First a declaration…
I am employed by Automattic but these are my personal opinions and not a statement on behalf of Automattic. More relevantly I am a contributor to WordPress but this is by no means a statement on behalf of that community.
Now, to the point…
I’ve been following the discussion over at pomomusings which follows a post where Adam Cleaveland listed the Thesis theme as one of the top 10 reasons for switching to WordPress. Matt Mullenweg (who can make statements on behalf of WordPress) posted an early comment where he suggested that the WordPress Theme “Thesis” was “hostile to WordPress’ core freedoms and GPL license”. The obligatory GPL debate ensued with Thesis developer Brian Clark refuting the claim. His comments so far have culminated in a statement where he indicated that he suggested to Matt that “we consider a declaratory judgment action” to resolve the question of whether the Thesis theme should by law be distributed under a GPL license.
I’m going to skip over the part of the discussion where Brian seems to get mixed up about derivative works with regard to copyright as opposed to as it is defined in the GPL (that’s intellectual property law versus contract law, conflating the two is erroneous at best and deceptive at worst). Rather I take issue with this notion of taking the whole matter to court. As I see it, the suggestion is a tactic in managing public perception.
A declaratory judgement on an ambiguous matter is not “friendly” to WordPress or the GPL, it potentially sets a precedent that will be referred to in later and less ambiguous cases without concern for the context of the original judgement. If GPL supporters wanted to set a precedent they would be better placed to do so with a more clear-cut case. It is disingenuous to suggest that such a case would benefit WordPress or the GPL by providing an answer to an unsettled question. It ought to be remembered that despite the several question marks over the propriety of Thesis using a non-GPL license there is no WordPress copyright holder suggesting legal action against it. It is only the owners of Thesis who are asking for judgement on the “unsettled” question ostensibly as a means to gain some sort of legitimacy and a more stable foundation for its business model whilst conveniently avoiding the risk of the direct and actionable consequences that may arise from a normal civil suit.
The owners of Thesis are the only party with something to gain from any declaratory ruling, and at worst they might be forced (only as a matter of prudence) to make the Thesis license GPL compatible if they lost. That would not necessarily mean refunds, just a retrospective change in license terms. WordPress would not gain anything from a GPL favourable judgement except maybe the availability of some new code from Thesis if it went GPL. That’s really not worth the cost of a legal team.
Regardless, Brian Clark misses the point that Thesis will not garner direct support from those who are influential in the WordPress community until it is distributed under one or more of a range of GPL compatible FOSS licenses. Winning an argument in court that the GPL does not apply to you is not going to make Thesis any more acceptable to those who champion the GPL approach within the WordPress community. That is a matter of preference of those people who have been in no small part guided by the larger community, and that preference will be unchanged by any such action – so they most likely won’t ever bother to participate in it.
In short the offer to settle this “argument” in court amounts to a trick of propaganda where Thesis attempts to absolve itself in the community via a manufactured silent concession, prompted by WordPress’ no-show at a court case where it has no tangible winning scenario.
Thesis’ very existence is not hostile to the GPL (even under a proprietary license), but the current actions of its owners potentially are. For damage to be done it requires someone within WordPress to take the bait and for no one to call out these actions for what they are.