Matt Mullenweg, Put Up or Shut Up About the GPL

Dear Matt, Put Up or Shut Up About the GPL

by Ben Cook on October 16, 2009

In the WordPress world there’s no quicker and easier way to start a passionate debate than to bring up the issue of the GPL.

For those of you new to the discussion, the GPL is the license under which WordPress is distributed. It states, in part, that you’re free to modify and build on the code of WordPress, and distribute it in any manner you wish.

Premium Theme Controversy

Where the controversy comes in is that the license stipulates that your derivative work inherits the GPL licensing as well.

Where this has become a hot topic for discussion is in regards to “premium” plugins and themes.

Several of the most prominent premium themes such as Thesis or Headway contend their themes do NOT inherit the GPL licensing and have restricted use of their themes accordingly.

Other theme creators such as WooThemes, StudioPress, and others have publicly embraced the GPL and structured their business models accordingly.

The most recent entry into the premium theme market, Rocket Theme, states in their FAQ that they adhere to the standards of the GPL and yet price their themes in a manner which directly contradicts the license, a much more deceptive practice than flat out rejecting the license all together.

In short, the WordPress community tends to be all over the map when it comes to the implications of GPL licensing.

Matt Weighs In

WordPress creator, Matt Mullenweg, has weighed in on this issue several times, going so far in fact to ask a lawyer about the topic.

His position, which is supported by the lawyer and I happen to agree with, is that the PHP of WordPress plugins and themes that are distributed do in fact inherit the GPL licensing regardless of the developers’ wishes. Images and CSS files however, do not necessarily inherit the same licensing.

The problem of course is that some of the framework themes use the PHP to generate the CSS files and use very few if any images. And, as WordPress themes progress, that seems to be the direction more and more themes are heading.

In short, this issue isn’t going away any time soon.

Where the Rubber Meets the Road

The reason this is such a contentious and potentially far-reaching issue is simple…

Money.

If Matt’s interpretation of the GPL is accurate, users would be well within their rights to distribute premium themes at a lower price or even for free if they chose to do so.

Naturally some premium theme developers have been very vocal about their opposition to this interpretation of the GPL. In fact, Thesis developer Chris Pearson and Matt Mullenweg have previously feuded over the issue with the threat of legal action being thrown into the mix.

Just last week Matt published the video embedded below in which he says around the 8 minute mark that premium themes that place limits on users’ rights such as number of installations or footer links are “evil.”

Put Up or Shut Up

Now I don’t know about you, but calling a company evil seems like a pretty strong statement to me. If nothing else it’s evident that Matt feels strongly about the issue.

Unfortunately, he hasn’t bothered to actually DO anything about it.

Instead he’s left users like you and I in the middle to try and interpret the legal language, debate it amongst each other, and contend with the thread of a lawsuit should we decide to embrace the rights he claims we have under the GPL.

So my request to Matt and the rest of the Automattic team is simple. If you honestly believe that WordPress themes inherit the GPL licensing, put your money where your mouth is.

Either distribute the GPL portions of premium themes for all WordPress users to enjoy or file a lawsuit against premium theme companies that don’t adhere to the GPL.

Automattic certainly has deep enough pockets to be able to afford the legal battle that’s likely to ensue. And as the creators of several WordPress based businesses, you have a vested financial interest in seeing the case through.

If you’re unwilling to take either of those steps, then I respectfully ask you to SHUT UP about the issue.

Don’t sit back and take pot shots at “evil” premium theme companies during an interview if you’re not willing to back your statements up with action.

I happen to agree with your stance on the GPL but I find myself unable to defend your attitude of superiority & intimidation towards non-GPL theme developers.

Either put up, or shut up.

It’s that simple.

image source: pedpaula

{ 31 comments… read them below or add one }

Michael VanDeMar October 16, 2009 at 4:25 pm

Wordpress themes are not derivative versions of Wordpress… they will not run as standalone products, and the core Wordpress files do not ship with the themes. They are plugins, that interface with (or “link” to, if you prefer) Wordpress in the same way that other programs use dll’s. If you look at the section of Apache’s license dealing with derivative works, you can see how they spell it out:

“Derivative Works” shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof.

