Comments on: Commercial WordPress Themes’s PHP Code is GPL 2 Too

By: Mitch

Mitch — Sun, 16 Aug 2009 09:12:23 +0000

I always wondered how these commercial theme creators got away with this. I’ve seen many lately putting spyware in the footer.php and then distributing them as well. Then they get all worked up if you modify it.

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By: Nathan Rice

Nathan Rice — Mon, 06 Jul 2009 19:12:14 +0000

@Lloyd,
We could definitely go ’round and ’round about this, but I think we understand each other’s positions pretty well now.

We certainly agree that theme authors should license under the GPL, and that’s probably the point we should all take away from this.

Thanks for hashing all this out. I’ve enjoyed it.

By: Lloyd

Lloyd — Mon, 06 Jul 2009 18:32:08 +0000

@Nathan, thanks for the clarification. Overall, I think we are mostly on the same page.

Derivative work and single work are language for the same outcome. I find the 2nd a useful test in my thinking, but I can see how that could be confusing for others. 1st test for me: does it create a new version (derivative) of a single work. If that fails, then it it fails the derivative work test, and that seems to be the story for WordPress Themes. For example, if I thought my favorite book would be even better if it had a few new chapters or maybe just a different cover, whether distributing my creation by itself or with the original work, the result would be a single work, and I would have to consider copyright of the original work.

From the GPL v2:

“These requirements apply to the modified work as a whole. If
identifiable sections of that work are not derived from the Program,
and can be reasonably considered independent and separate works in
themselves, then this License, and its terms, do not apply to those
sections when you distribute them as separate works. But when you
distribute the same sections as part of a whole which is a work based
on the Program, the distribution of the whole must be on the terms of
this License, whose permissions for other licensees extend to the
entire whole, and thus to each and every part regardless of who wrote it.

Thus, it is not the intent of this section to claim rights or contest
your rights to work written entirely by you; rather, the intent is to
exercise the right to control the distribution of derivative or
collective works based on the Program.”

The GPL is a copyright license, and Matt’s comment about linking seems a little off. The linking discussion in the FAQ is used to help establish that it is a derivative work (single work) or not. I haven’t seen case law that uses that aspect of the license, and the language in the GPL v2 at least doesn’t go there.

I don’t see how PHP can differ from other interpreted programming languages. You write that these loopholes are easily exploitable, but don’t provide any examples of how this has been born out in courts.

Going full circle, I think Matt’s article on wordpress.org and initiatives like commercial 100% GPL themes listed on WordPress.org will allow many people to move on, move forward. Thanks for your insights.