it is what it is

Even though graphics and CSS aren’t required to be GPL legally, the lack thereof is pretty limiting. Can you imagine WordPress without any CSS or javascript? So as before, we will only promote and host things on WordPress.org that are 100% GPL or compatible. .

Wow. Disingenuous, much? Your internet lawyers just admitted that the only elements of a theme covered by GPL are the PHP files, but you’re going to go ahead and insist on everything else being GPL anyway.

(What happens, by the way, if I give all the WP functions their own files within the theme, separating them from the html and calling them with a common-or-garden php include? Would index.php catch GPL merely by virtue of calling files that calls WP functions? OK, so nobody in their right mind is going to attempt this, but still.)

Actually this is pretty reassuring for anyone still clinging on to CC — they can protect their CSS and images if they choose to do so, freeing them to use third-party CC content such as icons, photos, brushes or backgrounds. HTML generally isn’t special enough to be worth protecting anyway. They can’t submit the resulting themes to wordpress.org — Automattic don’t have the resources to moderate them — but nobody really suffers from that apart from users who are too lazy to look beyond its heavily limited selection; it’s not like there’s a shortage of alternative directories.

Meanwhile, I feel vaguely sorry for the saps who bought multi-use licences for hundreds of dollars from the various premium theme developers, only to discover within months (or weeks, or even days) that those who only bought a single-use package are now getting exactly the same deal, and that anyone who downloaded a pirate copy for nothing has officially done nothing wrong. But they don’t seem to be complaining too much (or maybe their comments are being censored, or maybe they’re too ashamed to admit to their stupidity in public, who knows?)

I can see that the developers were pushed into a corner here; you can’t risk being ostracised by the company who own your platform, because without official backing people won’t trust you enough to do business with you. It was OK while everyone was in the wilderness together, but as soon as one sucked it up and toed the GPL line they all had to, or he was going to get the monopoly. If you make iPhone apps you’re at the mercy of Apple, if you build a business around wordpress themes you’re at the mercy of Automattic. It’s just the price you have to pay. I still don’t believe that the GPL was conceived with the intention of being used to protect the interests of big corporations and manipulate the little guys, but it is what it is.

16 Comments »

  1. I wouldn’t call Automattic a big corporation – they’re tiny, really. A small player in a world that’s full of some seriously big businesses.

    But anyway – here we go… we decided, with Spectacu.la to go the GPL route quite a while ago, and now I suppose we get our ‘rewards.’ It’s good for traffic, good for profile.

    We were too late to the market to do anything else – two days after our first truly free GPL theme hit the repository we were out. We couldn’t fight it, we were in the wilderness. But back then I felt for those who’d paid a lot to the likes of Brian Gardner and similar who had gone GPL. For us it was less of an issue – we didn’t have expensive deals in place and those that had joined were all on the lowest membership levels. Feedback suggested they didn’t mind a change to GPL, so we did it.

    Now we’ll see whether it’s a valid business model or not. I’m not 100% convinced, but so far as selling themes is concerned it was the only one available to someone without a great of cash to throw at it all.

    • Yeah, normally I’d say ‘multimillion dollar’ rather than ‘big’. It’s more accurate but it takes longer to type :p

      Most people who buy premium themes are paying for the support rather than the product itself, and don’t fully understand the implications of GPL beyond ‘kewl, I get more stuffs now!!!’, so licence changes don’t make a massive amount of difference to them. It’s a little dodgy to keep selling multi-use licences if you know you’re going to be offering exactly the same package to your lower-tier customers in the near future, but if the customers don’t care about getting screwed over I’m not going to get outraged on their behalf [shrugs].

  2. [...] In a recent news from the development team of WordPress, they said ‘Themes are GPL too‘. I do not agree with all of that post’s content, as I am still thinking WordPress is similar to clay and a theme is similar to a statue you build using the clay. but, before I write a detailed post on this, I will just point you to this post below. I still don’t believe that the GPL was conceived with the intention of being used to protect the i… [...]

  3. it’s not like there’s a shortage of alternative directories.

    Right. This legal interpretation was completely in line with what I’d interpreted: PHP yes, CSS/images, not necessarily. Even so, I’m fine with the GPL-only limitation of the wp.org-hosted themes because it makes it really easy: anything you can download from wordpress.org is GPL, and you can use it for any purpose. Having software on wordpress.org that had other restrictions would seem very strange to me.

