Why Mullenweg Should Stop Trolling Pearson Over the GPL
As I was working today I listened to this discussion on Mixergy between Chris Pearson and Matt Mullenweg. I, like just about everybody else making a comment on the issue, am not a lawyer. I’m not going to pretend to be one either by trying to interpret the GPL. I’ll leave that to the courts.
WordPress/Linux/Other Open Source App Couldn’t Exist Without the GPL
If you’ve been on Twitter, you’ve probably heard this statement several times over today. It’s an absurd and stupid thing to say. The GPL is a license, nothing more and nothing less. The GPL-licensed, open source applications that thrive and succeed don’t do so because of their choice in license. They succeed because the developers believe in free collaboration and community contribution and all that good stuff.
The GPL is just one of many open source licenses, and it merely makes an attempt to give a standard legal license to those who want to conduct a project in a way informed by open source principles. It’s a tool that helps these developers give away certain exclusive rights without requiring a lawyer to draw up a new license every time they start a new project.
The GPL is not the cause for any project succeeding. The people behind the project are.
The Platform Versus the Application
The question of whether themes are derivative or original creations is at the heart of this debate. If they are derivatives, they’re legally required to adopt the GPL license. If they’re original creations, they are not.
As I said, I’m not and won’t pretend to be a lawyer–but to me it’s common sense that a derivative would be taking WordPress and building another CMS based on its code. On the other hand a theme, which is your own unique design and customer experience and way of presenting information, is an original creation. The ease with which you can convert a theme from WordPress to HTML and vice versa should demonstrate that no theme really requires WordPress; they just work with WordPress.
When you really look at it, all WordPress does–for the complicated and feature-rich system it is–is either provide a layer of interaction between human and rendered HTML that automates some tasks and simply provides a human-friendly interface for other tasks. WordPress is incredibly useful and I’m not trivializing it (I love it), but to say that themes are derivatives of WordPress is as absurd as claiming themes are derivatives of CSS and HTML.
The GPL hasn’t been tested in court in this sense, but the best analogy is that theme is to WordPress as application is to operating system. If anyone said Photoshop was a derivative of any of the operating systems it runs on they’d be laughed at–and it would never hold up in court. The developers of commercial applications for Linux-based operating systems (Linux is also an open source licensed product, if you didn’t know) are happily conducting business without any threat of litigation. Themes are simply applications on the WordPress operating system.
Why It Shouldn’t Matter Anyway
Whether Mullenweg can or cannot enforce this is beside the point. It’s not a business savvy decision. For the sake of his business and product, he shouldn’t be doing this.
There’s the small issue of PR. While all the WordPress fanboys and free software fanatics are clamoring behind Mullenweg, he looks silly for picking petty fights to everybody else. There’s the fact that he’s essentially slandered Pearson with some of his statements and the mobilization of aforementioned fanboys certainly hasn’t helped, and is now open to cop a lawsuit himself.
But I’m not talking about either of those things.
If you develop a platform and you have any respectable business acumen, you’re not going to criminalize your evangelists. Someone who could make smart business decisions would actively encourage a free market around the product. GPL, proprietary, any of the licenses in between–it doesn’t matter, you encourage it. You can keep your own product licensed as GPL and encourage theme developers to go that way, but it’s only going to help your product to encourage a free market including all license types around the product.
Matt Mullenweg has the option to create a thriving, diverse free market around WordPress. An entire micro-economy. When deciding on a content management system, consumers would choose WordPress because of the amazing diversity of themes they can acquire. Developers would remain loyal to the system because they know they can engage in the commercial agreement with customers that suits them best.
WordPress is in a good position now–it’s popular, developers love it, and there are plenty of themes available for money and for free (though they’re not usually very good free themes). By beginning a campaign against the platform’s most enthusiastic evangelists it could very well kill itself.
I hope that Mullenweg does sue somebody and the courts determine that themes are not required to be distributed under the GPL. Ironically, I hope for this because I like using WordPress and want it to thrive so I can continue using it.
Lessons for Your Business
- Success is about the people you get involved. Not the constitution of your company or the legal structure you choose to operate under; they’re just tools.
- Don’t try to control or assassinate your evangelists.
- If there’s a market around your product, encourage it–it’ll only make your company its product more indispensable.
Disclaimer: I work for Envato. We run ThemeForest, which sells premium themes, so it’s important for me to note that I am not representing the views of Envato (who in fact enforces a policy requiring themes to be GPL licensed), and I’m my work there is not involved with ThemeForest so I have no vested interest in this myself. These are my thoughts, and mine alone.
Update: Envato colleague Fred Wu has done one of his classic one-page sites at Fuck GPL — love it!
