Is Thesis hostile to the GPL?

FUD

FUD – source: ckelty at flickr

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.

6 comments
  1. [Decent Disclosure: I was the attorney for the plaintiff in the Israeli GPL Lawsuit jinchess v. ichessu which requested that ichessu disclose their source code]

    First, i don’t think that Thesis are legally bound to disclose their source code. they are a separate installation that is dependent on WordPress but isn’t distributed with wordpress. Any user wishing to use Thesis must install it by itself, and therefore not infringe the GPL.

    Clause 2 of the GPLv3 states: “You may convey covered works to others for the sole purpose of having them make modifications exclusively for you, or provide you with facilities for running those works, provided that you comply with the terms of this License in conveying all material for which you do not control copyright. Those thus making or running the covered works for you must do so exclusively on your behalf, under your direction and control, on terms that prohibit them from making any copies of your copyrighted material outside their relationship with you.”

    But I don’t think that Thesis violates GPL because of the aggregation clause: “A compilation of a covered work with other separate and independent works, which are not by their nature extensions of the covered work, and which are not combined with it such as to form a larger program, in or on a volume of a storage or distribution medium, is called an “aggregate” if the compilation and its resulting copyright are not used to limit the access or legal rights of the compilation’s users beyond what the individual works permit. Inclusion of a covered work in an aggregate does not cause this License to apply to the other parts of the aggregate.”

    Claiming that thesis, as a theme, is a part of is not “combined with it such as to form a larger program” is in the realm of reasonabilty. otherwise, where do you draw the line? does the Apache software and PHP construct a larger program?

    Well, I hope that if it gets to court, I can try it again.

    • Jonathan, sorry for not approving your comment earlier, it was marked as spam somehow.

  2. If you examined the entire thread that gave you your fodder for this post, you would have seen several times that Matt and I working this out in a non-legal way. No mention about that here is suspect and unhelpful for your employer.

    Also, licensing law is a form of contract law that dictates how intellectual property can be used by others. Licensing cannot dictate how other people’s intellectual property is used. I’m not mixed up about anything.

    I don’t want to sound condescending, but what law school did you attend? I attended the University of Houston, one of the top intellectual property legal programs in the nation.

    Anyway, I wish you would write about the fact that Matt and I are discussing these things together and trying to come to an agreement, which is how it should work. Instead, you’re writing about one aspect and ignoring the rest.

    This is how people come to suspect an agenda.

  3. Brian… not only does it sound condescending, but also arrogant. For the sake of the community, please consider adopting the GPL and you might find a good bit more support from developers.

  4. I have been monitoring whole #thesiswp debate. Though being a Thesis skin dev. I still believe Matt was right till a point. Though the way he reacted on twitter was far away from professionalism and least expected from him. I will rather wait to see Matt filing a lawsuit against Thesis if he things he is also right legally. 🙂

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