Editors note: I’m in no way affiliated with WordPress, Automattic, or thesis. I’m just a standard, run-of-the-mill developer who loves WordPress and uses it on all of his client’s sites. This is my logical and conclusive opinion based on facts and evidence I have collected.
So, if you’re in any way connected to WordPress (or Thesis, since from what I heard today Thesis can stand on its own without WordPress) Matt Mullenweg (founder/creator of WordPress and Chris Pearson (founder/creator of the Thesis theme) have been hashing it out on live audio chat with Mixergy to talk about the great debate. Cosmetically, Matt kept the debate civil and focused on the community while Chris went on, and on, and on about his work, his importance, his contributions, etc. But, a few key things were brought up worth mentioning.
But first, an introduction to the argument.
Thesis is built to run upon the WordPress platform – however, the main issue that Matt and the folks over at Automattic take with it is that it’s not issues on a GPL license, which states that any themes, plugins, etc can be “forked” or redistributed and changed (as long as the original authors get credit). Chris doesn’t want that to happen. And hence, we have an argument. As for what the GPL is, I turn to TGATR:
What Is The GPL?
The GPL, or the GNU General Public Licence is the licence that WordPress is under. The licence is simple, you’re free to do what ever you want with it, make money with it, go nuts. However derivative works need to be under GPL.
That being said, here are my thoughts on the debate today:
1) Chris has some entitlement issues.
Chris Pearson founded Thesis a few years ago and bucked the GPL license. I listened to most of the interview and while Matt was defending the community and the platform Chris was constantly debating his revenue stream. All I heard for most of the argument was what “I did”, who “I am”, etc. And, in a bold statement, he claims to be one of the top three WordPress personalities. I wholeheartedly disagree. He has around 27k users – WordPress has 20m – that’s a stark minority.
2) Chris clearly has some contradictions in his argument.
Chris made mention of a few things I found strange. He tells people that “Thesis stands alone” but that he “pushes people to WordPress”. Here’s the thing about Thesis – it doesn’t stand alone – it needs WordPress to be able to function. He also mentioned that it’s “not about the money”, right before he mentioned that his profits would take a hit if we went to GPL.
3) Matt’s not afraid to get his hands “legally” dirty
This is by far the biggest part of the whole discussion – when asked if a legal lawsuit is the only way to really settle this, both parties conceded that it was. Matt doesn’t want to, and I’m sure Chris doesn’t want Matt to, but if that’s what it takes then I think that’s what it will come down to.
So… now that the dust has settled from the debate… what do you think?
UPDATE: here’s the video from the interview:
Watch live video from mixergy on Justin.tv
UPDATE 2: A good look at just what has been “copied” from WordPress is available here: http://wp.me/pg2iw-1R
I think Chris was a huge douche. WTH does he mean Thesis “stands alone”? Thesis can’t work without WordPress. While I won’t go in details on how terrible of a “framework” Thesis is anyways, but everything he said was utter crap IMO.
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I’m showing my ignorance here… but are all Premium Themes under GPL? Yours, StudioPress, WooThemes, etc.?
Am I understanding correctly: the Thesis guy wants to sell his theme while requiring that no one alter it.
Thank you for your post. I’m just trying to sort it all out.
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Mitch Reply:
July 14th, 2010 at 3:12 pm
Thanks for your comment, trav.
Under a GPL license, you have to be able to have your theme “redistributable”. Theme developers like WooThemes and StudioPress released their code under the GPL and use a “support” revenue model – basically you pay to have access to their forums, phone calls, etc.
Thesis doesn’t work like that – you pay for the code because they feel that their work should be charged for. You also can’t distribute it (or use it on sites other than your own) because that’s a violation of their terms of service.
I charge money for my themes that I develop, but they’re all defaulted under the GPL – if someone wanted to re-engineer a theme of mine, and they have the time, that’s fine. But I don’t distribute the themes – it’s a case of services sold vs a product given away, so I can still charge money and open the code to where people can learn (in fact, I write tutorials based on my own themes all the time).
Does that help?
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One day there’s going to have to be a court case to really decide the issue, in general. I’d hate for to be a WordPress/Thesis lawsuit, because it’s just going to be ugly, and it will be a distraction for an important segment of the community.
As far as I can tell, the interpretation by the Software Freedom Law Center is a correct interpretation of the relavent portions of the GPL. There is a counter argument which hinges on the use of the phrase “derivative work”, but I think that the provisions of the GPL are more specific than that. Focusing on the “derivative work” issue seems to ignore the rest of what the GPL says.
I posited before (on wp-hackers, I think) that a possible way around this would be to make the main HTML code of a theme be a stand-alone template, with a code shim to act as a buffer between the theme and WordPress. The shim itself would need to be GPL, but then you could separately license the bulk of the template. Done smartly, you could write separate shims that could let the template work with systems other than WordPress.
I’m not advocating this as a “good” thing to do, just pointing out a possible edge case (and it’s contrary to the spirit of the GPL and WP). And it’s not completely straightforward either, as you’d end up having to write a whole theme framework that works completely independent of WordPress’ template hierarchy. Once done, people could code new templates against the shim, though. The shim would likely all be contained in the theme’s
index.php, and would contain a template renderer, along with generic helper functions which would call out to the actual WP template functions (or whatever CMS the shim was written against), then pass data back to the rendering layer.It might make an interesting thought experiment for somebody who has time on their hands. But I don’t think it would make for good themes.
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Mike Schinkel Reply:
July 17th, 2010 at 7:47 pm
@Dougal: As a complete alternate, it would be interesting if themes would be evolved in future versions of WordPress to require a shim to operate thus forcing themes to include GPL code (I haven’t yet thought through how to do this technically but am pondering such an idea anyway.)
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GPL is GPL, Pearson is violating it. There have been cases that establish it pretty clearly, seems this might be another, Pearson needs to grow up or get a lesson in Open Source licencing.
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Ok that makes sense. Thank you for the clarification and prompt reply.
I’m hearing:
WP is happy for devs to charge for themes and charge for support, you just can’t get pissy if folks do what they want with your stuff. And the Thesis guys say we want to charge for the theme, support and prevent folks from doing stuff with our theme, unless we get paid.
Is that right?