About the Author
Jeffrey Way July 15, 2010
“WordPress/Linux/Other Open Source App Couldn’t Exist Without the GPL. If you’ve been on Twitter, you’ve probably heard this statement several times over today. It’s an absurd and stupid thing to say. ”
Why is that an absurd thing to say? Nobody is stating that the GPL alone is responsible for WordPress’ success; but it’s a simple fact that WordPress could not have been created if its predecessor, b2, hadn’t adopted the GPL. That’s what people are referring to when they bring this point up. The GPL (or any other similar license for that matter) allowed Matt and Mike to fork b2, and turn it into what it is today.
Liam July 15, 2010
I agree, quite a ridiculous situation this and the WordPress gang are quite simply wrong.
Jacob July 15, 2010
Interesting take. While I am inclined to agree with you, I think:
1. I’m definitely not a lawyer, and am not interpreting this disagreement from a legal standpoint.
2. I think both Matt and Chris have valid arguments, but
3. For either individual to disrespect the other (in the case of the Mixergy debate) is only going to hurt himself.
4. I’m inclined to agree with Matt on the basis that he had a clear head throughout the entire interview, whereas Chris lost his ‘cool’ and, in my opinion, was rude and disrespectful.
5. Unfortunately, I don’t see this issue going away. I don’t think either will back down. I think it will ultimately be decided in court, which will hurt everyone involved.
No matter how this thing ends, I will continue to use WordPress, build my own themes, and continue to not buy Thesis on the basis that I no longer respect its lead developer. I don’t think I’m alone here, either.
Joel Falconer July 15, 2010
@Jeff: Nice to see you over on here! Someone made a statement like this to me on Twitter earlier and it irked me a bit, though they weren’t referring to the fork specifically. That said, I still think that what I said in the article applies–it’s the open source ideology that really allows these things, not the license, and any other decent open source license would’ve allowed the fork. The ability to fork, for anyone to contribute to a project and so on are (in my opinion) what really represent open source and allow projects like WordPress and Linux to thrive, and even clauses that require derivative works to remain open source are good to a point–but a derivative work is what WordPress is to b2, not what Thesis is to WordPress (in my opinion as someone who is not a member of the American courts
.
@Jacob — fair enough stance, though I can empathize with Chris for being so angry after Mullenweg rocked the boat a bit too far and caused a huge community loyal to WordPress to attack his business and hijack the #thesiswp tag.
Jacob July 15, 2010
@Joel: I must say, I did catch up to the debate a little late. I missed the boat rocking, so I should probably keep my mouth shut…
Specifically, then, what part of the GPL do you have a problem with? Or is it just the “how do we define derivative work” argument that is behind this whole ordeal?
Russell Skaggs July 15, 2010
To be honest, most of what I heard was from the interview on Mixergy, but I feel Matt was totally right in trying to get thesis to follow the GPL.
If he didn’t want to follow the GPL, and Thesis is as innovative as he says he could surely build his own CMS to run thesis on, or alternatively he could build on a platform that doesn’t require him to go GPL. He chose wordpress so he should simply follow the rules.
Plus I just can’t take Chris seriously after comparing breaking GPL to getting a blowjob.
Joel Falconer July 15, 2010
@Jacob — the liberal definition of derivative work that Automattic is employing is what I and most people who have a problem with Automattic’s stance on this take issue with. It’s just inaccurate to say that a theme is a derivative because it happens to use hooks to retrieve content from WordPress’s database.
If you look at the definition for derivative, it’s a simple open and shut case; a derivative is an imitation or a creation based on the original. WordPress is a derivative of b2, of course. A theme is not a derivative of WordPress, or the theme would be a CMS. A theme interacts with, rather than derives from, WordPress.
Matt Adams July 15, 2010
I agree absolutely with Joel. This all rings back to the time when developers refused to work with the GCC because any code compiled with it was assumed to be under the GPL. It was then decided that simply passing or display arbitrary information should not constitute a link to the project.
I stand firm with that decision and think that it entirely applies here as well. A theme is doing nothing other than displaying information provided by the WordPress backend. It is not a derivative work; it does not modify the WordPress sourcecode in any way. To argue that something like this constitutes a GPL violation just shows how unenlightened Matt is on how copyright law and the GPL work.
Trisha Cornelius July 15, 2010
I think a great deal of this problem actually derives from misunderstanding the GPL itself.
Firstly, as a license that claims to promote freedom – it is restrictive. The license exudes an aura of “one true way” to license software. (Just my opinion)
Secondly, the wording of the license is confusing. If you look at the definition of program in the GPL it is not clear whether themes and plugins fall under the scope of its terms by virtue of the fact that they work with WordPress.
