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Impending Legal Precedent for GPL Licensing?

If you pay attention to the WordPress world, you might be aware that a landmark lawsuit is likely to be filed. I say landmark expecting that both sides will litigate and not settle – something that is desperately needed in the United States to validate and uphold the scope of the GPL license.

WordPress is a free software that is licensed under GPLv2 – a license that was created in 1991 to protect the ability of developers and users to gain access to software, create derivative works and distribute the copyrighted code in its entirety under the same protective license.

One of the tenants of the GPL that is argued prolifically is that derivative works are works that “link” into other works via APIs and dependencies (such as library dependencies). According to the argument, software that is considered a derivative work must retain the same licensing as the GPL’d work that it links into.

There are many legal (and non-legal) minds who would like to interpret this license in a variety of ways. There have been notable legal cases around the GPL in the United States, but all (to the best of my knowledge) have settled prior to litigation. One of these cases, Progress Software v MySQL AB, revolved around a product called Nusphere that was bundled with MySQL but was proprietary and incompatible with the GPL. The judge refused to grant summary judgement and eventually MySQL simply did not bundle the proprietary software.

Another case avoided judicial decision – and thus avoided judicial precedence. That case, Free Software Foundation v. Cisco, was settled out of court with a donation from Cisco and a pledge of commitment to the GPL.

Today, a major incident happened that has been brewing for years now. Due to an unfortunate incident which involved source code for the popular Thesis theme for WordPress (from DIYThemes) becoming compromised by a hacker, tempers started boiling over. Matt Mullenweg, founder of WordPress and the public face of )Automattic, the largest company behind the WordPress project, ended up on a live interview alongside Chris Pearson of DIYThemes.

Matt suggests (I think accurately) that a theme that is provided for WordPress (it does not work without WordPress) is a derivative work and requires GPL compatibility. He also suggests (accurately, I think) that GPL compliance would only enhance DIYTheme’s business as evidenced by countless other proprietary software providers who have gone open source.

Not to mention that a license does insinuate adherence to legal requirements provided by the license. If you don’t agree to the terms of the license, you’re not permitted to use the software. Makes sense.

Chris’ defense is that Thesis is completely independent of WordPress (which I question the rationality of since the software cannot exist absent of WordPress). He believes he has a business and economic right to maintain a license that is at odds with WordPress’ GPL license.

So my editorial question is… compliance with the WordPress GPL license is optional but compliance with the Thesis license is not? Hmmm.

Matt, in so many words, has already indicated that there will be a lawsuit that comes out of this. This could be landmark as, if the suit were not settled, it could define the parameters of open source software creation, usage and distribution reaching into every aspect of our life. Who uses Firefox? Yeah… depending on the outcome, that could be affected.

In a perfect world, the two sides reach an amicable solution. Thesis is popular, but it is not the only game in town. However, the second best solution is a legal precedent governing GPL software.

So we stand by and wait.

Image by Joe Gratz

Published by

Aaron Brazell

Aaron Brazell is a Baltimore, MD-based WordPress developer, a co-founder at WP Engine, WordPress core contributor and author. He wrote the book WordPress Bible and has been publishing on the web since 2000. You can follow him on Twitter, on his personal blog and view his photography at The Aperture Filter.

18 thoughts on “Impending Legal Precedent for GPL Licensing?”

  1. I remember a similar conversation happening during a session at WordCamp NYC. It boiled down to the person that made money off of non-GPL themes (it may have been Chris) saying “but I don’t wanna!”

    1. Excellent point. Though I imagine a ruling on GPL would at least marginally affect other open source licenses as well.

  2. See also my comments over on Mitch Canter’s blog on this topic.

    I’ll repeat the relevant FAQ section here:

    What is the difference between “mere aggregation” and “combining two modules into one program”?
    Mere aggregation of two programs means putting them side by side on the same CD-ROM or hard disk. We use this term in the case where they are separate programs, not parts of a single program. In this case, if one of the programs is covered by the GPL, it has no effect on the other program.
    Combining two modules means connecting them together so that they form a single larger program. If either part is covered by the GPL, the whole combination must also be released under the GPL—if you can’t, or won’t, do that, you may not combine them.
    What constitutes combining two parts into one program? This is a legal question, which ultimately judges will decide. We believe that a proper criterion depends both on the mechanism of communication (exec, pipes, rpc, function calls within a shared address space, etc.) and the semantics of the communication (what kinds of information are interchanged).
    If the modules are included in the same executable file, they are definitely combined in one program. If modules are designed to run linked together in a shared address space, that almost surely means combining them into one program.
    By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs. So when they are used for communication, the modules normally are separate programs. But if the semantics of the communication are intimate enough, exchanging complex internal data structures, that too could be a basis to consider the two parts as combined into a larger program.

    I think the phrase “derivative work” is loaded, legally speaking. I think what we are really looking at are the GPL’s notions of a “combined work”. This isn’t exactly explicitly spelled out in the actual wording of the GPL itself, however. The FAQ entry spells it out a little more clearly, but it remains to be seen whether that will matter under a judge’s eye.

    1. One point that I’ve heard from a number of lawyers now…

      The GPL FAQ is *not* part of the license and cannot and should not be treated as such. No one has agreed to the FAQ and since it’s not under version control, it can change by whoever and whenever without notice or review.

      In short, the FAQ is decorative and can serve on as a “well, this is what people think”… but since it’s so hotly contested and debated, that isn’t even much of an argument.

