On WordPress, Thesis, and profitable GPL software

My twitter feed (full of people in the WordPress community after meeting a ton of people at WordCamp Boulder last weekend) unexpectedly caught fire this morning on the #thesiswp hashtag. I had no idea what the fuss was about, but I wasn’t surprised when I read into it: the item in question is Thesis, a robust premium WordPress theme that costs a minimum of $87, and whose source is under a closed software license.

The debate and confusion is really about the licensing status of custom WordPress themes. WordPress is covered by a copyleft license which requires that works derived from the software be covered by the same free, open source license (specifically, GPL v2.) But “derivative works” is a pretty vague concept, and can be interpreted in many different ways. That’s why WordPress founder Matt Mullenweg wrote the Software Freedom Law Center, some of the most experienced legal experts on libre software issues. They provided a rather comprehensive interpretation of the issue:

“In conclusion, the WordPress themes supplied contain elements that are derivative of WordPress’s copyrighted code. These themes, being collections of distinct works (images, CSS files, PHP files), need not be GPL-licensed as a whole. Rather, the PHP files are subject to the requirements of the GPL while the images and CSS are not. Third-party developers of such themes may apply restrictive copyrights to these elements if they wish.”

This falls in between WordPress developers’ wish that the whole community support libre software and Thesis’ completely closed license. Theme PHP must be GPL-compliant, but the graphics and CSS may be licensed otherwise.

As someone who makes custom themes for clients, I am familiar with the feelings of apprehension about open sourcing some of your work – often done for a client who neither knows nor cares about the finer points of free software principles. The common fear is that by giving away your code, you also give away your business model. This couldn’t be farther from the truth. (Unless your business model depends on every customer abiding by your copyright – a foolish strategy in light of how easy it is to pirate web app source code, not to mention an overvaluation of the originality of your source code) (UPDATE: WordPress’ own Jane Wells points out that it’s even less complicated than this for custom theme work, as you only must publish your source under GPL if the theme itself is publicly distributed.)

The truth is that many companies comply with the GPL, retain their trademarks and licensing rights (including WordPress theme graphics and CSS), and do so to great profits. Google, Apple, Facebook, Red Hat, Novell, and countless others make their GPL source available – as do many other WordPress premium theme makers. You can sell themes as long as your PHP complies with the GPL. Pirates can easily copy the rest of your theme regardless, but embracing the GPL not only complies with copyright law and the license terms, but it supports the ideals that made WordPress possible, and makes the whole community project stronger for everyone. And you don’t have to go out of your way to be financially sustainable while doing so, either. Novell and Red Hat sell their entire OS open source under the GPL, the Mac OS X kernel and UNIX userland is open source, so there is no reason why a WordPress theme can’t be both GPL-compliant and profitable.

In short:

  1. Know the license before you use any software
  2. REALLY know the license if you plan to make any money by reselling/extending/developing on top of that software
  3. Comply with copyright law and license terms
  4. Have a business model that relies on your ingenuity and competitive advantages, not on often-disrespected intellectual property laws. If it works for so many on the Fortune 500, it probably can work for your small business.

17 comments

  1. In all this ‘FREEDOM is the best’ debate, people are forgetting one thing:

    if there wasn’t for the first premium themes that brought new ideas and functionality to the community, WordPress would still be a software for teens to blog about Twilight and Harry Potter.

    Developers of premium themes brought to the table much more than most people think. Don’t underestimate the impact of these developers.

    1. My point is that this isn’t “Freedom versus premium themes.” You don’t sacrifice freedom for profit or vice-versa. Indeed, there are many people and companies whose work makes WordPress better and better. But that doesn’t excuse violating the software license. If you determine that the license isn’t good for you, there are plenty of other platforms on more liberal licenses available for you.

  2. I understand the concern showed by Matt but I believe instead of brining all this conversation on Twitter, easier way could be having one-on-one conversation with Pearsonified and later on if that doesn’t conclude anything,he could have brought this on Twitter.
    Anyways, I’m a big fan of Thesis and obviously WordPress, because that’s where Thesis is running. So I hop to see both of them winning after this Virtual war.. :)

    1. I’m not convinced that a home foreclosure attorney inexperienced with software licensing is a suitable source with which to “balance” this issue. Yes, there is legitimate debate as to the meaning of “extends” or “derivative” with respect to the GPL, and it lacks legal precedent, so it’s a matter of opinion there. But taking on business risk before knowing you’re OK with the license terms is just bad strategy. I’d be sympathetic towards Thesis’ licensing terms if it were built for an Apache or BSD-licensed application.
      (Also, did you know that your linked website uses your link as agreement to the rather elaborate legal policy of its own? Go read it, it’s pretty hefty.)

