Another Post About Thesis And The GPL License

A few days ago I wrote about the GPL debate between Chris Pearson and Matt Mullenweg. I know many of you are not remotely interested in this debate though I really think this is an important discussion and the end result could dictate how premium themes are developed over the next few years.

When I posted about this issue on Thursday I was still not sure if the Thesis framework was violating the GPL license. I now know that it is.

Andrew Nacin, a core developer of WordPress, noticed that some code in Thesis was copied directly from WordPress. One of the original developers of Thesis, Rick Beckman, has since come forward and apologised for copying this code.

Even if code was not copied in Thesis, it would still be violating the GPL license as all WordPress themes have to be GPL. This is because any code, be it a plugin or theme, which is built on a GPL platform has to be GPL as well (one of the main features of the GPL license). Mark Jaquith explained this really well in his article ‘Why WordPress Themes are Derivative of WordPress‘.

Styling such as images and CSS can be given a different license by theme developers if they want to protect their work. WordPress only advertise themes on their site which is 100% GPL (i.e. PHP/HTML code, images and CSS) though this is understandable as it allows people to build on the work of others. It’s also worth noting that any CSS code which is copied from a GPL theme would also be GPL.

I am not a lawyer though it is apparent that the Thesis theme is in violation of the GPL license. Therefore I fully appreciate why Matt has been so vocal on this. I’m glad that Matt has resisted going through the courts to sort this whole issue out. No doubt it would be a long drawn out affair regardless of the outcome. On the one hand, winning a court case against Chris Pearson would highlight that all themes have to be GPL. On the other hand, I wouldn’t like to see a theme developer being taken to court when their main concern is not the license, but protecting their source of income.

Whilst I don’t agree with Nathan Hangens view that the GPL license is marxist, I must admit I’m not a fan of the way Matt Mullenweg is trying to encourage WordPress users to switch from Thesis to another premium theme.

Matt Mullenweg

Overview

I don’t believe we have seen the end of this debate. Chris feels quite strongly about Thesis not becoming GPL and in his interview with Andrew Warner he made it clear that he would go to court if he had to.

Matt Mullenweg is right to be bringing this issue up as Thesis is breaking the license which WordPress is built upon. Though I can’t help sympathise with Chris Pearson’s situation. If Thesis goes GPL then he is going to have a lot of competition as others will release their own versions of Thesis and offer their own support packages.

Matt points out that Thesis would get a huge amount of exposure on WordPress if it went GPL so any loss of income from rivals would be made up from the increase in sales from the promotion on WordPress. He’s probably right.

Even though Thesis is violating the GPL license, I do understand why Chris has been so reluctant to change the Thesis license, but change it must.

Kevin

This article was authored by:

Kevin Muldoon is a professional blogger with a love of travel. He writes regularly about topics such as WordPress, Blogging, Productivity, Internet Marketing and Social Media on his personal blog and and provides technical support at Rise Forums. He can also be found on Twitter: @KevinMuldoon and Google+.

Kevin Muldoon has authored 833 posts.Visit Website

Showing 6 Comments

  • Jim

    Itâ€â„¢s probably in the best interests of both parties to drop the bickering altogether. By not enforcing the issue WP/Automattic gets the best of both worlds in terms of commercial development that drives innovation and free source code for WP. If Pearson stops pushing the issue, he wonâ€â„¢t incur the financial costs of a lawsuit and the business risks associated with it.

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  • Chris presumably has the name Thesis trademarked. He can also split license, keeping his CSS, JavaScript and artwork under a separate license. His support and community are just as important as the product.

    I haven’t spoken with Rick but i do not believe he is responsible for all major instances of GPL WordPress code in Thesis. His was in the context of some comment functions. My post highlighted something in media.

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  • Jim

    It really doesn’t matter. The more they push the issue they worse off they both are. It’s still in both parties best interest to drop the whole thing.

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  • Kevin (Admin)

    I’m not so sure now Jim. What this whole thing has illustrated is that a lot of people are still unsure about what GPL means.

    Thesis is one of the most popular themes around and has thousands of users. From a developer point of view, I can understand why any software company/project would go after a commercially successful company which was breaking the terms of your software license.

    I don’t think Matt should be encouraging Thesis users to try a different theme. Though I do now have a better understanding of why he feels so strongly about this whole issue :)

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  • Kevin (Admin)

    Yeah Rick did admit that he was behind a lot of the ripping. I get the impression from his comments that he doesn’t like Chris too much and has suggested that Chris relies on helpful thesis users in the forums in order to provide support.

    I’m not sure if splitting the license would be as beneficial for thesis as it would for other themes as the code/functions are what users need. However, doing so may discourage others from releasing thesis-like themes based on his code.

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  • Kevin (Admin)

    An interesting quote which Brian Clark posted last week.

    Number one, the GPL has never been tested in court in this context, and therefore is not the law. Itâ€â„¢s just a license issued by one software developer (a form of implied contract) that some would like to see voluntarily honored by those who build other software that complements or improves the original software. Unless the GPL is proved to be legally enforceable in a specific context, no one can be forced anyone else to make their software GPL.

    If the GPL is tested in court to see if its legally enforceable, it will be shot down in most cases (specifically with regard to premium WordPress themes, and especially full-blown software like Thesis), because it attempts to expand copyright law (specifically, the well-settled law related to what constitutes a derivative work) in a way that would never be acceptable intellectual property doctrine.

    In short, it would be bad law that would have a ripple effect across copyright. No judge would do that, and thereâ€â„¢s no legal precedent that would allow a judge to do that regardless.

    This is why WordPress resorts to propaganda instead of lawsuits. When they lose the lawsuit, the GPL game is over.

    Finally, this has nothing to do with using the software as a customer. Any legal haggling would be between the two software developers. There are no consequences whatsoever to people who have purchased the software.

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