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Great summary. I watched the excellent debate as well and came out feeling the same way. Matt really does seem like he actually gives a hoot about the community and that he really doesn’t want to have to sue. That being said, I hope he does. This really would set a horrible precedent that could potentially be quite harmful to the community.
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I really know nothing about the debate save what you have posted, Mitch. However, it seems to me that if you play in someone’s sandbox then you play by their rules no matter how loose they may be. WordPress is a powerful platform that offers you and anyone who develops for it a huge sales tool in its ease of use.
I know that if I were selling themes/frameworks or whatever, I would continue to innovate or create new designs rather than ride the coattails of a past success. If the work is worth it, people will keep coming back for more. Someone once said if you don’t want your stuff stolen, don’t put it on the internet. Designs can be ripped off but one’s creativity & knowledge are their own.
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Mitch Reply:
July 14th, 2010 at 3:33 pm
Check the #thesiswp hashtag – it goes back quite a bit with the debate’s happenings today.
And that’s really what the issue boils down to. WordPress has the rules it wants people to use their software to follow, and Chris isn’t following them. It’s clear cut when you break it down like that, and it’s up to Chris to either play by the rules, find a different ballpark, or face the consequences.
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While a court case may be needed to settle the debate, I feel that it would be detrimental to the GPL – regardless of who ‘wins’. The ruling would set case precedent, and an uninformed judge would undoubtedly create a cottage industry of GPL lawsuits. Not to mention that it would be a major distraction for both GPL, Automattic, and the open source community at large.
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Mitch Reply:
July 14th, 2010 at 3:42 pm
Eric: I do agree with that. However, both parties I think have resigned that this is the direction it’s heading because neither of them confirmed or denied wanting (or not wanting) to sue. Matt said several times this was a last-resort for him, with Chris stepping in later to basically say “bring it on” (paraphrased).
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Mike Schinkel Reply:
July 17th, 2010 at 7:52 pm
@Eric Marden: I think it would actually be quite good to have this settled in court. Right now what we do not have is true clarity and “markets” generally perform better when there is clarity (I’m using the term “market” broadly in this case, i.e. the WordPress ecosystem is itself a market; even when it’s not a financial transaction market it is a market just the same.) A judgement from a lawsuit would establish precedent and generate a level of clarity that we currently do not have.
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Eric Marden Reply:
July 23rd, 2010 at 9:41 am
Really? I think the resolution we received was much more amicable, don’t you think? Chris voluntarily re-licensed Thesis under a split licencse, GPL for php code, and his current proprietary license for everything else – based solely on public persuasion. There are numerous landmark cases for even non-copyright issues that failed to settle debate, and I still feel that if this had gone to court we’d have ended up in that same boat.
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Kimberly Reply:
August 8th, 2010 at 3:14 pm
Agreed 100%. Clarity that let’s everyone in the room know where they stand, how tall and what boundaries can be bent &/or adhered to. Without a court judgment, I fear the ongoing losses which may deteriorate GPL/open source as we know them to be. Give an inch..and the punks will steal a mile.
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Mitch, your comment is inappropriate… And I quote, ” Chris doesn’t want that to happen, because he feels like the redistribution would cut into his revenue stream.” It was made clear that this wasn’t the case. Even Brian Gardner, a supporter of GPL, agrees that this wasn’t the case. I think your statement may be considered libel.
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Mitch Reply:
July 14th, 2010 at 3:40 pm
Derek, Thanks for pointing that out – went back to my notes to confirm that and have edited the post to reflect that.
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The basic gist of the debate is:
GPL says that any code under GPL license can be redistributed freely. It also spells out when ‘third-party’ code tied to a GPL system also falls under GPL.
According to the Software Freedom Law Center, plugins and themes (minus CSS and images) for WordPress inherit the GPL.
On the other hand, Chris Pearson puts the Thesis theme under his own license, which seeks to prevent you from redistributing the theme to third parties. A right that the GPL specifically gives.
This is the source of the conflict.
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Mitch Reply:
July 14th, 2010 at 3:47 pm
I knew I could count on Dougal for the $1000 explanation – you said it perfectly – thank you!
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Actually there is still no clear legal opinion that something like a theme falls under the GPL. The GPL is rather unclear there. “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…” does not necessarily refer to themes. You can argue that themes use a portion of the original software. But you can also argue that themes don’t do that, that they aren’t a modification of a copy of the program or a portion of it.
There is at this moment no certainty if Thesis violates the GPL. Because of that, there is also no certainty for anyone who writes a theme or plugin if they have to use GPL or not.
Thesis is a testcase for this. Thousands of developers are watching this case, on both sides of the argument. Drupal is GPL too, as is Joomla!.
You can’t just say: “he broke the rules” that just isn’t certain yet. It is the opinion of wordpress and the FSF that he did. But will that be the legal opinion?
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Mitch Reply:
July 14th, 2010 at 3:51 pm
What about the opinion of the SFLC that Dougal mentioned? It’s not a case, but it seems to be a clear legal opinion. Does anyone have a link to their written opinion?
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Mike Schinkel Reply:
July 17th, 2010 at 7:54 pm
The SFLC is an advocacy group for the GPL so I wouldn’t take their opinion as gospel. It’s more of an advocacy for their position and anyone that studies politics knows that advocacy is always filled with spin…
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Mitch, he also didn’t say anything about his profits taking a hit. He said he didn’t want other people to profit off of his good name and work.
Also, if you listened Brian Gardner, another GPL supporter, he mentioned that his profits increased when he went GPL.
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Mike Schinkel Reply:
July 17th, 2010 at 7:55 pm
@Derek: After this brouhaha I’m not sure Chris can claim “his good name” anymore. Just sayin’…
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Ahhh, ok. So the GPL isn’t just “code under GPL license can be redistributed freely” it’s (in this case) really “”code under GPL license MUST be redistributed freely”.
And the thesis guys don’t think they MUST do anything… even though the WP community, over the years, did most of the heavy lifting. Coming from the book publishing world I know how harried “derivative works” can get. Very few winners in that fight.
Thank you all for the discussion here, helping us think a little clearer.
