Impending Legal Precedent for GPL Licensing?

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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