    There are other directories available, and now they can offer (free or for sale) GPL(PHP)+Other(CSS/images) themes without any guilt and with a solid defense against anyone who suggests they’re violating the GPL.

    One potential way of selling themes like this would be to create a base theme with a base CSS/image set, give that away free, and then sell CSS/image packs ($) to jazz it up. Or even do custom CSS/image packs ($$$). With WP’s support of CSS-only child themes, you don’t even need to do any kung-fu to make your base theme support it.

  4. KB said

    Mark said exactly what I was thinking. One course of action for theme designers now would be to allow the base theme files to be downloaded (strictly PHP) and then people would then need to purchase ‘skins’ if they want a new look.

    Frankly though, there’s still far too much room for abuse.

    What rubs me the wrong way is the title of the post which is very misleading. There are going to be some people (I’m thinking of another term, but am trying to be polite) out there who see that “Themes are GPL, too” and immediately think that means *ALL* aspects of a theme are covered by GPL when it’s clearly not the case.

    From experience, most designers don’t care when people use the base theme files (i.e. index.php, etc.), only being acknowledged for the graphics and CSS that can take a tremendous amount of time. (I know in some cases, I used hand-drawn artwork which took hours to draw, and then more hours to digitize and color). Apparently Matt, et al, still don’t quite get that, otherwise the title would have been a bit more clear. *sad, just plain sad*

    It hardly makes sense to invest time designing themes that people are just going to use and abuse with no love (now that they think they legally don’t need to give credit, even if the graphics/CSS are not under GPL).

    Of course, there will always been an ever-flowing source of naive designer fanboys willing to invest time for a little bit of WP love.

    • It hardly makes sense to invest time designing themes that people are just going to use and abuse with no love (now that they think they legally don’t need to give credit, even if the graphics/CSS are not under GPL)

      In my experience, the kind of people who like to rip other people’s graphics and code and claim them as their own will do so regardless of any terms or conditions imposed by the original creator. It’s generous of Matt to provide them with a link to justify their behaviour, but people who don’t care about ethics usually don’t have any genuine regard for legality either. Similarly, decent people will continue to give credit where due without having to be ordered to do so.

      The title is of course deliberately misleading. It obviously pissed Matt off that his internet lawyers refused to award GPL-ness to graphics and CSS, and that’s why he ignores this fact in his post title and (lamely) tries to gloss over it in the paragraph I quoted. I wouldn’t be at all surprised if previous internet lawyers had denied compulsory GPL-ness to the PHP files. I don’t think he’d have published this judgement if there was a hope of getting someone semi-credible to agree with him on CSS and images, and how would he know that without going internet-lawyer-shopping?

  5. [...] it possible to turn this new development into a business model? Of course. There’s even a discussion over at WordPress Wank. Theme developers can simply release their underlying theme code for free and using the GPL [...]

  6. [...] has been considerable debate (and more debate) recently about whether or not WordPress themes are or should be GPL-licensed. The official word [...]

  7. I find the whole debate marginally laughable. This is all based upon the argument made by a lawyer. Lawyers do not, by definition, render judgment and make law. A lawyer’s duty it to the client – to argue for their client’s position and agenda within the confines or judicial precedence.

    The GPL has no judicial precedence in regards to what Matt is purporting, so while the lawyer is no doubt incredibly smart, and would certain take someone’s money to argue before a judge the position he rendered to Matt, it has no established legal precedence. Not until some challenges it and a *judge* renders an opinion and affirms the law one way or another will be know if Matt assertion can or will be enforced.

    I am not a lawyer obviously, so I don’t carry with me the authority of one, not to mention an entire Law Center, but I can say that were this opinion to be upheld by a court of law, the ripple effects and the legal precedent would be extraordinary. In fact, this decision (if it existed) could be used to argue as well that anything written in gnu-cc is also GPL because it makes “function calls” to a GPL core and can be executed in shared memory.

    But I won’t carry that argument any further for the fact I mentioned before: I am not a lawyer.

    The most important face here however is that the GPL cannot be used as a basis for forcing the GPL onto someone else’s code. The *only* thing it can do within the law and definition of the GPL is to give someone the choice: a) cease and desist in the distribution of a derived work, or b) bring your code in compliance with the GPL. It cannot, EVER, be used to say, “hah! Fooled you, your code is now GPL – pppppppphhhhhhhttttp.”

