July 14th, 2010

Tags: matt mullenweg, Thesis, WordPress, wordpress themes

Responses

Comments

Paul Hastings (3 comments.) says:

7/15/2010 at 12:14 am

Wow, and just when I felt secure about life…
zota says:

7/15/2010 at 12:47 am

If Thesis is free to ignore the license for WordPress, then I guess everyone else is free to ignore the license for Thesis, right? I mean, what’s the Thesis guy gunna do — sue?
Rarst (12 comments.) says:

7/15/2010 at 1:29 am

>because Thesis cannot exist without WordPress

As for me this is easily argument against it being derivative. If Thesis could exist without WP and incorporated its code – it would clearly be derivative work. It can’t exist and it doesn’t incorporate. Thus being dependent product, but not derivative.

My take – usage of API (that is explicitly provided to refute need of making changes or incorporating code) doesn’t establish derivative relationship. I don’t see GPL clause that says otherwise (personal interpretations are not same thing as license stating that clearly), there were no directly related legal case that says otherwise (to my knowledge).
Chris Howard (4 comments.) says:

7/15/2010 at 1:52 am

I’m on Thesis’s side.

They could easily exist without WordPress. They are simply an add-on for WordPress. They could, with a little effort by Chris, exist for any CMS.

To say it’s a derivative is the same as saying Photoshop is a derivative of Windows. Pfft!

The CMS that Chris chose is irrelevant.

WordPress is the canvas. Thesis is the paint. The canvas maker can’t dictate to the paint maker how it charges – even if it has a clause in its licence.

Thesis are not bound by the WordPress licence.

In fact, it is the WordPress client who is.

So, what the WordPress licence is really saying, is a client cannot install and use a non-GPL theme or framework.

That’s a pretty big demand of your client! Imagine Microsoft saying you can’t install any software on Windows that also runs on Apple, for example.
- Rarst (12 comments.) says:
  
  7/15/2010 at 2:45 am
  
  >So, what the WordPress licence is really saying, is a client cannot install and use a non-GPL theme or framework.
  
  WordPress license says nothing close to that. It says that derivative works must be distributed under same license.
  
  Unfortunately derivative work is vague in this case. So people start to pass their own interpretations as license demands. So there is conflict of interpretations (not really conflict with license).
  - Alex (Viper007Bond) (4 comments.) says:
    
    7/15/2010 at 4:46 am
    
    I believe the GPL license in full form clearly defines what a derivative is (it calls them modules). I don’t have a link at the moment though.
  - Chris Cole (1 comments.) says:
    
    7/15/2010 at 2:12 pm
    
    Here’s a link to a nice article about GPL. Scroll down to “GPL and deriviative works”
    http://www.novell.com/coolsolu...../1532.html
quicoto (39 comments.) says:

7/15/2010 at 1:55 am

I do respect the licence the author of the theme want to apply.

But I also think all WordPress themes should be GPL since they are using a free software.

Regards
Andrew @ Blogging Guide (86 comments.) says:

7/15/2010 at 2:32 am

What the license states should be followed.
Riyaz (5 comments.) says:

7/15/2010 at 3:20 am

Something that is built upon an existing software or code should not be licensed in a more restrictive way than the original license. IMO, something that is built upon WordPress should be released with the same or more open license, not a restrictive one. I am not aware on what license Thesis uses though.
- Rarst (12 comments.) says:
  
  7/15/2010 at 3:31 am
  
  WordPres is built on top of PHP which is under less restrictive license.
  - Riyaz (5 comments.) says:
    
    7/15/2010 at 3:47 am
    
    I guess PHP was using GPL untill recently. The newer versions of PHP come with a more open licensing terms.
    - Rarst (12 comments.) says:
      
      7/15/2010 at 4:01 am
      
      Newer being 4 and 5 as I understand. 4 was released in 2000.
      - Riyaz (5 comments.) says:
        
        7/15/2010 at 4:21 am
        
        Agree to your point. I am no expert, just a personal opinion.
        
