« Read how it all started in Part 1.
Synopsis
While the initial controversy about the Thesis-not-being-under-GPL issue was focused on themes and derivative works, an unclear area that probably needs to be resolved in court, it seems there is a far sounder reason why Thesis has to be released under the GPL: it blatantly copies WordPress code.
It all started with this tweet by Andy Peatling (@apeatling):
Not a clear GPL violation, because it’s extending WordPress classes, which, in effect, copies WordPress functionality into Thesis.
Code analyses
Andrew Nacin (@nacin) started going through the code of Thesis and started to make some encouraging/discouraging tweets:
I just found a line of code I wrote for #WordPress, but in #thesiswp. Funny, when I wrote it, it was under the GPL. #
And then, an initially uncorroborated claim:
This is really pissing me off. I’m up to a few hundred lines directly lifted from WP. A part of me is crushed. #thesiswp #
And then Drew Blas (@drewblas) did an automated analysis (like I suggested 
) and found clear evidence of copied WordPress code:
Clear evidence of GPL code in Thesis
Impact
At this point, it seems clear: Thesis isn’t merely building on top of WordPress, it literally incorporates WordPress code through copy-paste.
That makes Chris Pearson liable to fulfill his obligations under the GPL and distribute GPL derivatives under the GPL.
Most damning
Andrew Nacin eventually found this in Thesis:
* This function is mostly copy pasta from WP (wp-includes/media.php), * but with minor alteration to play more nicely with our styling.
GPL test case? YES.
Chris Pearson indicated during his interview that he is fundamentally opposed to the GPL and will absolutely refuse to license Thesis under the GPL. By the end of the dialogue, he was practically saying “sue me”.
Matt Mullenweg responded:
Matt: Are you saying you want to be a test case for the GPL? You want us to sue you? I mean, that would break my heart. I’d rather you be part of the family.
While the themes = derivatives basis might have been shaky for a legal trial, I think the fact that there’s copied code clearly indicates one outcome in the end, in favour of the GPL.
Temporarily back to the case for themes = derivatives
WordPress isn’t the first community to issue the directive that extensions (themes, plugins) are derivatives. Joomla! did so a few years ago (I recall because I used Joomla! before finding WordPress) and Drupal makes it extremely clear.
If this matter can’t be determined by the GPL’s applicability to themes/plugins, maybe WordPress should just re-license, starting with a future version, with GPLv3 and add a specific requirement that themes/plugins are licensed under GPL.
Twitter erupted into argument last night in a fairly important battle for open source, the GPL, and WordPress. At the centre of the issue is a theme framework called Thesis which plugs into WordPress, sold with a restrictive license that does not permit redistribution.
Background
To provide some background, WordPress is a blogging platform licensed under the GPLv2, which specifically forces all copies of a work licensed under GPL, as well as derivative works, to be licensed under the GPL:
2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:
b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
The Free Software Foundation explicitly addresses plugins in its FAQ, making it clear that plugins that share data structures with the main program and make function calls to each other are derivative works to which the GPL also applies.
Themes were an uncertain matter prior to last year’s legal opinion from the Software Freedom Law Center, because these works from third parties certainly build on top of the WordPress platform, but often extend it with original artwork and programming. The analysis states clearly that:
… it is our opinion that the themes … contain elements that are derivative works of the WordPress software as well as elements that are potentially separate works. Specifically, the CSS files and material contained in the images directory of the “default” theme are works separate from the WordPress code. On the other hand, the PHP and HTML code that is intermingled with and operated on by PHP the code derives from the WordPress code.
Though almost all of the other theme foundries have adopted the GPL license for their PHP code, Chris Pearson stands nearly alone in asserting the GPL’s viral clause is inapplicable to him.
Initial controversy
On a live webcast with both Chris Pearson, the developer of Thesis, and Matt Mullenweg, the founder of Automattic and the WordPress project, Chris expressed his personal belief that the viral nature of the GPL goes against his personal freedoms and rights as a developer:
Chris: One, it would require me to make a concession about something that I don’t think that I need to concede to. Why should I change? I’m protected right now. My work is protected, which it should naturally be. I want to retain that right. If I go GPL then I am ceding that right. The number one issue for me is the personal concession that I would be making. Not of any real impact to my business. I don’t want to make that personal concession, because I don’t have to. Okay?