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This is an issue that comes up time and time again in the WordPress discussions across the web. I recently read an interesting article (unfortunately don’t remember where) that was talking about how someone can buy a theme under GPL and then turn around and redistribute it for free, legally. This has happened but the majority of users will still buy the them from the original author.
This issue extends past WordPress. Mark Pilgrim the author of Dive Into Python, which is under the GNU license, had a situation in October 2009 where someone else republished his work and started selling it on Amazon. You can read about his encounter here http://diveintomark.org/archives/2009/10/19/the-point
I think the thing with WordPress is that it is possible (and pretty easy) to create something on top of it, license it under GPL and still be able to feed your kids. GPL does not mean free it means freedom.
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Mitch Reply:
July 14th, 2010 at 3:58 pm
Bandon, The term that gets used as “Free as in Freedom, not Free as in Beer”
Most people (99% of people) will buy from the original author because, on the web, trust is key. A redistributed theme could have viruses, malware, sploglinks, etc. WooThemes doesn’t stand for that, and you know that’s not what you get when you buy one of their themes. Also, you get their support, which is key.
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When you buy Thesis (Personal or Developer), can you see the PHP code or Thesis encoded it?
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Mitch Reply:
July 14th, 2010 at 3:58 pm
It’s not obfuscated, but it’s dang near impossible to edit directly in WordPress. That’s why you have plugins like OpenHook that make it simple. Well, as simple as it can be.
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Thanks Mitch, It took me till this year to understand the difference between “free as in freedom” and “free as in beer” but I finally got it thanks to a friend. This is definitely an interesting case we’ll see what happens.
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Doug is absolutely correct in that this will require a court case to ultimately decide what is meant by a derivative work. While thesis can’t work without WordPress, to me that’s irrelevant to a point because WordPress couldn’t work without Thesis either. Neither can stand alone on their own.
Unlike Doug though, I don’t see a theme as a derivative work because it simply uses some WordPress functions to display information in a specific manner. Based on the FLC’s interpretation, a piece of software running on top of a GPL’d OS could be considered a derivative work simply because it uses functions included in the OS written by someone else. Doug and I had a discussion on twitter in which he noted that the GPL had a clause for GPL’d OS’s, but I still don’t understand how an OS would be considered different than WordPress in terms of applications and themes respectively.
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Mitch Reply:
July 14th, 2010 at 4:14 pm
Sorry, but that’s false. WordPress can, and does, run without [thesis] all the time. You’re looking at an example of one right now – my site’s not on Thesis, and it doesn’t need thesis to survive. I can give you hundreds of non-thesis sites that are doing just fine.
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I’m going to have to agree with Chris on this one. It is not entirely clear whether themes have to be redistributed under the GPL. We will just have to wait and see how this works out.
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First of all thanks for the linkback.
I do agree with what you say above, I’m not a big fan of thesis, never will be. He did come across a little arrogant (the top 3 in WordPress? Please.), however I would love some clarification on the GPL (as you’ve linked to my explanation above, but it’s my interpretation of the GPL), as Evan says it doesn’t appear clear beforehand (I think it does now the threat of legal action), but likewise it’d be great to find out what you can & cannot do.
All it would take would be for a pirate to take GPL software that’s paid for & distribute it illegally? Or am I missing something?
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Mitch Reply:
July 14th, 2010 at 4:43 pm
Rhys,
That’s true – any pirate could take a GPL theme and redistribute it. However, it wouldn’t be illegal because of the GPL license. Most people in the WP community are smart enough to police themselves, and are also willing to pay for good work (that’s why WooThemes and StudioPress do so well, and have GPL themes – because the support and other things they offer is fantastic).
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As a Thesis user I appreciate Chris’ work. As a business, I need to know that this isn’t an issue.
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Technically, it wouldn’t be ‘pirating’. It *would* be rude in some cases, but the GPL specifically insists that once the software has been distributed, it may then be redistributed (modified or not), as long as it is made clear that it is still under GPL license. And I think the GPL forbids you from just rewriting the credits and claiming the work as your own. That would be against the license terms. And I think many people wouldn’t want to redistribute something they’ve paid for, anyways. Yes, there will be “misfits” who might do it, but they most likely weren’t going to give you any sales in the first place.
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I think this GPL FAQ entry on aggregation vs combining makes it fairly clear what the intent is, and why it is believed that plugins and themes (at least the PHP portions) inherit the GPL from WordPress (emphasis mine):
I will note that a lot of the provisions of the GPL talk about binary executables, separate from the source, which is not really applicable with interpreted languages like PHP (and Perl, Python, etc.). But it doesn’t matter — the GPL is all about the availability of the source anyways.
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Mike Schinkel Reply:
July 17th, 2010 at 8:02 pm
@Dougal: An important point that’s rarely made when the GPL FAQs are presented is that the GPL FAQs are merely an interpretation that the authors of the GPL would like to see be reality when in fact the FAQs are merely their perspective, not how the license would actually be interpreted in a court of law. Frankly I’d like to see this go to court so we could finally see how it would be interpreted. Until then it’s all hot air and bluster on both sides (that last comment is not pointed at you, with who I have great respect, just at the discussion of the topic in general which I’m admittedly contributing to.)
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@Mitch – Forgive my lack of clarity. Even though I was talking about thesis, the fact is WordPress can’t run without *a* theme (thesis was simply the topic of discussion). Let me know how far you get if you empty the contents of your wp-content/themes directory.
@Doug – with regards to the GPL, do you have any comments on the following: http://perpetualbeta.com/release/2009/12/why-the-gplderivative-work-debate-doesnt-matter-for-wordpress-themes/
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Hi Mitch. FYI, you stated that WordPress has 3.3 million users, but we actually have more than 20 million. Cheers!
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Mitch Reply:
July 15th, 2010 at 1:30 pm
Doh – mixed my numbers up – it was done in a hurry. Changed, and thanks for the heads up! (at least it doesn’t change my point – it’s still larger
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It’s sad that we’re talking about this. It’s sad that Matt is acting bush league and is afraid to go to court, and instead opts to openly poach Thesis users.
This just strengthens my resolve to move to something like Squarespace, where I don’t have to worry about open source crusaders and anti-capitalists. Sure, you can sell a premium theme, but only if you contribute to the greater good. That’s B.S.