        As per Matt, GPL has a clause that anything built on a GPL licensed platform must also be under GPL licensing. I am not sure if PHP’s open source license has that clause though.
      - Rarst (12 comments.) says:
        
        7/15/2010 at 4:36 am
        
        @Riyaz
        
        >GPL has a clause that anything built on a GPL licensed platform must also be under GPL licensing
        
        Not in those words at all. GPL states that about derivative works that are being distributed. Problem is – it has vague definition of derivative work in relevance to PHP (non-compiled) code and APIs.
        
        Matt interprets that in his favor, others in their.
    - Andreas Nurbo (9 comments.) says:
      
      7/15/2010 at 4:05 am
      
      PHP version 3 was dual licensed. But they decided to drop it since GPL is more restrictive.
      - Riyaz (5 comments.) says:
        
        7/15/2010 at 5:02 am
        
        Rarst, just glanced through the GNU website. For GPL it says: This License gives no permission to license the work in any other way, but it does not invalidate such permission if you have separately received it. For GPLv2 I could not find similar lines.
        
        ^I have not read the complete terms. So my interpretation may be incorrect.
- Frederick Ding (2 comments.) says:
  
  7/15/2010 at 7:10 pm
  
  The comparison of WordPress to PHP or to Linux is an interesting one, but a difficult one.
  
  Building on PHP is like, in the terms of the GPLv3 (which WordPress is unfortunately NOT under):
  
  “The “Corresponding Source” for a work in object code form means all the source code needed to generate, install, and (for an executable work) run the object code and to modify the work, including scripts to control those activities. However, it does not include the work’s System Libraries, or general-purpose tools or generally available free programs which are used unmodified in performing those activities but which are not part of the work.
  
  So PHP, like the Linux kernel, is a system library. Part of the definition of a system library includes:
  
  … a major essential component (kernel, window system, and so on) of the specific operating system … on which the executable work runs, or a compiler used to produce the work, or an object code interpreter used to run it.
  
  WordPress isn’t an interpreter or a compiler or an operating system, so it’s different from PHP and Linux.
Ruxton (3 comments.) says:

7/15/2010 at 3:51 am

grey area, grey ground. sue him and find out where you stand.
Matt Oakes (1 comments.) says:

7/15/2010 at 4:33 am

“Matt is not wrong here, because Thesis cannot exist without WordPress and it extensively uses a lot of code from the WordPress core, for example actions, hooks and more.”

Does that mean that any linux program which makes use of the core linux functions must also be distributed under GPL? I can tell you this is not the case, and I’m sure my lawyers have looked at this that specifically at the wordpress case.
- Rarst (12 comments.) says:
  
  7/15/2010 at 7:52 am
  
  Linux has extra clause/clarification that says that accessing API is normal use of kernel and is not derivative.
  
  Matt position on this is that WP extension is more like kernel module (derivative) rather than program (not derivative).
  
  Again as for me distinction is pretty much line in the sand. There is a line where level of integration passes that of API usage and becomes a derivative, but everyone seems to draw line as they see fit.
Peter Murphy (1 comments.) says:

7/15/2010 at 6:44 am

if the theme/software builds on the original, and offers more than the original software, is it wrong to sell it, for the man hours of development value?
RonD says:

7/15/2010 at 8:53 am

Defining derivative and/or “builds on” is the challenge here. In the most limited view of copyright protection, Thesis would fall under the restriction if it directly incorporated code from the WordPress software build. Since the status in this case would be pretty clear and the present situation seems anything but clear, I assume this is not the case.

Instead the issue appears to fall into the less much clear area of utilizing the APIs within WordPress to provide an add-on that extends the system but does not incorporate any of the copyrighted code. In essence, this makes the protocol of API interface the copyrighted property, restricting other vendors from using that interface. In this way, the owner of one product (WordPress) is attempting to use that ownership to restrict the market for other, add-on products.

This would seem to be most similar to the video games cases, where courts have held that a copyright holder in the game console cannot block extensions (or even reverse engineering) by parties selling games or customizations in order to restrict how a valid owner chooses to use the work that he or she owns.

