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?

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…)

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

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.”

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?

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].

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.