Note: I will be discussing this further with Patrick O’Keefe on the Copyright 2.0 Show. You can listen to the live recording here at 6:30 PM ET Wednesday and catch the recorded version on this site Friday.
If you missed the dust up over WordPress, Thesis and the GPL last week, you were probably offline completely.
To make a long story short, WordPress, the popular blogging platform, is released under the GPL, an open source license that requires all derivative works to be licensed under the same terms.
However, Chris Pearson created a theme framework for WordPress called Thesis that he sells but does not license under the GPL. Many in the WordPress community, including Automattic founder and CEO Matt Mullenweg,says that this is a violation of the license themes are derivative works of WordPress. Pearson disagrees and the tiff ended with the two threatening to take matters into court.
The recent war of words took place on an audio call on Mixergy and was followed by a Twitter debate between the two. Now the entire WordPress community is debating the issue and, try as I might to stay out of it, I am constantly being barraged with questions.
So, very briefly, I want to talk about these issues and offer my rather scant thoughts on them. I don’t expect to bring any clarity to the issue (one of the reasons I’ve avoided it) but perhaps offer something nonetheless.
Seeing Both Sides
I won’t bother restating both sides of the argument. Mark Jaquith does a great job restating the WordPress/Automattic viewpoint and lawyer Michael Alex Wasylik covers the opposing view on his site. Furthermore, there may be a fair use issue involved in the creation of premium themes and a special code-copying problem for Thesis specifically to further muddy the waters.
What is clear is that the issue as to whether or not Thesis, or any WordPress theme for that matter, should be licensed under the GPL, upon distribution, is becoming much more complex. In 2009, I wrote about this topic for the Blog Herald and largely sided with the Software Freedom Law Center, which said that WordPress Themes are GPL protected but CSS files and images are not as they are separate from WordPress completely.
However, I am less certain about that today than I was a year ago (almost to the day). The reason isn’t because I feel the SFLC’s analysis was flawed but that there are many different potentially valid viewpoints on the issue, without a court weighing in, it is virtually impossible to predict the ruling one would see in such a case.
In short, you’re dealing with a derivative works issue, a notoriously muddy area of copyright to begin with, throwing in relatively new technology that is untested in the courts and raising in fair use arguments to create a near-perfect storm of copyright confusion.
Simply put, if Matt does go forward with his threat to sue Pearson over this issue, I do not envy any judge this case winds up in front of.
Why No One Wins
While there is a very legitimate legal issue at hand here, as Ryan Hellyer from WPTavern put it succinctly, “whether direct function calls are considered to cause a violation of the GPL license or not,” it seems that the battle lines are drawn less on legal grounds and more on philosophical ones.
This isn’t a surprise, open source and the GPL in particular are deeply philosophical things for many, part of a view on technology and even life that goes beyond software. It is widely seen that what Pearson is doing is an attack on that philosophy as much as it is an an attempt to exploit WordPress for his own gain. Pearson and his supporters view the actions of Mullenweg and his supporters as an attempt to tell him what he can do with his own code and how to run his business.
But while these philosophical issues are important, they are causing a tremendous divide in the WordPress community, especially among those who develop for it. Resources, time and energy are being spent on this debate and, if it continues, it will inevitably result in some talented developers leaving the community.
In short, this war is like all other wars in that, no matter who “wins” there are no “winners”. It may be necessary and, at this point, probably is but war rarely makes ill feelings go away and only causes the living to mourn the casualties.
Unless things die down and blow over, the WordPress community will never be the same and, unfortunately, not changed in good ways. However, we’re likely past that point already and, if this case does go to court, it will certainly be beyond the tipping point.
This makes me sad to say, but it is the truth.
If one were to corner me and demand that I choose sides, which I know someone probably will, I would say I still feel the SFLC analysis is the best available. That being said, there is a great deal of legitimate uncertainty as to whether or not the calling functions constitutes a derivative work and a strong potential fair use argument that casts a shadow over that analysis.
In short, my most honest answer is “I don’t know” and I don’t believe anyone does. We’re all guessing here and legal minds I respect highly have come down on both sides of the issue. Until the courts have ruled (emphasis on “courts” as there will be appeals of any ruling) we really won’t know.
In the meantime, I think it is more important that this issue not rip apart the community and, instead, resolve this as amicably as possible while still working together toward common goals.
It may seem to be impossible, but I think it can be done and it has to be done.