In this case, no reverse engineering was required since the code is openly available. Moreover, given the role that potential harm plays in deciding whether protection will apply, it would be hard to make the case that the owners of the WordPress copyright will be unjustly harmed by the availability of themes that do not use a GPL license.
Fred Wu (1 comments.) says:

7/15/2010 at 9:16 am

My personal opinion on this matter: http://fuckgpl.com/
Tilly Walker (1 comments.) says:

7/15/2010 at 9:56 am

Easy solution – take Thesis off WordPress if it’s a premium stand alone product. WordPress can exist without Thesis – can Thesis exist without WordPress? The one designer who has a saavy business model is The Theme Foundry – basis theme is free, but to access his forum costs money. That is fair and very smart.
Milan (17 comments.) says:

7/15/2010 at 1:11 pm

I use Thesis, because I want my site to look good and I am not a web designer. I am willing to pay, in order for it to look professional.

The beauty of blogging is that you can write about what you know, with little obligation for technical expertise. I appreciate what Pearson is doing, because of that, but it seems a stretch to say he is super important to WordPress generally. He makes a great theme, but that is rather secondary to making the core software itself.

Also, I am seeing more and more sites using Thesis, which makes it seem less distinctive. Before long, I am probably going to have to roll up my sleeves and learn some CSS, if I want to have a site that looks both attractive and distinctive.

On the matter of the legal issue, I hope Pearson is not violating the GPL and, if he is, he finds a way to stop doing so without undermining the good work both he and the WordPress community have been doing.
- Rick Anderson (3 comments.) says:
  
  7/15/2010 at 6:10 pm
  
  I don’t care about the licensing issues. Both WordPress and Thesis are tools I use to do my job. My interest is that they both grow, thrive and continue to innovate.
  
  I pay for and consume WordPress.com services and I was happy to pay for Thesis and Wishlist Member, S3FlowShield and WP eCommerce because they add value to WordPress. These premium programs bring value to the table that is not otherwise available. I’m glad those folks make money selling their work because I need what they are selling.
  
  I hope they all can peacefully coexist because my business model requires them. My experience with WordPress would be much poorer without these other fee based tools.
  
  In my opinion, it’s the wrangling that is bad for the community.
  - Martin (20 comments.) says:
    
    7/20/2010 at 11:07 am
    
    Great comment Rick Anderson and I couldn’t agree more.
Chris Cree (1 comments.) says:

7/15/2010 at 2:06 pm

Some of y’all are confusing the free nature of GPL distribution with “free of cost.” They are not the same thing. At all.

There is nothing wrong with charging whatever the market will bear for GPL software. However once the GPL software is purchased, the seller can’t restrict how the buyer can use/distribute it.

The issue in dispute is not that Thesis charges, but rather what the end user is allowed to do once they buy Thesis.
Michael Lockyear (2 comments.) says:

7/15/2010 at 2:10 pm

This is only a problem if the Thesis developer is actually including WordPress code in his product. Making function calls, using an API, etc is not the same as actually including code (some may argue otherwise). Even if some code has been included, Pearson may be able to defend it as fair use.

According to the GNU site, ““Fair use” is use that is allowed without any special permission. Since you don’t need the developers’ permission for such use, you can do it regardless of what the developers said about it—in the license or elsewhere, whether that license be the GNU GPL or any other free software license.”

[ http://www.gnu.org/licenses/gp.....GPLFairUse ]
Elliott Back (1 comments.) says:

7/15/2010 at 6:11 pm

I’ve stated my opinion before (here @ WP Themes are GPL Code). Themes link deeply to WordPress, therefore they are all in the purvey of the GPL.
Frederick Ding (2 comments.) says:

7/15/2010 at 7:11 pm

I wrote a looonnggg post (actually, two) about this on my blog, discussing both the controversy about themes = derivatives as well as the copied code.
RG (12 comments.) says:

7/15/2010 at 8:55 pm

WordPress’ own plug-in section has a commercial themes section and the text or explanation there is confusing and it is therefore partially WordPress’ own fault for not being as clear as PHP, Linux core and other similar licenses. Look what it says there:

“While our directory is full of fantastic themes, sometimes people want to use something that they know has support behind it, and don’t mind paying for that. Contrary to popular belief, GPL doesn’t say that everything must be zero-cost, just that when you receive the software or theme that it not restrict your freedoms in how you use it.”

