« Read how it all started in Part 1.
Synopsis
While the initial controversy about the Thesis-not-being-under-GPL issue was focused on themes and derivative works, an unclear area that probably needs to be resolved in court, it seems there is a far sounder reason why Thesis has to be released under the GPL: it blatantly copies WordPress code.
It all started with this tweet by Andy Peatling (@apeatling):
Not a clear GPL violation, because it’s extending WordPress classes, which, in effect, copies WordPress functionality into Thesis.
Code analyses
Andrew Nacin (@nacin) started going through the code of Thesis and started to make some encouraging/discouraging tweets:
I just found a line of code I wrote for #WordPress, but in #thesiswp. Funny, when I wrote it, it was under the GPL. #
And then, an initially uncorroborated claim:
This is really pissing me off. I’m up to a few hundred lines directly lifted from WP. A part of me is crushed. #thesiswp #
And then Drew Blas (@drewblas) did an automated analysis (like I suggested :) ) and found clear evidence of copied WordPress code:
Impact
At this point, it seems clear: Thesis isn’t merely building on top of WordPress, it literally incorporates WordPress code through copy-paste.
That makes Chris Pearson liable to fulfill his obligations under the GPL and distribute GPL derivatives under the GPL.
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Most damning
Andrew Nacin eventually found this in Thesis:
* This function is mostly copy pasta from WP (wp-includes/media.php), * but with minor alteration to play more nicely with our styling.
GPL test case? YES.
Chris Pearson indicated during his interview that he is fundamentally opposed to the GPL and will absolutely refuse to license Thesis under the GPL. By the end of the dialogue, he was practically saying “sue me”.
Matt Mullenweg responded:
Matt: Are you saying you want to be a test case for the GPL? You want us to sue you? I mean, that would break my heart. I’d rather you be part of the family.
While the themes = derivatives basis might have been shaky for a legal trial, I think the fact that there’s copied code clearly indicates one outcome in the end, in favour of the GPL.
Temporarily back to the case for themes = derivatives
WordPress isn’t the first community to issue the directive that extensions (themes, plugins) are derivatives. Joomla! did so a few years ago (I recall because I used Joomla! before finding WordPress) and Drupal makes it extremely clear.
If this matter can’t be determined by the GPL’s applicability to themes/plugins, maybe WordPress should just re-license, starting with a future version, with GPLv3 and add a specific requirement that themes/plugins are licensed under GPL.
DIY Themes is probably violating the GPL. The problem is there is absolutely no law that says you can’t violate the GPL. You can’t violate *copyright law*…whether or not that’s being done here is up for debate. And no, its not as simple as whether or not they copied WordPress code.
The thing is, in many jurisdictions a license will be enforced not under contract law but under copyright law. So yes, breaking the terms of a software license is breaking the law in a way that opens up the possibility of a civil suit, which wouldn’t be groundless.
In other jurisdictions, a software license would be enforced as a contract between the user and the licensor.
In both cases as it applies to the GPL and Thesis, it’s not a “crime” in the sense of criminal law but rather a matter of civil action.
I *do* wonder who the plaintiff will be: Automattic Inc., the WordPress Foundation, or the WordPress community?
Disclaimer: I’m not a lawyer.
Somebody should tell that to the RIAA, see what kind of response they have. ;)
Enforcing End User Licenses, which includes the GPL, is a thorny issue, and the cases that have come before the court focus on certain clauses (vs. ruling that they are all universally applicable). And in this case, they will focus on the clearly copy+pasted code.
Besides, this would most certainly be a Civil case. The question of illegal activity is a criminal matter. And for the record you can absolutely violate copyright law. Ever seen a DVD? They all start with a friendly message of exactly which federal laws you can violate. Of course this isn’t a copyright case so this last bit is largely irrelevant.
Further Reading:
http://en.wikipedia.org/wiki/Software_license_agreement#Enforceability_of_EULAs_in_the_United_States
The GPL isn’t exactly a EULA. Users can use WordPress without accepting the GPL as long as they don’t redistribute it. The GPL’s very clear about that.
That isn’t feasible. WordPress copyright is distributed, so there are literally thousands of people who would have to sign off on a relicensing. Many of them are known only by pseudonym. We don’t have contact information for all of them. We are inescapably “stuck” at GPL v2, because b2 lacked the “or any later version” clause.
I put “stuck” that in scare quotes because it’s a blessing in some ways. We can say without any doubt, that all future versions of WordPress will be free/libre software, licensed under the GPL. As Mark Pilgrim said, you “will never be surprised by the licensing of new versions of WordPress.” You certainly can’t say the same about Thesis. Its license retains the right to change the terms at any time, without notice.
Oh, true… if B2 didn’t have the “or any later version” phrase, the GPLv2 is the GPLv2. Sigh that GPL.
Also, some of us (myself included) don’t like some of the provisions of the GPL3. I won’t contribute to code licensed under it.
What is it about the GPLv3 (summary of changes from GPLv2) that you specifically object to? I’m curious to know…
All the legalities of this whole debacle aside — due primarily to the fact that I am not a lawyer, nor do I have a very strong background in litigious issues — I think the real elephant in the room is not so much Chris’ arrogance anymore.
Indeed, I believe it’s his insecurity. He’s frightened to the point of arrogance that somebody is going to steal his hard work. This kind of insecurity is oft found residing with those who have a deeply guilty conscious of committing the act that they’re most afraid of.
Then again, I’m not a psychologist either.
As far as themes = derivatives go I took a more in-depth look beyond Thesis at what everyone thought was the issue: Does the GPL apply to themes and plugins?: http://bit.ly/cygoRV