it is what it is
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.

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