Has the Thesis owner taken action against anybody who exercised his “freedom” to use the Thesis theme how he/she likes? If yes then WordPress has a case if no what’s the whole point of this?
- Jeff Chandler (171 comments.) says:
  
  7/17/2010 at 7:29 am
  
  Chris has been known in the past to be pretty upset with people creating themes or derivatives of thesis – http://www.wptavern.com/how-to-screw-up-your-image
  
  Funny how that works.
  - RG (12 comments.) says:
    
    7/17/2010 at 11:08 am
    
    Frankly only a scared/uninformed host and a rash Google would comply with that kind of cease and desist against BlogGigs. BlogGigs could have done the same anyway without mentioning the Thesis name. It’s not like some Themes don’t look so much the same in the first place, unless Chris is spending time on sites using ‘view page source’. By the way the weblogtools article (When Your Blog Gets Slogged, It’s More Than GPL.. Right?) makes a good point about this issue.
tomi (1 comments.) says:

7/17/2010 at 3:50 am

i agree with matt. thesis use core wordpress.
anyone can use wordpress for free but thesis themes we must buy it with a high price
Tony Cosentino (1 comments.) says:

7/18/2010 at 8:32 am

My position is that I really hope that Matt and Chris can work this out,

I can see such a great collaboration in the future if the issue is resolved peacefully which I still think is achievable. I know how quickly things and deescalate once a few small steps towards an agreement can be made.

Both people are passionate about WordPress and excellent at writing code and I want both of them to be part of WordPress for a long time to come because we need passionate talented people to remain the market leader.

As a side-note I think Posterous is rubbing their hands with glee right now as this internal feuding is only helping their latest attempt to shift WordPress users to their platform with the new WordPress importer tool they recently released.

Peace, out

kind regards
Tony
Harsh Agrawal (1 comments.) says:

7/18/2010 at 6:10 pm

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.
roger (1 comments.) says:

7/20/2010 at 3:14 pm

It is quite hard for me to take a side here. For me, would be nice if somebody makes some money with work derived from mine, but also would expect some respect (in the form of donations). But of course, I wouldnt put a gun in his head for that. Unfortunately, to make money by selling it, the product cant be GPL. Maybe Matt has his point here, but he must consider that it better to have good themes, commercial or not, than no having themes at all.
Jenny (4 comments.) says:

7/22/2010 at 12:50 pm

personally i think they should both get over it. why did it come up now after all this time? i think they’re just trying to get some attention.
Jacki says:

7/24/2010 at 4:35 am

Hmmm well I’m unsure what I think about the issue here, I would want to give it a great deal more research and thought before I commented. I sure hope it can be sorted out because the confusion and debate seems to have been going on for a long time now.

However, having popped over to the blogigs site linked somewhere in the comments – and read Pearson’s over the top reaction to that tribute theme (Thesis-like) I am disgusted with Pearson, regarless of whether he’s right or wrong about GPL. He was NOT right to behave like that.

The person who made that theme clearly adores Thesis and it’s creator and is an easy target as he seems to be a very nice person. Unlike Pearson, who I admired until I saw that comment but has shown a very ugly side of himself. What arrogance and egotism led him into behaving in such a rude and bullying manner? Just who do you think you are Chris??? There were a million better ways to deal with your concerns in this situation.

I won’t be supporting or promoting Thesis any more that’s for sure. I am really quite stunned by that response. Pull your head in Chris before you undo all of your good name.
jeff@ (1 comments.) says:

7/27/2010 at 12:35 pm

i agree with matt. thesis use core wordpress.
anyone can use wordpress for free but thesis themes we must buy it with a high price
Destination Infinity (7 comments.) says:

1/1/2011 at 10:14 pm

I think everything should be open. Not just Thesis.

Destination Infinity