Mitch, you said WP can’t run without Thesis, which is true, but it cannot run without a Theme. WP calls for a theme in the code, and therefore, I don’t see how either could operate without the other.
I don’t understand the need for this debate. I don’t even use Thesis, but I’m pro-capitalism and protection of work. I’d rather see WooThemes, StudioPress, and every other developer tell the GPL to screw off. I don’t want some cowboy developer hacking through code, undercutting people, or trying to sell redistributed themes.
This whole open source concept sounds Marxist, and the OS community is representative of that. Maybe I’ll just go buy every premium theme and start selling them for $1. Go to fiverr.com and you can buy any WooTheme for 5 bucks. That doesn’t make sense.
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Mitch Reply:
July 15th, 2010 at 1:33 pm
It’s not the images and CSS that are covered under the GPL – it’s the CODE. Thesis has blatantly copied/modified code from the WordPress core and claim it as their own – that’s where the disagreement comes in. WooThemes will technically allow you to sell the themes, but themes from outside of their site usually have spam, malware, splog links, etc built in. Most people shell out to the original company for the protection from those things.
{off topic} Thesis, on the other hand, has been hacked recently in one of their beta releases…
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Nathan Hangen - Digital Emperor Reply:
July 16th, 2010 at 9:21 am
So WP creates a license that developers pay to use…seems straight forward to me.
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Totally agree. Some crazy entitlement issues and pride (he admitted that though).
Gotta respect GPL and WordPress… without both my themes (and business) wouldn’t exist!
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There’s an interesting historical precedent for these kinds of scuffles: although the GPL is unambiguous, themes seem to fall into a zone that *feels* different because they’re connected to design and branding and visual arts, areas that feel very different than code. Matt touched on this in the video, but it was often overlooked — a “theme” consists of two components: a PHP application built on top of WordPress and completely dependent on it, and a set of design assets. The client-side design (CSS, images, JS) assets are not covered by the GPL, but the PHP code that calls WordPress functions in the same memory space *is*.
About 4 years ago, when Drupal 5 was under development, a new default theme for it was being created by a handful of designers in the community. A WP developer found it in Drupal’s CVS repository, ported it to WordPress, and it ended up being released for WordPress a few weeks before Drupal shipped. (http://acko.net/blog/wordpress-com-copies-drupal-theme & http://en.blog.wordpress.com/2006/12/12/new-theme-garland-and-rockin-color-picker)
It caused some drama, because there were discussions about whether it was *cool* to do that, or whether it was *nice,* or whether they *ought to have* done it given that it was part of Drupal 5′s attempt at a distinctive UI refresh. But everyone in the Drupal community agreed that it was totally legal. Today, lots of WP themes get ported to Drupal as well; it’s a cross-pollination issue.
It’s interesting that themes are again the hot spot for these kinds of conflicts; whether it’s between communities or inside them, it tends to be a lose-lose scenario for those arguing. the GPL is pretty unambiguous, and the arguments tend to become a tortured-analogy contest.
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@John – that’s silly, because every WordPress install comes with default themes included. A theme-less WordPress install, while theoretically possible, in practice doesn’t exist.
Also, thesis *needs* WordPress. Whilst WordPress needs *a* theme, there are plenty of GPL ones available to use. Therefore you can’t sensibly compare them in that way.
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I did an analysis of Thesis code and found several areas where Thesis outright copied WordPress GPL licensed code: http://wp.me/pg2iw-1R
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Well there is always the BSD licence like Django then you can do what you want. Which make a nice distinction between Django(BSD), Drupal, and Joomla as well as WordPress(all GPL). A good reason to use BSD platforms if you want to make money with your code… But It seems very clear that GPL is meant to facilitate and even require that associated extensions are similarly licensed and for that matter available. In short one should not be counting on selling GPL code, but rather the support for it. On can be paid for developing GPL code, but once it is in the wild it is gone! If people choose to pay for it so much the better, but there is no legal requirement to do so. It seems quite clear from the GPL docs.. “Premium” Themes seem to violate the GPL if payment is required, rather than “negotiated or given freely” and in that case more likely as part of a support and or implementation agreement. Under BSD you can modify it and make your part proprietary and only choose to make public that which you want to, GPL does not allow this.
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@Dave – it’s irrelevant that WordPress happens to include a default theme with its package. The fact is it needs *a* theme to operate, and therefore it needs a theme as much as Thesis needs WordPress.
But you do make a larger point that is missed throughout much of this debate regarding other GPL’d themes. Shouldn’t the market for WordPress themes be the determining factor in all this? If people care about the license a theme is released under and want a GPL’d theme, Chris either complies or he goes out of business. Up to now, the market has shown it cares more about the product than the license.
Also, as Jane noted, there are 20 million+ WordPress users. Is Matt advancing the brand/name of WordPress by getting into a very public and visible spat (that was not very flattering for either party) with a theme dev who currently has about .1% of that base? In my opinion, no – he only loses by involving himself in this.
So really, if it’s about the principle, he should either sue Chris and get a court to rule on the derivative work/fair use on the GPL, or he should shut up about it and move on. The existence of a potential license violator isn’t hurting WordPress at all, and Chris has been a source of inspiration to a lot of devs and has influenced a lot of themes and theme designers. To those that think he’s never given anything to the WP community (as some have claimed), ask those who use his PressRow theme on WordPress.com, and Cutline, Copyblogger or Neoclassical themes for .org.
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Mike Schinkel Reply:
July 17th, 2010 at 8:11 pm
@John: The market could decided, but it hasn’t been educated on the topic. It’s much like how many people stop buying clothing from companies when they learn that the clothing is made in 3rd-world sweatshops but if some no one strove to inform the public of these sweatshops then consumers would never know to consider avoiding them. The same is true with Thesis; most consumers don’t even know there is an issue.
And not that I agree 100% with exactly how Matt has gone about it but he has been informing the public about the GPL and how Thesis does not support it, which is completely within his right to do yet you take him to task for that. How can the market decide if it doesn’t know it is making a decision?
Yes, let the market decide, but let that market be educated so they can make an explicit decision instead of an implicit one.