Note: it is possible, in terms of the GPL’s legality, that Chris never had the right to prevent users from redistributing his code; if the GPL applies, a developer cannot restrict redistribution.
Matt, on the other hand, debates to defend the applicability of the GPL to themes and plugins:
Matt: … If you build a module for Drupal or a module for WordPress or a theme for WordPress or anything like that, the license says that you do have to follow the GPL. I think that it’s just a matter of choosing the platform. If you disagree with the GPL, just use a platform that doesn’t have the GPL.
I listened to all of the long back-and-forth encounter, which was interesting until Chris began to assert his importance in the community:
Chris: I’ve done great things with WordPress since 2006. I have been arguably one of the top three most important figures in the history of WordPress. You, Mark Jaquith, and myself, are the three people that I am talking about.
Wait, what? A developer whose theme accounts for such a small fraction of WordPress’s usage puts himself in the top three figures in WordPress history? Jane Wells had a similar encounter with his ego.
» See the top 10 figures in WordPress history.
Analysis of this part of the controversy
The crux of the controversy is summarized by Chris’s sentences here:
Chris: I think the license, the GPL, is at odds with how I want to distribute my software and what I want it to be. I don’t think that it necessarily should inherit WordPress’ license when over 99% of the code within Thesis is Thesis code based on the actual process of building a website.
As someone who also contributes to open source software, I can certainly understand his sentiments on the ‘infectious’ nature of the GPL, which forces derivatives to inherit the GPL. It’s pretty hard to release projects under even more permissive licenses (for example, the Apache License), or in Chris’s case, extremely restrictive proprietary licenses, when so many open source projects enforce the GPL.
That really is, though, the purpose of the GPL: to keep open source open by prohibiting its inclusion in fully closed-source or proprietary (and restrictively-distributed) projects.
Are themes derivative works?
A lot of the open source advocates and lawyers seem to think so. After all, themes do things like:
<?php if ( get_comment_pages_count() > 1 && get_option( ‘page_comments’ ) ) : // Are there comments to navigate through? ?>
and
<?php if ( $wp_query->max_num_pages > 1 ) : ?>
which show clear integration with WordPress core functionality, much like a program in C would use the MySQL library with
mysql_real_connect()
Granted, the MySQL developers explicitly allow derivatives to use non-GPL licenses even though MySQL is GPL, through an additional license exception. The reason such an exception is necessary is that they understood that works which link to library code are derivatives.
The biggest problem is that the GPL was written with compiled code in mind, where derivatives would have to bundle the libraries (e.g. DLLs or SOs) in their releases. It’s sort of unclear for interpreted languages like PHP; is it an indication of derivation if one piece of code makes a function call to another?
It’s a bit unfortunate WordPress wasn’t licensed under GPLv3, because version 3 is much clearer about what it means to make a “modified version” or a work “based on” another work. It would also make for a better court case.
Caleb Jenkins (@CalebJenkins) iterates an interesting point: dependent != derivative. While I can see this being an interesting legal argument, it would have a lot of implications for open source in general, completely contrary to the way things have been operating.
If using a dependency is not being a derivative of that work, then it is conceivable that one can produce a C application which links to a GPL library (for example, the FOSS-licensed version of the MySQL client library) without bundling it and is released commercially under a closed-source, restrictive license. It is conceivable that a PHP program might require() WordPress to use its functionality, but simply not bundle WordPress, and would then avoid classification as a derivative.
I’m afraid I can’t entirely lend my support to that argument.
People have argued that making function calls to WordPress is akin to making system calls to the underlying operating system. Unfortunately, only GPLv3 is clear about distinguishing the system and compiler libraries from other general code; of course it doesn’t make sense that every application on the GPL Linux kernel must be open source. It’s a valid argument.
However, I agree more completely with Matt’s contention that a dependency = derivation when it gets to the point that a WordPress theme without WordPress will not work (just try loading any theme’s index.php in a browser) while WordPress without any themes will still function — it won’t show anything, but its backend is still fully functional.
Chris Pearson is wrong when he says “I think that what I’ve done stands alone outside of WordPress completely.” Interestingly, read the context of this quote:
Chris: How is that? I think that what I’ve done stands alone outside of WordPress completely. Why should I respect that? It’s not that I don’t respect WordPress. I do. I only build on WordPress and push people in its direction…
» Now here: Part 2 of Tracking the #thesiswp matter.
