well. Things have progressed to the point that Mullenweg may take the makers of the Thesis theme to court.

Some employees of Automattic have also made comments regarding this. Andy Peatling brings up an interesting point:

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.

Many people are probably wondering why the rest of the world needs to care about a premium WordPress theme. Technically, you don’t. However, there is a ton of software licensed using GPL. TheNextWeb summarizes this nicely:

Mullenweg disagrees with Pearson’s use of a license other than GPL for his Thesis theme… We care not only because WordPress powers over 3 million self-hosted blogs, but also because GPL covers so much of the software that we use on a daily basis:

• Mozilla Firefox
• MySQL
• Numerous Linux distros
• Java

So, if the GPL is defended in court against a premium theme, there could be significant issues. Much of the technology industry is based on other technology that is GPL-licensed. There could be commercial fallout everywhere. This would be huge. So, what are the chances that this could happen? Well, let’s look at the GPL V2 license itself, section by section.

Section 0

This section starts with what the license applies to (which I am going to skip), and basically states that the copyright holder may say the “program” is being distributed with this license. However, there is one little note at the end of the section:

Activities other than copying, distribution and modification are not covered by this License; they are outside its scope.

Argument for GPL: Because the theme or plugin effectively modifies the program while it runs, this section still applies.

Argument against GPL: Because the theme or plugin is not distributed with WordPress, does not contain a copy of it and does not modify the source, the license should not apply.

Section 1

Here we see language regarding copying and distribution, as well as a reference to fees being charged. This section is best seen in its entirety:

You may copy and distribute verbatim copies of the Program’s source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program.

You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee.

Argument for GPL: Because the plugin or theme is being distributed with a license that is different than GPL v2, they are violating the original license.

Argument against GPL: Because there is not copying or distribution of the program or its’ source code, this section also does not apply.

Section 2

This is when things start getting interesting.

You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:

a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.

b) 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.

(skipping…)
If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.

Argument for GPL: Because the plugin or theme is derived from WordPress, the plugin or theme cannot be considered an independent or separate work and are violating the license.

Argument against GPL: Because there is no modification of the program or any portion of it, this section does not apply. The plugin or theme should be considered separate works because they are not part of the program, they build on top of the program.

Section 3

This section is a very gray area for this argument as it talks mostly about copying and distribution, but it is vague enough to cause confusion:

You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

(skipping…)

c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

Argument for GPL: Because the plugin or theme is derived from WordPress, and obviously is based on it, the plugin or theme must be distributed with the GPL V2 license.

Argument against GPL: Because the plugin or theme is not a copy or modification of the program, and it is not “a work based on it”, this section does not apply. The plugin or theme should be able to be distributed with whatever license it so chooses.

Section 4

“You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License…” This section becomes highly dependent upon how previous sections were interpreted.

Argument for GPL: Because the plugin or theme is derived from WordPress, and not being distributed with the original license, they are violating the license.

Argument against GPL: Because the plugin or theme is not a copy or modification of the program, it is not an attempt to sublicense the program or an attempt to distribute the program. The plugin or theme should be able to be distributed with whatever license it so chooses.

Section 5

This section will likely be key in the determination of whether premium themes and plugins violate the GPL V2 license. Here is the language in its entirety:

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.

Argument for GPL: Because the plugin or theme is derived from WordPress, and not being distributed with the original license, they are violating the license. By creating a derivative work, the plugin or theme developer has indicated their acceptance of the license and are blatantly violating the license by distributing their derivative work with a different license.

Argument against GPL: Because the plugin or theme is not a copy, modification or derivative work of the program, there is no violation of the license.

Section 6

Here, we have a short paragraph regarding distribution and the transfer of the license.

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.

Argument for GPL: Because the plugin or theme is derived from WordPress, the GPL V2 license must transfer to the new licensee. Changing the licensing will impose further restrictions, which is a violation of this section.

Argument against GPL: Because the plugin or theme is not a copy, modification or derivative work of the program, the original license of the program is not automatically granted to the new licensee. Again, this section does not apply.

Section 7

This section does not apply at all to this particular situation as it is completely based upon the opening sentence:

If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License.

Argument for GPL: As far as we know, the licensee has not had any court judgments or allegations of patent infringement held against them. This section does not apply.

Argument against GPL: Here we have the same argument as those in support of the GPL. At least they can agree on one thing.

Section 8

Now we get to export restrictions with “If the distribution and/or use of the Program is restricted in certain countries…” Thankfully we have no issues here either.

Argument for GPL: This section does not apply.

Argument against GPL: This section does not apply.

Section 9

This section only talks about the version number for the license, and that if the program does not specify a particular version, the licensee may choose to use the most recent version. Because WordPress explicitly defines their license as GPL V2, there are no issues here.

Argument for GPL: This section does not apply.

Argument against GPL: This section does not apply.

Section 10

This section is very interesting as it talks about explicit permission:

If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission. For software which is copyrighted by the Free Software Foundation, write to the Free Software Foundation; we sometimes make exceptions for this. Our decision will be guided by the two goals of preserving the free status of all derivatives of our free software and of promoting the sharing and reuse of software generally.

Argument for GPL: Because no formal request for permission to change the license was made, the theme or plugin has not been granted to change the license, and therefore has violated the license by distributing it with a different license.

Argument against GPL: Because the theme or plugin is not a copy, modification or derivative work, no permission is required to distribute the theme or plugin with a different license. There is no violation of the original license here.

The last two sections are regarding Warranty, which we do not care about in this case. However, if you review the sections presented above, WordPress has a very difficult case in trying to prove that Thesis has violated the GPL V2 license. Assuming that Thesis is just like most other plugins, they do not modify the original source code, they only modify the presentation of some aspects of the results of the program. However, the code presented by Andy Peatling presents an interesting question. If you write a plugin that extends a class of the core WordPress code, does that constitute a derivative work? There are two questions in this scenario. If this extension overrides behavior that is expected to come from the core WordPress code, then it could be considered a modification to the program because a particular method call will work differently with this new code. If the extension provides supplemental functionality and the original methods of the core WordPress code are still called, then it would be hard to argue that the plugin or theme violates the license. What if Thesis is overriding specific methods? It is possible that they will have violated the license while other premium plugins and themes have not.

In any case, this will be an interesting discussion to watch. One last note on this, I am not a lawyer, and more importantly, I am not a judge. I just have an opinion based on the license. Lawyer’s will also have an opinion based on the license, but that is still just arguing. Nobody is right until a judge gives his opinion in court, and then we can all bitch about the result.

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