      1. And I’m not convinced that random people on the internet are worthy of listening to, either.

        How about dealing with the issues instead of an ad-hominem attack based on what you “think” his qualifications are?

      2. You wouldn’t ask a PHP programmer for advice on Django. If you publicly state that he’s unqualified, would I be correct in accusing you of an ad hominem argument?

        It’s certainly not an ad hominem attack when discussing an extremely niche, specialized area of the law. We as non-lawyers can throw around definitions of the word ‘derivative’ all day long but that doesn’t mean we’re basing it on solid legal footing. When discussing something you know nothing about, as is done commonly in the court system, it is perfectly acceptable, even encouraged, to defer to experts.

        Honestly, you and I aren’t qualified to make any assertions here either. But we can for fun, so why don’t you take down the serious level a notch?

      3. My intent is not to attack the character of the writer to distract from the real issues at hand. I just don’t think this person’s qualifications really is suitable “balance” for the debate in comparison with the legal opinion of someone dealing with software licensing law all the time. I actually think his point on copyright law’s view of derivative works is a compelling one, but until we have legal precedent, I’m trusting the research of the SFLC.
        We are all free to differ on interpretation of legally unclarified issues such as this, but that doesn’t free us from the liabilities that come from bad judgment in that area. The wise thing to do would be to avoid such grey areas and either embrace the GPL or go with a non-GPL platform.

  3. It’s actually not about custom work at all. GPL only kicks in with distribution. So if you do a custom theme for hire and deliver it to a client, it’s fine. It’s only if it’s being put into public distribution that you need to license it as a derivative work under the GPL. The Crowd Favorite guys who organized the WordCamp are good people to talk to who deal with/understand this in the Denver/Boulder are very well.

    1. That’s right, thanks for adding to this… Totally forgot about this aspect of the GPL world today. Also, your session at WordCamp Boulder was great, your words about giving back to the WordPress community are even more relevant in light of today’s events :-)

  4. Just to point out about the source as someone who’s still making up his own mind.

    First, the guy is an attorney who went to law school. Second, he states on his site (maybe in his comments, I can’t remember exactly which of his two posts) that he used to have a practice that included intellectual property and copyright law. Third, he sites a court opinion that may apply to GPL licenses and themes.

    He doesn’t need to be a currently practicing attorney working on high profile cases to be right or insightful. He doesn’t put himself forth as an expert on software, but instead simply states the legal differences between concepts in the tech discourse and legal discourse.

    As for balance, I would say the he seems to be neutral. Meaning, he doesn’t have a horse in this race, doesn’t have an axe to grind, and seems open to interpreting new facts and nuances from a cogent perspective (e.g.: the revelation about the GPL code included in Thesis).

    On the other hand, Matt Mullenwag et. al. can only reference the attorneys who receive their paychecks working for the GPL and Open Source causes. These are paid advocates paid for advocacy along the lines Matt is arguing.

    They may be right. But they are not balanced or impartial arbiters.

    Although I’m neither a software coder nor an attorney, I’ve followed a lot of intellectual property issues for the past 15+ years, and I’ve also taken graduate level business law classes in copyright and intellectual property. The WordPress.org camp seems to know a lot about coding but practically nothing about copyright law and how licenses and contracts cannot override copyright or have selective application.

    One of the basics of copyright is that it’s a right to control copies of one’s creative work. If Chris Pearson’s Thesis merits its own copyright, then his stubbornness on not releasing Thesis may run counter to the WordPress community’s mores, but is fully within his rights.

    On the other hand, if he’s violated someone else’s copyrights to WordPress, then the author/copyright holder for WordPress can initiate infringement proceedings against him to stop the infringement.

    I suspect Pearson has plans to release Thesis without WordPress somehow as its own, independent publishing platform and perhaps continue selling it as an add-on to WordPress or other platforms in the interim. Issuing Thesis under the GPL would force new versions of Thesis to be completely new code from the old Thesis to avoid inheriting the GPL restraints for his business model.

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