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@John – not wanting to labour a mostly irrelevant point, but I still don’t agree with you on that. Thesis needs WordPress because it is the one CMS it runs on. WordPress can use many different themes. Therefore the relationship between the two is not equal. WordPress can run without Thesis, Thesis cannot run without WordPress. Therefore, Thesis is utterly reliant on WordPress. The reverse however is not true.
On the other point you make, you’re probably right – a decision needs to be made by Matt about how to deal with this situation. It’s as much a political discussion as anything, and recent events seem to have backed Matt into a bit of a corner. I think though that if the situation is ignored and no court case forthcoming, a precedent will have been set whereby a publicly acknowledged example exists where GPL has been contravened and nothing done – and this could be dangerous for the open source movement as a whole.
But legal stuff is messy and nasty and I understand why people involved aren’t keen.
Incidentally, until this morning I was a Thesis user, and to be honest I didn’t know who Pearson was. But his performance on that podcast made my mind up that he wasn’t the type of character I would want to support in any way, so I ditched it. I think a few others might do the same.
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> Theme developers like WooThemes and StudioPress released
> their code under the GPL and use a “support” revenue model
> basically you pay to have access to their forums, phone calls, etc.
This seems pretty disingenuous. As far as I can tell, you can’t download and use a premium WooTheme without paying for it. In WooThemes’ list of purchase options, “Free (with no support or access to forums)” was not an option.
Also, would WooTheme be okay with me openly posting the premium themes I bought from them, and making them available on my blog for anyone to download for free and use? I doubt it.
Really, there’s no difference between Thesis (and its ilk) and WooThemes (and its ilk).
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Mitch Reply:
July 15th, 2010 at 2:59 pm
Keep in mind, folks, that CODE is all we’re talking about here – images and CSS are considered proprietary and it’s up to the original author to determine whether that gets released with the same license.
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Mike Schinkel Reply:
July 17th, 2010 at 8:17 pm
@Tod Maffin: “This seems pretty disingenuous. As far as I can tell, you can’t download and use a premium WooTheme without paying for it. In WooThemes’ list of purchase options, “Free (with no support or access to forums)” was not an option.”
The GPL does not require that you provide an easy way for people to get your work, only that if you distribute the work then the people to whom you distribute get the source and have the right to distribute if it they so choose.
“Also, would WooTheme be okay with me openly posting the premium themes I bought from them, and making them available on my blog for anyone to download for free and use? I doubt it.”
It wouldn’t make it they were okay with it or not, they chose to GPL it thus you’d be free to distribute it if you acquired a copy of it. Of course as Mitch stated you couldn’t distribute the images for the CSS because they are not bound by the GPL.
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Bob Waltman Reply:
July 18th, 2010 at 12:32 am
Tod, woothemes are distributed on many different sites from anywhere from $10 for all the themes to $20 per theme, I’ve seen these sites myself. They do know about it and yes they are not happy but live with it because they abide by the GPL. They are also possibly the most successful of all theme makers, at least I would think in the top 5. So it’s clear that GPL did nothing to hurt their success, if anything it worked in their favor.
You’ve got to keep in mind too that people who buy stuff like that from 3rd parties wouldn’t buy from the dev to begin with and most of these people aren’t serious developers or entrepreneurs. Those that are would prefer to get the support from the actual developer especially if their sites are their form of income.
@Dave Briggs, I agree, Matt can’t let this drop because it would be a precedent that can have far reaching consequences in the open source community. Unfortunate he’ll have to take a stance and it will have to be in court because from what I heard from Chris it’s clear that he will not under any circumstances abide by the GPL.
And I too am removing Thesis from all of my sites as soon as I decide on a replacement. The GPL aside I don’t want to support someone like Chris who seems to only be concerned about the almighty dollar and how important he is. Man did he turn me off, I completely lost all respect for the guy and even if he’s right I still don’t want to support him any longer. BTW I don’t think I have ever seen him help anyone in his forums personally. He has some great mods but he never shows up.
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@Tod – you misunderstand. There is nothing in the GPL that prevents people from charging. Cost is not an issue here. It’s the fact that if you base your stuff on GPL licensed code, then what you produce also has to be GPL licensed. You can charge what the hell you like for it.
Woo themes probably wouldn’t be too happy about it – but remember we are just talking code, CSS and images aren’t included. And a Woo theme without those would look pretty shabby, so I doubt they would be too worried.
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@Dave – we’ll have to agree to disagree on dependency.
RE precedent set by doing nothing – maybe a political precedent, but certainly not a legal one. Your license isn’t any less valid, legally, simply because you choose to cherry-pick who you sue for violating it. That’s why I think this whole debate is pointless, even if it’s fun and interesting, because I don’t think WordPress has suffered any negative consequences because of it. If you haven’t been damaged, why bother suing? Principle is one option, sure, but as many have noted, there are far better uses for the resources necessary than to battle this out in court.
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Bob Waltman Reply:
July 18th, 2010 at 12:38 am
@John, the problem is that this whole argument is pretty high profile. If Matt/WordPress just walk away at this point it opens the door for other developers to say “Hey screw them they aren’t going to do anything anyway so we aren’t going to abide by GPL”, and that is dangerous and can have a negative affect on not only WordPress but the community as a whole. I really don’t think Matt has much of a choice at this point, especially after Chris pretty much dared him to do so.
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If this goes to Court, Matt is going to win as GPL para you quote, thesis using basic functionality of WordPress, so any code in the theme has to be GPL.
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that girl again Reply:
July 19th, 2010 at 1:50 pm
If this goes to court, Matt is going to win as he is richer than Chris Pearson and will be able to afford better lawyers.
It won’t go to court, because Chris will run out of money before Matt does.
People need to stop mistaking this for a legal issue. It’s an ideological one. Nobody involved in this actually cares what the law says. Does anyone seriously believe that it would make any difference to the way Matt runs things if a judge ruled that themes didn’t have to be GPL? Non-GPL themes would still be banned from wordpress.org and non-GPL developers would still be badmouthed at every opportunity. Whereas if a legal judgement went against Chris, all he’d need to do is switch to a platform with a less restrictive licence, or start work on his own WP alternative. I’m sure he’s made contingency plans.