The next problem with the GPL is it is very inflexible. The license itself on its own terms precludes the creator of the program from changing the license – which is absurd.
Given the widespread adoption of WordPress & it’s growing micro-economy I would hope that this whole debacle prompts WordPress to clearly define exactly what is required from developers in licensing themes & plugins.
Perhaps it is time for WordPress to adopt a clear license where everyone knows exactly where they stand. Because this issue seems to have arisen because no one is actually certain exactly what the license means.
Jeffrey Way July 15, 2010
@MattAdams – To imply that Matt is “unenlightened” on the workings of the GPL is preposterous. Can you imagine how much research his team has performed on this subject, and how many lawyers have advised him? That’s disrespectful.
@Joel – So it seems you’re primary issue is with whether or not a WP theme is considered to be a derivative work. That decision is obviously one to be made by the lawyers, and not us. None of us know the legalities enough to make any kind of intelligent judgments. However, you have to respect that the Software Freedom Law Center reviewed WordPress and found that themes are, in fact, derivative works of WordPress, excluding the images/CSS/JS.
The world’s experts on GPL agree with Matt. It looks like they’ll be taking Chris to court on this issue — and they’ll probably win.
Matt Adams July 15, 2010
@Jefferey Way
If this were a case of actually extending the functionality of WordPress, I’d absolutely agree with you, but this isn’t. This is taking static data handed by the backend, and forming a way to display it. Nowhere in the GPLv2 do I see a clause that causes non-derivative works to be subject to the license-extension. The top GPL lawyers say that this constitutes copyright infringement, but at the same time, Microsoft lawyers swear up and down that much of the recent GPL lacks legal validity. Of course GPL lawyers are going to fight for the GPL, that’s what they do. Anti-GPL lawyers are going to fight against the GPL, that’s what they do.
In the end, this is just displaying already-generated data. This is doing nothing spectacular, extending functionality or improving the logic. You cannot create a patch for this and commit it against WordPress, because it isn’t a part of WordPress. It does not derive from the work, and therefore does not even fall under the WordPress copyright. In the end, this is just a business decision on behalf of Automattic and has little to do with morality and principles.
Joel Falconer July 15, 2010
Hey Jeff, certainly will be an interesting court case. While a lot of experts are in Matt’s corner, there are a fair bunch of IP law experts in the theme designer’s corner too, so we’ll have to wait and see what happens.
Since the legal result is out of our hands (and out of Matt’s and Chris’s hands too), the question I’m most interested in is, is it right for the theme designers to be bound to the GPL? I don’t mean right according to the license–I mean in the sense that it’s beneficial to either party. Of course, I don’t think it is, and I haven’t heard any arguments that show any real benefit to WordPress or the theme designers–or guys like you and me who make our living thanks to the Internet–in enforcing this.
Who it does serve, of course, is the agenda of the Free Software Foundation, lest we allow someone to sell intellectual property!
Ken July 15, 2010
As for copyright and licensing: First, the GPL is a copyright license. In copyright law, failing to protect your rights means giving up those rights under the law. Regardless of who is right, Mr. Pearson has put Mr. Mullenweg into the position of defending the his copyright in court. His only alternative at this point is to lose his copyright with regards to WordPress. That would affect more people then just himself by the way; developers on the platform gain rights from GPL that would also be lost.
It has nothing to do with “trolling.”
Joel Falconer July 15, 2010
@Ken – to the best of my knowledge it is only in the area of trademarks that the law requires the holder to defend the intellectual property in order to retain it.
Dom Wood July 15, 2010
They are both wrong in my opinion, Matt and Co. should have changed to a license that actually covered this sort of thing, and Chris was just disrespectful to the work that goes in to WordPress, after all, it’s FREE software and if all they ask is you retain their license (which isn’t going to hurt you, ThemeForest kind of proves that) then you should respect that.
It’s not a matter of who is legally right or wrong, it’s a matter of respect, common sense an ethics.
Well, that’s my opinion anyway
Tommy M. July 15, 2010
Chris was egotistical, went on lengthy diatribes that confused the prelaw, economist in myself. He rambled and loved to hear himself talk while putting himself up in the WordPress community as one ofthe top three.
In the end, if a given application relies on a license that mandates GPL, then you respect that. At the same time, should we be paying for core inprovements or even design improvements to Linux? I don’t see anything wron with it. Yes, it goes against te spirit of the application, but is that enough to mandate GPL?
Ps, it’s 3am I’m asleep. I’ll check this tomorrow for grammatical sense.
Thesis requires WordPress. It sells with commercial licensing. WordPress requires aftermarket components to be released as GPL if the core is intact at least 70%, which is the arbitrary agreement o what constitutes original work.
Basically, Matt is right, but Chris hasa strong argument.