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aY WordPress and the GPL: the day after

Note: This article was originally published at Planet PHP on 19 July 2010.
Planet PHP

Last week, I posted an article that pretty much started with aothis is not about a legal interpretation of the GPL.a Therefore, of course, 80% of the people who commented on the article did so to give me their interpretation of the GPL, or to explain why my interpretation was incorrect. So much for that.

You are not Perry Mason

Let me, once more, explain why the legal interpretation of the GPL has no bearing on the issue at hand before addressing some of the issues that were raised in the comments. The positioning of the GPL with regards to derivative works has not been tested in a court of law. This means that there is no accepted definition of what a derivative work is in this context is simply undefined and can, by some account, lead to, shall we say, aointerestinga conclusions. For this reason, my opinion on this matter, or Matt's, or anyone else's, is entirely meaningless, at least from a legal perspective.

You could say that Matt's opinion counts, because he wrote the software and he should have the right to decide how his software is distributed and under what rules.

I couldn't agree more-except for one minor detail: Matt made his decision when he chose to distribute WordPress under the GPL. From then on, both he and any user of WordPress are bound by the terms of the license, and not by what anyone thinks. Matt doesn't enforce the license: that's for a court of law to do. Therefore, what he thinks at this point only has value, from a legal standpoint, if a competent court determines that the terms of the GPL agree with him.

This, incidentally, is one of the biggest concerns that I have with the GPL. It's a license that enforces a very particular meaning of aofreedoma whose nuances a developer may simply not understand. Case in point: Matt may well believe that themes must be released under the GPL as derivative works, but there is no real case law to back this belief. The FSF says so1, but they are less than intellectually honest by not admitting that they do not have the legal standing to back their claims.

The reason why I say that this is not a legal issue, therefore, is that, unless and until the WPF sues a theme developer on the issue of whether a theme or plugin that doesn't incorporate wholesale code from the main project2 is a derivative work, this is a business issue that can deeply affect the future of WordPress if not handled correctly. Hence my points in the previous article.

One thing that many do not seem to understand that the enforcement of a contract (or a license) is, essentially, a failure of the contract itself. A contract exists so that two parties can have an understanding on how a business relationship should take place. If the contract is sufficiently clear and unequivocal, it should only ever be enforced if one of the parties maliciously and willfully breaches it and then refuses to cure the breach. If it is unclear and equivocal, as is the case here, the enforcement of a contract represents a failure to draft a proper agreement in the first place.

When people play armchair lawyers and give their own interpretation of the legal meaning of the GPL, I can tell immediately that they have never had the unpleasant experience of being involved in a lawsuit. Those who have, on the other hand, know that lawsuits are a very dangerous game whose rules are known only to those in the legal profession-and are, ultimately, in the hands of a referee who is as human as everyone else, and often called upon to render judgment on topics he or she has no real technical expertise to understand, let alone determine. It's like playing a game of soccer in which losing might mean forfeiting your business, house and livelihood, and in which each team can put as many players on the field as their money allows. Oh, and the refs are asked to rate the player's bedroom technique instead of counting the goals.

When most people talk about lawsuits and court cases, they think aoLaw and Ordera or (God forbid) aoBoston Legal,a and truly have no idea of what they are getting themselves into-the long hours, constant uncertainty, ridiculous expenses and inevitably dangerous outcome. In real life, lawyers don't stomp around a courtroom yelling aoyou can't handle the truth!a They drudge endlessly through point after point, doing whatever they can to help their client prevail, often flying in the face of the very things their client has done or agreed to in the past. It's their job and, even though while they

Truncated by Planet PHP, read more at the original (another 7330 bytes)