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Mike Schinkel Reply:
July 20th, 2010 at 3:09 pm
Don’t be so sure that Chris doesn’t have a lot of money. Word is he has made a killing with Thesis. Of course if he has spent like a drunken sailor, maybe not. And on the other hand Matt may get tons of free legal council from the SFLC, the FSF and/or other proponents of a broadly interpreted GPL so that could tip the scales significantly.
As for it being a legal vs. ideological issue, you are both correct and incorrect.
You are right it is a primarily an ideological issue and that (almost) nobody in the debate really cares what the law says; they all want to interpret based on their own ideology (sounds at lot like any political hot-potatoe issue really, doesn’t it?)
OTOH, if it comes down to an irresistible force (Matt/WordPress/GPL in this case) and an immovable object (Chris/Thesis/non-GPL in this case) then it will become a matter of law and a court will decide the issue. Of course what is likely to happen, and what will be unfortunate if so, is that a court may issue a decision that is narrowly about Thesis and not broadly about the GPL which will leave the issue lingering.
So in either case if the GPL+Theme/Plugin debate were to be shot down or upheld, will things change? Yes, I think they would.
In the case of Matt/WordPress’ position being shot down I think it would result in, as you predict that Matt/WordPress will do more to encourage people to support GPL, and I think he would end up doing more to explicitly help those who go GPL actually make money. As is, Matt doesn’t really have to help GPL-supporting vendors find viable business models, he can and does just point to the few who have and rest on his, the SFLC’s and other laurels who advocate for a broad interpretation of the GPL,. Basically having their position shot down would inject competition into the model; the GPL would have to compete for its value on the merits of the support that Matt/WordPress could provide rather than maintain the monopoly of their current interpretation that dictates every theme and plugin require GPL. (Note I’m only referring to whether GPL applies to plugins or themes here, I’m not discussing the validity of the GPL at all. Personally I think the GPL would and should apply if someone were to fork WordPress or use significant parts of WordPress code in their own plugin or theme.)
OTOH, if the GPL for plugins and themes were upheld then Chris would be forced to either GPL Thesis or develope for other platforms like Hibari or Expression Engine or similar.
Either way, it would generate *clarity* instead of the name calling and uncertainty that is currently jamming the Interwebs. I for one have mixed feeling about what the outcome should be, but either way I vote strongly in favor of clarity.
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@Vivek – that’s assuming the court interprets the GPL in the same fashion you have. There are many (myself included) that don’t view the GPL so broadly. By your definition, any application running on linux must by GPL simply because it utilizes GPL’d kernel functions.
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much as I see lawsuits as huge distraction from going boldly where no one has gone before I think it’s not just a WP issue. It’s a GPL issue and a threat to the entire GPL publishing community. WP should have thousands of other publisher standing shoulder to shoulder, contributing to the cause of defending the GPL license from marauders like Pearson.
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So what would Pearson have to to do “comply” with the rules he’s been accused of breaking? I’ve been digging around blog posts trying – as someone less technical, but who uses – and likes – the Thesis theme on some of my sites – to find more facts, but all I can find is veiled rants at/about Chris. Where can I find a little clearer (and a bit less biased?) language on what was violated and what could be done to fix it, other than a lawsuit?
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Mitch Reply:
July 15th, 2010 at 9:36 pm
Doni,
Basically it comes down to three possible actions (that I can see so far):
1) Chris ends up in a lawsuit.
2) Chris licenses the code under the GPL license as is.
3) Chris would have to completely rewrite his theme as (or on) a different content management system.
As for #3, here’s why:
Should thesis be found to actually be GPL, than any derivative of it would also be GPL. That means that he couldn’t “fork” thesis (or change it to be non GPL) using the code he currently has. He would need to start from scratch and develop a new theme onto a CMS that has no restrictions on licenses, or create a CMS out of thesis.
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“By your definition, any application running on linux must by GPL simply because it utilizes GPL’d kernel functions.”
@John, I wish you would quit repeating that over and over. That is simply not true, and the GPL site specifically covers that issue. NOT A VALID ANALOGY. Please look over the GPL FAQ. I know you don’t hold much credence in the FAQ (vis a vis the license itself), but the GPL was crafted by attorneys, to the best of my knowledge — I’m pretty sure they thought some of this through.
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@Doug – if you read what I wrote, I noted that by *Vivek’s* definition. I didn’t say that’s what the GPL says. Additionally, as I noted during our twitter talk, I fail to see what the difference is between Linux and WordPress from an operational perspective. As far as I can tell, the only difference between them is at what layer of the system each operates.
Additionally, I was interested to see (and failed to find) how the GPL crafts an exemption for an OS vs “regular” programs because to me they’re both software.
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Dougal Campbell Reply:
July 16th, 2010 at 7:39 pm
Yes, sorry. But it *does* seem to be an idea you agree with? I have to ask: have you done software development? I can see from your site that you do technology a lot on the hardware side, but I don’t know if you’ve done deep software development, dealing with pre-compiled libraries, OS system calls, etc. If so, I would *think* that the difference would be apparent. But maybe it’s not to everybody.
To *me*, the distinction between applications running under an OS and a theme being pulled into WordPress is clear, even if it’s hard for me to come up with analogies to help others understand how they are different. But, it also helps that I’m fairly intimately familiar with how WP pulls theme code in, and what kinds of things a theme must do in order to be useful.
It also may be important to keep in mind that the GPL is about protecting the freedom of the *source code*. Originally, a primary concern was for software which is compiled from source into binary executables. Using the GPL as your license was to ensure that if anyone else used your source, that they couldn’t try to “make it their own” in such a way that they could make minor modifications, redistribute it as if it were their own, and keep secret that the work was based on your own. It gives the freedom to share your code without worrying that somebody else will benefit *unfairly* from it. The bits about how one piece of code intermingles with another and how GPL protects it was weighted towards making sure that one couldn’t leech onto an Open project without sharing the source that makes it possible. The way to accomplish that was to make the GPL “viral”.
Of course, since that time, performance of scripting languages such as PHP, Perl, Python, Ruby, Javascript, and others have reached a point where they are used for many projects. And in these cases, the source *is* the executable, so some bits of the GPL seem to apply more awkwardly, perhaps? But this brings me back to how the WordPress Core and a theme are intermingled.