A theme is a skin, something that calls the functions that are built into Wordpress (or in the case of themes that utilize plugin functionality can sometimes override those functions), but is not itself “derived from” Wordpress. Now, if a developer packaged their theme with a copy of Wordpress, or included modified versions of WP’s core files, then of course that would be a different issue. I personally, however, have never seen a theme distributed in that manner.

Ben Cook October 16, 2009 at 4:31 pm

Michael, are you arguing that themes don’t really fall under the GPL?

As I said, the explanation the lawyer gave on the WordPress blog seemed to make a lot of sense to me. Now obviously the fact that Matt asked probably makes it less than unbiased but that’s not really my point.

My point is that Matt & Automattic either need to put their money where their mouth is in regards to the GPL or stop bullying the theme developers.

The fact that this is still an issue is a testament to the fact that they’ve been unwilling to date to actually stand up for the rights of WordPress theme users everywhere.

This should have been settled a long time ago IMO.

Leland October 16, 2009 at 4:40 pm

I’m all for shutting up the GPL discussion once and for all, but I doubt we’ll ever see any [Insert Premium Theme Company Here] vs. Automattic cases any time soon.

The worst that’s going happen to these premium theme companies who ignore the GPL is probably Matt calling them “evil,” and nothing more.

Carl Hancock October 16, 2009 at 4:42 pm

@ Michael VanDeMar

“Wordpress themes are not derivative versions of Wordpress… they will not run as standalone products, and the core Wordpress files do not ship with the themes.”

It isn’t suggested that they are derivative versions of WordPress, it is suggested they are derivative works. The fact that they rely on WordPress, and as you mentioned will not run as standalone products, makes them derivative work.

You used the Apache License to make your point, but WordPress isn’t released under the Apache License and in fact is released under the GPL v2 which is not compatible with the Apache License. So your reference to the Apache License is moot.

Michael VanDeMar October 16, 2009 at 4:49 pm

I am indeed arguing that they are not automatically GPL just because Wordpress is, that is correct.

If I develop a programming language, and release that language under GPL, that in no way means that all programs that are written in that language must then be released under the GPL license. They are not “derivative works” of the language itself, they are unique in their own right and the language was merely used to develop them. In order for Wordpress to be able to utilize a theme then of course that theme needs to use language that Wordpress can interpret… but that doesn’t make them “derivative works” of Wordpress, which is what the lawyer in question based his opinion on.

Ben Cook October 16, 2009 at 4:57 pm

@Leland but are you ok with Matt sitting back and calling the companies evil when he’s not willing to put anything behind it?

I mean sure it’s great that he offers his opinion but as we’ve clearly seen, that doesn’t mean much.

The only way I see this issue being decided is for a court case to set the legal precedence.

I dunno about you, but I certainly can’t afford to pay the legal fees to defend the rights that I believe we have under the GPL if a non-GPL theme developer decided to sue.

Michael VanDeMar October 16, 2009 at 5:12 pm

@Carl Hancock –

The fact that they rely on WordPress, and as you mentioned will not run as standalone products, makes them derivative work.

No, it makes them a plugin or an addon. Themes are not programs in their own right.

Ben Cook October 16, 2009 at 5:28 pm

Michael, again that wasn’t really the point of my post but I think this section of commentary provided by the lawyer describes themes (and plugins for that matter) perfectly:

The PHP elements, taken together, are clearly derivative of WordPress code. The template is loaded via the include() function. Its contents are combined with the WordPress code in memory to be processed by PHP along with (and completely indistinguishable from) the rest of WordPress. The PHP code consists largely of calls to WordPress functions and sparse, minimal logic to control which WordPress functions are accessed and how many times they will be called. They are derivative of WordPress because every part of them is determined by the content of the WordPress functions they call. As works of authorship, they are designed only to be combined with WordPress into a larger work.

The fact of the matter though is that we can probably find a lawyer to argue the other side of it as well. My point is that either Matt or Automattic as a company have done absolutely nothing other than call people/companies names to secure the rights we’re afforded under the GPL.

As I said in the post, if he’s not willing to support his claim with substance, he should just shut up about it.

Greg Boser October 16, 2009 at 5:31 pm

Using the Apache license to argue that a WP theme is not a derivative work is a bit silly because the Apache license clearly defines what a derivative work is, while the GPL does not.

IMO, the clearer definition of the Apache license is much better, and I think that fact will lead to to the future growth of new products like Habari.