» Also read: Why WordPress Themes are Derivative of WordPress by Mark Jaquith (@markjaquith), a lead developer.
I sincerely apologize for the lack of Office 2010 posts, which started with Part 1 and Part 2.
I’ve gotten to use it a lot more in the course of daily business, which has opened my eyes to some astounding features.
In any case, I’ve been very busy and will continue to be busy until next week, which is when I plan on publishing Part 3.
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Awesome! WordPress has just released the release candidate of WordPress 2.8, which seems to contain an awesome amount of improvements over WordPress 2.7 (most of them subtle and unexposed to the end user). I’ve been running the trunk version of WordPress for months now, and I have to say that WordPress 2.8 is stable and usable.
If you want to stay up-to-date with WordPress, you can try running it from SVN. I’ll post a little guide on how I do it soon.
What do we hope to see in 2009? I mean this both personally, and in reference to our society as a whole. Continue reading »
In this post, I am going to talk first about technological expectations, then some of the other societal changes that I expect, followed by a more personal section.
M.W. recently suggested to me that writing down the things for which I am grateful will lead to some sense of happiness. I’m willing to try this out, because there is a sound psychological basis for doing so; this activity forces a person to realize all of the positive things that exist in the world around them.
I also realize that, perhaps you aren’t particularly interested in my personal life (although I’d point out that that is what many blogs focus on). I will return to posting other interesting things since I have nearly exhausted this topic.
It wouldn’t be too convenient to make a new blog post every day or even every week for this topic, so I’m going to place some of them on Twitter. Follow me on Twitter (http://twitter.com/frederickding) or check this blog (since my Twitter updates are automatically re-posted here daily).
My three-item list for today (November 14, 2008):
- a warm, safe, and hospitable home
- an intelligent and thoughtful mind
- friends who care
I really wouldn’t mind if you decided to share a few of the things for which you are grateful, either by commenting here or by signing up for Twitter and letting me know about you.
ADDENDUM: of course some things will need to be kept private. But even the private things will be posted, except under lock and key.
ADDENDUM 2: here are my lists for November 15 and 16:
- life
- liberty
- health
- friends who are smart
- a Macbook Pro
- friends who care too much
There’s a good reason that I like free stuff and you should, too.
One of the amazing things that the Internet has led to is the ease of publishing to the World Wide Web. No longer do you have to be a large media outlet to get the word out and to publish content.
Blogging has capitalized on this freedom on the Internet, allowing (literally) hundreds of millions of people to create their individual online presences. That’s why there’s so much content that can be accessed, and one of the reasons why Google has billions of pages in its index.
Does it cost you a cent to read a blog?
I think it’s an interesting question. Sure, you (probably) have to pay a monthly fee to get your Internet access, but you’re usually not charged by the blogger to read his or her content. In other words, posts on blogs are valuable content given away for free.
There are many free services like WordPress.com, Blogger, and even my own PersonalLog which let you easily get your site on the Web. That means that a good portion of those “hundreds of millions of people” don’t have to pay anything to get their site on the Web.
Of course, those free services aren’t without costs to operate; they need some sort of return on their investment on the infrastructure to keep the service going. That’s exactly why WordPress.com offers upgrades (eg. CSS customization, domain names, storage upgrades, etc).
In other words, it doesn’t cost you or the blogger to read a blog that is hosted for free by these services.
Then let’s take a look at people who need to pay for shared hosting or those who have dedicated servers to run their blogs. This blog, for instance, depends on paid hosting.
Most of the blogs like Frederick’s Timelog don’t charge the end-users to read or access their content.
Most of us need to support our hosting, too; that’s why we often need advertisers and sponsors to keep the blogs on the Web.
In other words, it doesn’t cost you to read a blog that needs paid hosting, and the cost incurred by offering this FREE content to you is recovered through a third party – the advertiser.
Blogging is an amazing way of getting content on the Web and also a great way for ordinary non-bloggers to read free content. The non-bloggers are getting the content without having to pay the bloggers, even though they’re driving up costs. The bloggers act as an intermediary between the cost-incurring readers (you) and the cost-paying advertisers.
The advertisers aren’t just losing their money for no reason, though; they either promote their image or entice you to take action (ie. sign up or purchase something).
Thus, in this case, free stuff (or what appears to be “free”) is good for all parties.