If WordPress was a compiled program, the way that themes are incorporated would make it nigh impossible for them to be run as separate programs (by analogy: separately forked programs communicating by some sort of IPC, or Inter-Process Communication). The theme code is in a sense ‘consumed’ into WordPress, becoming part of its program execution flow. Also consider that there is no way to run a theme outside of WordPress. You can’t just point your browser at one of the theme’s PHP files directly, and expect it to do something useful.
Compare this to an executable running under an operating system. Let’s say the ‘date’ command. All it does is query the operating system for the current time, format the information, and echo it to the terminal. I can see how someone might think that the process of loading the executable into memory is similar to WordPress loading a theme, but it’s really quite different, technically.
When WordPress loads a theme, it passes full control over to the theme code. zThe theme code could do *anything*, including abort execution of WordPress. When the operating system runs a process, it’s a managed affair. It controls time slices of code execution, and there’s (normally) no way that a regular user process could cause the OS to abort and die. Also, the source code of an executable (written correctly) could be recompiled under a completely different OS — it could be moved from Linux to BSD to Windows to Mac. A compiled program is not necessarily tied to a *particular* OS, whereas a WordPress theme is just that — a *WordPress* theme. You cannot make it work under Drupal, Joomla, Habari, or any other CMS without pretty much completely rewriting it from scratch. And again, it *might* theoretically be possible to create templates which could work cross-CMS with some sort of system-specific rendering layer, and thus isolate the HTML from the rest of the code, but that would be very different from the themes we see today. And that rendering bit would still intermingle, and theoretically would need to be available under a GPL license if distributed.
I think part of the problem here is that “derivative work” has a specific meaning in relation to other types of media (literature, music, film, art, etc.) than it does for software, particularly as the GPL intends it. So that phrase has become overloaded, in a sense. I think that focusing on the phrase “derivative work” and trying to apply the meaning you’re familiar with is why you see it one way, and I see it another. And the standard definition of “fair use” might similarly be overloaded.
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John Reply:
July 17th, 2010 at 11:16 am
Phenomenal reply. Thank you very much for the insight. We are a lot closer actually than I initially thought. To answer your question, I’ve done some minor software development for integrating an ERP framework into our production software at work, so I have a basic understanding, but I’ve never built an entire product or anything like that.
It’s also an extension of copyrights and who owns the written code. Is someone’s theme part of the source code of WordPress?
Isn’t that more because the functions used are specific to the CMS? That could occur in programming environments, like trying to use .NET-specific functions in a Javascript environment.
I think we have to take care in altering a term’s definition based on circumstances. If a term’s legal definition changed with each circumstance, then the term itself essentially becomes meaningless.
I now better understand how WordPress interacts with its theme, but I’m still not convinced the actual code that is written to power the theme is a derivative work of the WordPress core itself, and that’s where it would appear we diverge, but I’m not sure why.
As you note, your conclusion is based on your definition of derivative. As I understand it, derivative means “of the origin”. And to me, that makes total sense when discussing in terms of the GPL. If you fork WordPress, you are taking their original code and modifying it. If you redistribute said work, you must use the same license (which is what WP did w/ b2).
In terms of a theme, the code that powers it was written from scratch and did not inherit or modify (generally speaking) any core WordPress code. That in order to work in the WordPress system it must utilize the WordPress API, and be absorbed as part of the execution system should have no bearing (and in my mind is a weak argument) on essentially who owns the copyright to the code written. To me, the copyright to the theme code doesn’t change simply because of the system the code was written for, nor how that code is executed by said system. As long as the code writer is not taking any core WordPress code and modifying it (adding behavior to an existing function I don’t believe would qualify, but an argument could be made), then he is not making a derivative work, and therefore should be able to distribute his work under any license he chooses.
But hey, that’s just based on my definition. I guess if you have a different definition of “derivative”, then that may change the entire paragraph above. Perhaps the writers of the GPL should have been more clear, but since we have people questioning the meaning of “is”, I don’t see grey areas going away anytime soon.
What do you think?
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Mike Schinkel Reply:
July 20th, 2010 at 3:19 pm
@Dougal: Great technical explanation.
However, I still think there is a very real potential that the technical distinctions are not valid legal distinctions and that a court of law would see them differently. And the wants and needs of the developer community are ultimately not important when and if this goes to court.
BTW, note that over the past 4+ days of considering this debate I’ve continued to evolve my understanding and position on this issue so I’m not someone who came to this issue with an unchangeable stance. And because I argue that the GPL may not legally be able to have as broad an interpretation doesn’t necessarily mean I’m against it only that I’d really like to find out what is indeed true and gain some clarity on the issues of which I don’t think we yet have.
Or as my dad would say “Right now it’s about as clear a mud.”
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Chris may be coming across as a bit of a dick, but I think he has a valid point.
GPL’s are, in my view, there to help developers create better technology so that we can all prosper from their efforts, but it shouldn’t impede the creation of legitimate businesses from them. In that vein, I would see the themes business as something more analogous to an App Store (i.e. a business layer) rather than GPL development layer. Thesis is a creative expression built on top of a framework, not a contribution to the framework itself.
All that said, that’s the common sense view. Legally, if it does go to court then I suspect Chris will lose.
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Mitch Reply:
July 16th, 2010 at 8:45 am
Tadhg, there are lots of developers who have done the exact same thing, licensed it under the GPL, and are making money. Look at guys like WooThemes, StudioPress, etc who have done fantastic themes that are GPL licensed, and they still make lots of money in other ways (PSD file purchases, support packages, etc). It still boils down to the fact that someone used GPL licensed code in their theme which, under the license, requires it to fall under the GPL.
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Nathan Hangen - Digital Emperor Reply:
July 16th, 2010 at 9:46 am
But that’s a red herring.
Just because something is working doesn’t mean it’s right…it just means we’re lucky that it works. That could change, especially as this debate enlightens people.
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@John – Not to come across as too much of a smarta$$, but since you keep referring to Dougal as “Doug” I question your ability to read and properly apply the GPL. Not that your arguments are all bad, but it seems to me, in order to be taken seriously in a discussion about reading and interpreting a written work, you might want to take a moment to read more carefully, and use more correctly, the name of the person you’re addressing.
