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aY WordPress, the GPL and cherries on top

Note: This article was originally published at Planet PHP on 15 July 2010.
Planet PHP

The WordPress community is abuzz with news that the WP Foundation has essentially gone to war with the makers of the Thesis WP theme. The substance of the argument, as I understand it, is that the makers of WordPress claim that themes, since they rely on WP's GPL'ed code to run, must be covered by the GPL as well because they are derivative works. Thesis, on the other hand, is distributed under a commercial license, therefore violating this tenet.

I have, in the past, expressed my dislike for the GPL, which, inevitably, colours my aolegala opinion on the matter-though, I assure you, this post is not about the GPL and I have absolutely no intention on engaging on a debate on the license. Write me or comment on the GPL and I will simply not care-you've been warned.

Legal opinions abound

As always when a legal matter is involved, everyone and their dog is giving an opinion. Matt went and asked the Software Freedom Law Center to officially render theirs, and they came through, true to their name, with a nine-paragraph letter that illustrates how themes are, in fact, derivative works covered the GPL.

Arguments on the other side of the fence typically focus on the fact that themes are not derivative works, or because of the fair-use doctrine1.

Personally, I find the SFLC's argument very weak from a technical standpoint-particularly in the citation of the use of include (which is not a function2) as justification for their claim that themes are derivative works. Includes are designed specifically to create interoperability between different programs-in the world of PHP, where there is no concept of aobinary,a they are the equivalent of dynamic linking.

One would have to physically copy code between projects, or physically include files from another project in a new work, in order to create a derivative work in this context, and to claim that themes do this is simply ridiculous because WordPress is designed to be expanded in precisely the way that themes are developed.ATo impose the GPL on themes-unlike, say, imposing it on a fork of WP itself, which would be perfectly logical-is to restrict a developer's ability to interact with a particular piece of software and this would constitute an artificial limitation on a developer's ability to interact with WordPress, which could give grounds to a fair-use claim.

Obviously, the SFLC probably believes that any form of linking or reliance of a piece of software upon another creates a derivative work, and they may well be right. Larry Rosen of the OSI believes that the determination of what constitutes a derivative work in the context of software should also take into account the element of intent-that is, whether the author of the work in question wrote their software in a specific way because they were aware of and attempted to circumvent the application of a license to derivative works. If he's right, building a theme cannot possibly constitute the creation of a derivative work-again, WordPress is designed to be expanded, and it cannot taint downstream work that is not a direct derivation of itself, much like Linux cannot impose the GPL on commercial drivers or on commercial products built on it3).

Legal opinions are meaningless

Here's the kicker: what I think is meaningless. What Matt thinks is equally meaningless. And what the SFLC means is most meaningless of all.

I am not a lawyer, and neither is Matt. The SFLC, which has an obvious bias towards the enforcement of the GPL4 is made up of lawyers and they, more than anyone else, should have made sure to cover their collective ass and Matt's by explicitly pointing out that there is but one legal opinion that matters: that of a judge and jury.

Unless the WP Foundation ever takes the makers of Thesis to court, therefore, all these aolegal opinionsa have absolutely no legal value whatsoever. They are nothing more than a form of posturing and an exercise in public relations in the world of court opinion, to cite Adlai Stevenson.

And that is what puzzles me, because from a business and strategic perspective, the WP Foundatio

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