While in spirit I agree with the “put up, or shut up” challenge to Matt, the real solution would be for the GPL to be revised in such a way that the question was definitively answered by the license itself. That way, regardless of what side you’re on (and for the record I don’t think a theme should be auto-GPL) the question would be answered. And if GPLv3.5 sided with Matt, then future releases of WP could be released under the new license and all current premium theme developers would either need to comply, or be content with only building themes for older versions of WP.

Of course, we all know that the latter isn’t a viable options because you can’t combine two licenses. Once someone using WP upgraded to a newer version using the latest license , any theme would need to be compliant because the license itself states that themes are a derivative work.

Until something like that happens, the question will only be answered in a civil court. And the answer will be based on who hired an attorney who was the best at spinning tech stuff to a non-tech educated jury.

Ben Cook October 16, 2009 at 5:44 pm

Greg, that’s a great point. I hadn’t considered changing the licensing to more clearly define this very vague area.

I wonder whether that would create legal issues on it’s own or not? I mean if Matt simply added language to clarify the theme/plugin issue to the current license wouldn’t we all have to accept it eventually (as in the next time a hack comes to light and we all need to update)?

I suppose it could splinter the community and inspire people to continue to support the legacy version but how likely is that?

Personally I don’t see why Matt hasn’t run with this option as passionate as he seems to be about the GPL/Premium Theme issue.

Michael VanDeMar October 16, 2009 at 5:49 pm

@Greg –

Actually, Version 2 of the GPL, which is what WP is released under, does spell out derivative works fairly clearly:

The “Program”, below, refers to any such program or work, and a “work based on the Program” means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language.

Again, calling Wordpress’ functions, those that are specifically designed to allow developers to “hook” into Wordpress, is not the same thing as “containing the program or a portion of it”. And you are right, I should have quoted the earlier GPL and not the Apache version in the first place, my bad.

Greg Boser October 16, 2009 at 5:51 pm

I think the only issue (which I’d forgotten about when I originally posted) that would be a problem is the fact that WP was not an original work of Matt’s. It was an abandoned project that was already running under the GPL. And the messed up thing about the GPL is that it seems that you are forever tied to it if your work was built of a prior GPL’ed work.

But the GPL site is encouraging people to upgrade to v3 so I’m not real sure how that would work. Is something originally licensed under v2 forever tied to that version, or can you choose to upgrade your derivative work?

Greg Boser October 16, 2009 at 6:20 pm

Again, calling Wordpress’ functions, those that are specifically designed to allow developers to “hook” into Wordpress, is not the same thing as “containing the program or a portion of it”

But that is what is open to interpretation. From what I can remember B2/cafelog (the original work licensed under GPL2) included a theme. As did all future releases of WP. A theme is required for WP to work, and one could argue that all themes in existence are a derivative work of the original b2/cafelog theme.

As much as I want to support the idea that a theme isn’t a derivative work, I have trouble wrapping my head around the argument that something that WP requires in order to function isn’t “part” of the program.

Dan Thies October 16, 2009 at 6:57 pm

Every software app requires an OS in order to run – are all Linux apps derivative works of Linux? Matt’s position is absurd, and just plain bad for Wordpress.

Ben Cook October 16, 2009 at 9:46 pm

Dan, I think what’s bad for WordPress is the indecision or lack of certainty on the issue. Whichever side of the debate you come down on, I think we can all agree that this is an issue that needs to be resolved.

The only way I see that happening is a court case or as Greg mentioned perhaps a change to the GPL.

Dan Thies October 16, 2009 at 10:19 pm

… and if it’s resolved in a way that means theme developers don’t own their work, a lot of good people will stop doing good work on premium Wordpress themes.

Michael VanDeMar October 16, 2009 at 10:48 pm

@Greg –

As much as I want to support the idea that a theme isn’t a derivative work, I have trouble wrapping my head around the argument that something that WP requires in order to function isn’t “part” of the program.

Theme functionality was introduced into Wordpress after version 1.2.1. At that time, this is how the developers described what a theme was:

So what is a theme?

Theme
A theme is a collection of files that work together to produce a graphical interface with an underlying unifying design for a weblog. A theme modifies the way the weblog is displayed, without modifying the underlying software. Theme files may include image files (*.jpg, *.gif) style sheets (*.css) as well as any necessary code files (*.php).

Essentially, the WordPress theme system is a way to skin your weblog.