  3. Have you looked at how the nVidia video-driver kernel modules are structured? The Linux kernel itself is under the GPL but the modules are propriety. (Note that there are also nv-kernel modules which are GPL)

    1. Yeah, those are called “binary blobs” and their existence is pretty contentious in some circles. Some distributions won’t include those extensions at all and Debian proper keeps them packaged separately in non-free repositories, however, most BSD and Linux distros will accept them because the benefits outweigh the disadvantages. Oftentimes, companies (like NVIDIA) will provide some documentation for the schematic of the driver code but not all of it, as it either contains what they consider to be their own valuable competitive IP or it has other issues associated with it.

      The FSF is actually quite against binary blobs but the kernel maintainers are not. and they choose to accept blobs into the mainline tree. Distributions can choose to include the blobs or not.

  4. Well, I’ve been saying for years that the only way this was going to get settled was in court. I do think that both the MySQL case and the Cisco cases (and every GPL-related case I’ve seen, actually) differ significantly from what would be the argument in this case because in one instance, you are talking about embedded systems, as in the case with Cisco.

    In the other instance, while MySQL is used on the web, it’s written and compiled in C and C++, whereas WordPress and Thesis (the parts relevant to the GPL discussion anyway) are all done in PHP, a scripting language.

    Honestly, I’ve always said that the biggest problem I have with the GPL is that it wasn’t written to deal with web languages. When the GPL v2 was written, Tim Berners Lee had JUST created the first browser and written the spec for HTML. Gopher was still the big standard. PHP didn’t exist. JavaScript didn’t exist. Python and Perl, as they have been expanded and created today, didn’t exist. It was a completely different time.

    With GPL v3, the FSF had the chance to really address web languages, which do act very differently than traditional languages and which are going to be distributed and “run” in very, very different ways. Rather than doing that, they decided to focus on giving TiVo the middle finger and making aspects of the license so unpleasant that the Linux kernel will never be GPL 3 (as long as Torvalds has any say) and many other projects will never embrace it or accept it. The issue of web languages was largely ignored.

    And it’s a shame. It’s a shame because I think that a serious discussion about open source licenses for web-based and scripting languages needs to be created and that the discussion needs to be had. Regardless of who ends up “winning” — this is a discussion that needs to happen.

    I’m not at all convinced that the bitchfight over WordPress will be that case or that it will prompt any larger discussion. However, I do think that people who claim that the GPL is on such solid legal footing may overestimate the situation, especially since we’re talking about a different area of enforcement and a different definition of compilation and distribution.

    Frankly, were I to start some sort of open source project (not that I would), I wouldn’t use the GPL, not because Stallman is a toejam picker, but because I don’t think it’s the appropriate license for web software.

  5. Wait… wasn’t this already addressed in Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.? I fail to see how a WordPress theme is a “derivative work” according to U.S. Copyright law when the Game Genie’s modifications weren’t.

  6. Funny, I raised this point last year in the Thesis forums and was basically told I was crazy. It really is plain as day, if you build on top of WordPress, Your stuff has to be GPL as well. Seems cut and dry. Shame it has to get this crazy over what is supposed to be a community of people looking out for other people.

  7. I’m no techy, but it seems straightforward enough. As its stands now, take Thesis away from WordPress and you still have WordPress. Take WordPress away from Thesis and you have – a shell looking for a host.

    So kinda seems obvious that Thesis should be obligated to be GPL-compliant?

  8. Hi Aaron,
    Isn’t it just amazing how this argument has escalated into the public arena as Matt put it their discussion was an Oprah special.

    There must be more to this than just the GPL licence as it makes no sense as you have laid out the facts in your post that Chris is ignoring one licence but wants his code protected under another.

    I know if I was still using Thesis I would be very concerned about its future when the creator talks to the founder of WordPress with such contempt.

    I still hope there can be a turn around on this current path and Chris and Matt can defuse the situation which is really hurting both brands right now.

    Posterous must be ecstatic than the same week they go after WordPress with their WordPress importer that a fight breaks out withing WordPress.

    My vote is for a peaceful resolution so we can support both Thesis and WordPress.

    kind regards
    Tony

    PS.
    I bought and love your book and use it a lot with my Kindle

  9. There’s also copy & pasted GPL code in Thesis, which negates everything. If he GPLed that and other core WP files but kept the css/js/ and non-wp php files licensed separately that wouldn’t be such a huge issue. To take something that derives itself from WordPress and not GPLing it is pretty blatant.

    Beyond that, it seems Pearson/Thesis hold an unswayable opinion while Matt/WordPress have more facts on their side. At the core, I think a court case would go to WP but a court case wouldn’t be good for WP/Thesis/GPL in general.

    1. I just read on Wikipedia that people have different views of what is derivative work…

      Some believe copy/pasting chunks of code is derivative. On the other hand, if your proprietary software communicates with the other software that is GPL, but uses it’s own proprietary code (and no copy/pasted parts) then it’s not derivative.

      After all, both WP and Thesis use PHP… one could theoretically make Thesis to just work by talking to the MySQL database, without using WP specific functions…

      Thing is, I got quite confused now, because I am in the middle of creating a plugin for WP that I want to charge for (because it’s very specific for only a small group of people with special requirements) and… does it mean I am NOT allowed to charge for it?

      and…?

      Does it mean anyone can re-distribute this plugin for free too?

      Any ideas?

      Mark

  10. Hi there,

    So…

    Is allegedly DIYThemes NOT allow to *sell* their theme (if WP wins the case)?

    In other words…

    Does DIYThemes need to make Thesis available for FREE…?

    And should DIYThemes let other people redistribute Thesis (also modified versions of it) for free and under the GPL license…?

    If so, how is that supposed to help DIYThemes’s business…?

    Not sure this makes sense, but…

    Thanks

    Mark

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