@Mitch – Thanks for facilitating a civil discussion here. I am curious as to why you are not using threaded comments, though. Coming late to the post, and having so many comments here, I realized, as I was reading through, that it was difficult to discern to whom some of the replies were actually intended without the benefit of a thread. Is there a code or SEO reason as to why you’ve chosen not to enable threading?
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Mitch Reply:
July 16th, 2010 at 8:46 am
Kevin, This theme was actually another theme I found on the Internet and brought up to 3.0 – you’re right, though – I do need threaded comments – I may work on that today real quick to help facilitate the discussion a bit.
Oh, and thanks – I try to keep things civil around here. People are people, and whether they’re wrong or right at the end of the day we should agree to disagree. It never works out that way, but I do try
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John Reply:
July 16th, 2010 at 9:05 am
@Kevin – my bad. You’re absolutely correct. It would help if I could spell Dougal’s name correctly, and for that I apologize.
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Does the announcement of Headway Theme appeasing WordPress with a split license mean anything for thesis? Is this a compromise that could help end the feud?
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@Doni
Try these links for more background on the issues – and the grey areas – surrounding this debate:
http://www.frederickding.com/posts/2010/07/tracking-the-thesiswp-matter-part-1-15859/
http://drewblas.com/2010/07/16/beyond-thesis-does-the-gpl-go-too-far-and-what-makes-a-derivative-work/
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Seems open and shut to me,… use my code respect my terms. I’m not sure what Chris thinks his secret weapon is to dispute that in court. Too bad for Thesis users as they are the ones that will get hurt. I did read that Matt offered to pay the costs for them to transfer. Not sure if it is true but wow if it is, much respect! Seems he cares more about Thesis customers than Chris does.
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Mitch, you refer to Matt getting his hands dirty by taking the legal route. One of the questions I’ve just posed on my own blog (but which might get better discussion here) is: if anyone’s going to sue, who would/should it be? Matt? WordPress Foundation? Software Freedom Law Center?
That said, I hope this does not end up in court.
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I have been monitoring whole #thesiswp debate. Though being a Thesis skin dev. I still believe Matt was right till a point. Though the way he reacted on twitter was far away from professionalism and least expected from him. I will rather wait to see Matt filing a lawsuit against Thesis if he things he is also right legally.
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Just to clarify: “deriative” work doesn’t mean: Work that needs this or that base. It means: Based upon the work of others. So if i would vector-draw a blue house, release it under the GPL and you make it red, then it would still be GPL licensed. But you can’t make it GPL licensed, just because the canvas is GPL-licensed and “withou the canvas, there would be no image”… You couldn’t say: There’s some tech in my PC and the tech that powers this or that chip is GPL licensed, so anything you write or whatever on your PC is now GPL-licensed. Fact.
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OK, I have poked through the tweets, read the posts, listened to the debate bubbling away in the background, and now I have heard both Chris and Matt put their respective sides of the argument. So I now hold, what I would consider to be, at least a semi-informed view on the issue.
I can see both sides of the disagreement, but I have to say, I think Matt’s line of reasoning is the better informed, the most public spirited and the one which has already and would continue to benefit the online community the most.
Chris way over-estimates the importance of Thesis to the WordPress community, and his position in that community. Somewhat speciously, he uses this inflated estimate of its worth to argue he should not be subject to a license that was in place long before he built Thesis and upon which he was entitled, in fact as a businessman, obliged, to read and understand before so doing .
I am also astonished at how rude, boorish and over-bearing Chris was in trying to dominate the debate, and had I known his views and understood the issues a little sooner, I would never have bought Thesis.
I wish I could keep my temper in check, as Matt did, but I know myself better than that. So I tried to think what I could do to help, instead of just getting mad, and this is what I decided.
Because of the overriding benefit to the online community, even though he will surely prevail; I don’t think Matt should have to put up his own money to fight a law case to prove the validity of the GPL which is, in effect, on our behalf.
Therefore, I think the GPL should be tested another way. If you have bought a version of Thesis from DIY Themes (Chris Pearson’s company), or from any other website, you can click this link now and join the “Thesis Class Action Suit” list at http://eepurl.com/J0Mp, and let’s see just how many people agree with Chris, and how many with Matt and the GPL.
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@Terence: Nice try, but do you really think someone will offer that much information about himself? Sry, but simply: not with me.
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Terence Reply:
August 3rd, 2010 at 1:50 pm
Sorry, I’ve only just seen your reply.
Actually, you’d be surprised just how many people completed the information required and are on that list already. But as it appears that Chris has now changed his mind and created a more GPL friendly licensing scheme, no doubt we will be able to delete the list. If you were on the list you would have received an email to tell you that’s what we are doing. As you aren’t, then you won’t.
Take it from me, the only purpose of the list was to gather co-litigants and as such, entirely benign to the members of the list. If no litigation is to take place, the list will be deleted and all potential co-litigants will be informed.
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K Reply:
August 3rd, 2010 at 6:22 pm
So, what was the result? I’d like to hear something like “49% Pearson, 51% Mullenweg” or else. Thanks.
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Terence Reply:
August 3rd, 2010 at 7:13 pm
100% for Mullenweg.
Looking around at the themes that various designers make, including the Genenis theme that Matt mentions positively in his post http://ma.tt/2010/08/syn-thesis-3-switchers/ I agree that with Tafhg “Thesis is a creative expression…” and a good one.
My view is that even if Thesis were the crappiest program in the known universe, WPress’s insistence that something be free if it is tacked on to their code is the same in reverse as insisting the someone pay a licence fee for linking to the WP code – it’s an unreasonable fetter on the right of the creator of the theme to do what he pleases.
If Ford starting giving away its cars and Mr Doohickey made a doohickey that fitted the Ford plug-socket, would you be happy with a situation where Mr D was forced to release his product under a GPL?
And why exactly has it taken WPress so long (the two years plus that Thesis has been around) to get excited about this?
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Kevin Gilbert Reply:
August 17th, 2010 at 9:38 pm
@David WordPress/Automattic/Matt was not insisting that Thesis be free. The GPL doesn’t require anything to be “free”.
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David Bennett Reply:
August 20th, 2010 at 4:47 am
You can understand that I mean ‘free’ as in that the buyer must allow his creation to be redistributed for free.
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