That was pulled from a November 2004 version of Wordpress.org’s “Theme Development” page. Does it still sound like, originally, themes were regarded as “part of” the program…?

http://web.archive.org/web/20041126032153/http://codex.wordpress.org/Theme_Development

The first version to support themes, Wordpress 1.22, did not ship with a theme included in the package. The only way to get themes was to download them from someone else other than Wordpress or build them yourselves. You can download 1.22 yourself and verify this:

http://wordpress.org/wordpress-1.2.2.zip

It was only after the concept of building themes became popular, and many many themes had already been built by third parties, that Wordpress decided to ship default themes with their platform as examples of how themes could be built.

They simply are not covered by the GPL of Wordpress. The fact that down the road developers decided to make Wordpress not function without a theme does not actually change that.

Ben Cook October 18, 2009 at 1:24 am

Dan, I think we’ve seen that profitable businesses can be built even under the restrictions of GPL. Most of the premium themes are already available for free so I really don’t think having the debate resolved once and for all would stop many people from working on WordPress Themes.

Marius October 18, 2009 at 5:35 am

I have to agree with both Ben and Michael here. IF Matt and the other Wordpress guys are sincere and believe what they are saying, they should DO something about it.
But I’m leaning towards Michael’s opinion. I don’t know much about PHP and coding, but if a theme doesn’t include parts of Wordpress, or any other GPL product, then it doesn’t have to be GPL. It would be like claiming that a glove should be considered a derivative of a hand, just because one fits over the other.
But again, I have no way of verifying either statement. Or maybe I do. Is it not a derivative if you look at one thing, and how it works, and then create another, separate item that goes with the first? The term “based on” can mean a number of things, and doesn’t have to mean that you’ve copied and pasted parts of Wordpress into your product.

Michael VanDeMar October 18, 2009 at 2:19 pm

@Marius –

Is it not a derivative if you look at one thing, and how it works, and then create another, separate item that goes with the first?

Actually, no. That is not what derive means. What you are describing is an “enhancement”, which is what themes are, not derivatives. Wordpress, for instance, was “derived” from b2/cafelog, the blogging platform that was abandoned. The original core functionality was incorporated into, and then improved upon by, Wordpress. Wordpress is therefore a derivative of b2/cafelog.

A theme, however, could be constructed for multiple blogging platforms, and use the code necessary for each of those platforms to display that theme correctly, and yet still be the exact same theme. They are merely skins, plugins that use code that Wordpress knows how to read and interpret. Wordpress has no more claim over them than Twitter has over the multitude of Twitter-enhancing services that are out there, or that Yahoo has over the websites that use their API in their apps. Yes, Wordpress could have set up specific TOS for using their API (the hooks needed to communicate with the core Wordpress functionality), but the bottom line is that they didn’t.

Ben Cook October 18, 2009 at 3:23 pm

Michael, couldn’t they add to their TOS in order to enforce the GPL onto themes though? I mean if they really want themes to be GPL, it seems like they could make it happen.

Instead Matt just sits back and criticizes companies that are improving the platform.

Streko October 18, 2009 at 9:33 pm

Maybe Matt would have a leg to stand on if he had his programmers focus on fixing security flaws rather then make new shiny ajax crap.

kristarella October 18, 2009 at 11:36 pm

I don’t think the core of the issue is money… in a way everything ends up being about money, but it’s not only their money that proprietary theme developers are trying to protect. Some people share Matt’s view that the GPL protects everyone’s rights as developers, others think that Free/Open Source destroys innovation by struggling to keep up with demand rather than taking the time needed to create something solid and innovative.

What I find interesting is that I read the letter Matt solicited from the lawyer that you linked to, and it seemed like a good argument. However, the letter states outright why themes and plugins are derivatives, and then in the video you’ve embedded in the post and also in a comment on another post Matt states he doesn’t think Thesis is a derivative, but that it should be GPL because it “links”. Linking is a vague terminology not even used in the license itself, but in the GPL FAQ and interpretations of the license.
You might be interested to see Brian Gardner’s response to that, or even read the whole discussion.

I agree with you Ben that there is a level of hostility and antagonism that is not necessary and I get the impression it stems from personality clashes as much or more than it stems from license interpreting issues.

Thanks Michael for the salient points you made in the discussion.