    • Not until some challenges it and a *judge* renders an opinion and affirms the law one way or another will be know if Matt’s assertion can or will be enforced.

      Yes: Matt is trying to shut the debate down by publishing the ‘final word’ but all it really is is yet another opinion, so it’s had the exact opposite effect.

      If you’re a WP theme developer, licencing choices are more or less academic anyway because you’re dealing with a development community and userbase that historically thinks it’s entitled to get everything for nothing ;). If you have to hire a lawyer to stop your CC-licenced work from being ripped off and argue your right to release it under whatever damn licence you choose, that’s going to eat into your profit margins. Ultimately it makes more financial sense to write off the piracy and substitute another meaningless label on your product in exchange for linkage from wordpress.org.

      One of the reasons Automattic are so anti-Creative Commons is that they want carte blanche to lift community themes and plugins and profit from them without paying a penny to the original creators. Everyone tends to assume that CC licences are aimed at making a profit for the creator, but they’re not terribly useful in that respect. They are more useful, in theory, for preventing others making a financial profit from your work when you have personally chosen not to do so; when it’s the ‘free as in beer’ aspect you want to be viral. (I say ‘in theory’ because nobody has any rights on the internet unless they’re willing to pay for them.) But, yeah. Ideally, I want Automattic to concede my right to say ‘my product is free as in beer, and if you want to redistribute it you should keep it so, and if you want to use it commercially you’re going to have to pay for it.’ You know, like they do with Akismet. I have no idea why they try to make out that this is OK for them and evil for everyone else.

      (Well, I do; they don’t want to pay for stuff if they can avoid it, and if Michel Valdrighi had taken the same line then Matt would not be quite as wealthy as he is now…)

  8. A couple more points to make:

    1) quoted from Dynamic Linking the GPL, which provides an excellent point of view:

    If you mean that a distribution is shipping KDE and Qt such that they get dynamically linked at runtime, then we get into a grey area. Stallman says that dynamic linking isn’t any different than static linking for the purpose of the GPL. That may be true, but an important issue is who does the linking. The link (static or dynamic) produces a derived work. But if the dynamic linking is done by the end user, he or she has the right to produce the derived work, even containing non-GPL’d code, provided that he or she does not distribute the derived work.

    Stallman may not like this interpretation, but I think you’d be hard-pressed to find anyone who believes that the dynamic linking was done by the producer of the distribution.

    In other words, I can buy proprietary code from person A, install it into GPL software made by person B, and run it. The GPL governs *distribution*, not usage.

    2) As far courts are concerns, what will matter more perhaps is not the legal precedence (there is none), but the precedence in the market. And in the market, it has become generally accepted practices *in every open source project* to accept and not litigate against people making plugins. The linux kernel has TONS of proprietary drivers deems a good thing by the market and Linus himself, same thing for Apache, etc. In other words, enough other more established and ubiquitous projects have by their inaction, given their blessing.

    Source

  9. Some designers are beginning to change over.

    I for one would love to see how the original request for review was worded.

    I do have a question though and I’m honestly asking here. It’s my vague understanding that GPL requires that no additional licensing or requirements be made on an item being licensed as GPL. Wouldn’t the extra requirement of the additional included works being registered as GPL’ed be a violation of the GPL license as it surpasses what’s required?

  10. [...] clay and a theme is similar to a statue you build using the clay. Go here to see the original:  it is what it is « wordpress™ wank Bookmark [...]

  11. drmike said

    I wonder how many theme designers have noticed the irony of how Automattic got caught using non GPL material and they don’t think it’s important:

    http://core.trac.wordpress.org/ticket/15769

    • I heart the Hello Dolly wank. It has that slapping yourself on the forehead for not having seen it years ago quality. The only reason I haven’t blogged it is that I was a little late finding out about it (bah, holidays) but it’s been long enough neglected that it might be nearly fresh again.

      • drmike said

        About time you showed back up. Some of us were worried.

        I actually didn’t even know it was still in the download. We stripped it out of our local SVN/Trac ages ago.

        Oh, and as of this morning, per the US Trademark office, the wp trademark is still held by Automattic. Someone please tell Mark Jaquith to stop writing that it;s held by the Foundation. (He mentions it at least once in that Trac thread.)

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