Ariel V. October 19, 2009 at 8:22 am

Why do you guys keep referring to b2 as abandoned software when clearly it’s not? Maybe someone should ask the original authors…

Genuine Chris Johnson October 19, 2009 at 7:37 pm

I think that it’s about money, and I question Ma.TT’s motives. In theory, Thesis, Headway, and their ilk could be made for Drupal or Joomla. WordPress is one thing that it could skin, so WordPress is by no means necessary.

To Position the GPL as anything that “protects” developers is naive. It protects Automatic from competition by forcing people to give up the goods on what’s good.

This means that he can claim ownership on anything that’s built. This gives Matt the advantage that he can claim ownership on all things that people build near WordPress. De Facto ownership of everything that happens anywhere near WP benefits Automatic the folks that ultimately control the code.

In lieu of the little guy keeping rights, it really all aggregates at the top like other socialist enterprises. Matt can seem to be crunchy and earthy. In reality, he’s a borg, assimilating all innovation under the guise of the GPL.

kristarella October 19, 2009 at 8:08 pm

This means that he can claim ownership on anything that’s built. This gives Matt the advantage that he can claim ownership on all things that people build near WordPress. De Facto ownership of everything that happens anywhere near WP benefits Automatic the folks that ultimately control the code.

That is incorrect. The GPL only applies upon distribution. If you distribute “derivatives”, they need to be distributed under a GPL compatible license. However, you are free to make whatever you want with WordPress and keep it private (or closed source); no one can force you to make it available. Doing work for a client doesn’t count as distribution, so contract developers are not subject to the GPL in that way. It is only when developers make their work publicly available via free or paid download that the licensing issue takes place.

Genuine Chris Johnson October 19, 2009 at 8:29 pm

@kristarella

I get the nuance. The difference is this: having a GPL benefits Ma.TT. his argument is self-serving. He maintains the WP code, he can then appropriate features that wind up in the public, all while restricting the behavior of others and playing the side of good.

I myself only started caring when he used words like “evil” in that interview. i dug the guy before that.

Jeffro October 23, 2009 at 1:18 am

@Leland but are you ok with Matt sitting back and calling the companies evil when he’s not willing to put anything behind it?

Are you willing to call Matt and Automattic evil without equally putting anything behind your stance?

Ben Cook October 23, 2009 at 11:06 am

@Jeffro I think Matt or Automattic’s position to bring about their desired changes is slightly different than mine. In fact I’d argue publishing & promoting this post are putting my stance out there in the public. Not sure what else you’d suggest I do.

Jeffro October 23, 2009 at 12:45 pm

In this interview, I never once heard Matt directly say that Thesis was evil. He did say themes that restrict user rights such as redistribution were generally evil. In fact, for everyone elses sake here is what he actually said.

There are some folks who are doing this under the GPL and there are some folks who are doing this under a proprietary license that restrict your freedoms and are generally evil.

I know thesis was mentioned somewhere in this interview but I can’t find it. At any rate, Thesis and Headway are good examples of themes that don’t give two craps about the software they have been built on top of. Matt has a point in that, why place restrictions on users from your theme or plugin when the software it’s built on top of does not have those restrictions. By the way, since themes can be dual licensed where the PHP code is GPL but everything else is not, I’m fine with those themes even though those are not being added to the wordpress.org repository.

As for the request of Automattic to take people to court, how stupid is that. Automattic is backed by venture capital money in the hopes of running a successful business that will pay them back and make a profit. They make money through services and addons and is a privately held company. WordPress.org is a separate, non-profit foundation that stands on its own but benefits from the resources that Automattic can provide. Instead, you should be requesting that the non profit foundation secure enough funds together probably through the likes of theme developers who take an interest in this and then see if they can push a court case forward with those funds.

I don’t develop themes so my life and business does not depend on them but as an end user, I’ve now realized how much restrictions suck on top of software that has none.

Ben Cook October 24, 2009 at 1:49 pm

Jeffro, as I said in my comments over on your post, I don’t really make much distinction between Matt, Automattic, and WordPress.org.

That’s an entirely different post all together but my point is that Matt (who runs WordPress.org which unless I’m mistaken is not a non-profit yet) should put his money and actions where his mouth has been.

I agree that it wouldn’t make sense for Automattic as a company to file a suite but IF WordPress themes do in fact inherit the GPL it would behoove WordPress.org to establish that legal precedence.

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