[kwlug-disc] Wordpress themes must be GPL

[Ralph Janke]

On July 27, 2010 06:16:19 pm Khalid Baheyeldin wrote:
> On Tue, Jul 27, 2010 at 3:53 PM, Ralph Janke <txwikinger at ubuntu.com> wrote:
> > Well.. the question is the difference between linking, and just calling.
> ,,, 
> No.
> 
>http:// www.gnu.org/licenses/gpl-faq.html#LinkingWithGPL
> 
> The stance of the FSF is that dynamic or static does not matter. What
> matters is whether the caller and callee run in the same program space or
> not.
> 
> http://www.gnu.org/licenses/gpl-faq.html#MereAggregation
> 
> http://www.gnu.org/licenses/gpl-faq.html#GPLAndPlugins
> http://www.gnu.org/licenses/gpl-faq.html#NFUseGPLPlugins
> 
> The GPL was initially written when shared libraries were not in common use.
> Later when shared libraries became common, the GPL was interpreted to
> extend to shared libraries.
> 
> And now that we have interpreted languages in common use, things get
> more interesting, and the FSF says the GPL applies to the application (e.g.
> Drupal or Wordpress) and its plugins (modules, themes), despite the
> language itself (PHP) being non-GPL.
> 

Well. With all due respect to the FSF, this is an opinion how they would like 
to have the license interpreted. However, if you study i.e contract law, you 
will learn that only because a something is in a contract, it does not mean it 
will be enforced exactly the same way by a court. In fact, one could say that 
you will hardly find a contract the is 100% valid in the way it is written. 
Just look into the terms and conditions that you get from you bank or your 
credit company and ask a lawyer if there are any unenforceable clauses in 
them.

Similarly, it was Apple's opinion, that they have the right to disallow you to 
"jailbreak" their devices. However, as we have just seen, the Library of 
Congress has a different opinion about that, and has given it as an exception, 
an example that does not fall under the copyright law.

As long as we do not have courts finding that the distinction between same and 
different user space is acceptable, we do not know if this interpretation will 
be accepted by courts. There is certainly reason to argue that if you do not 
copy anything, you cannot infringe copyright law. I can, i.e. buy a book, and 
change the contents of the book by adding hand written commentaries. Under the 
first sales doctrine, I am also allowed to sell this book at a later stage. No 
copying has taken place, there is no issue under copyright.

If you have a case where a court has decided on this issue, please give me the 
reference, that I can study it, however, I have not seen any example that 
would cover this issue.

> 
> There are two separate issues: "GPL virality" and "derived work".
> 
> The FSF says that PHP and Javascript in a theme or a module would be GPL,
> because they run in the same user space as the main application, and also
> by using the API of the application, and being specifically written for the
> GPL
> application.
> 
> e.g. https://drupal.org/licensing/faq#q7
> 

Again, Interpretation. We need test cases to know how to see this in the 
context of the entirety of law.


> > On the other hand, we have the Pystar vs. Apple case in the US, in which
> > Pystar
> > was prohibited to resale Apples copies of leopard and snow leopard with
> > their
> > software. However, I am not sure if this case said anything about the
> > case if Pystar would have only sold an additional software, and the user
> > had to find
> > a legal copy of Apple's (snow) leopard themselves.
> 
> Apple's operating system is non-GPL. It is licensed under a proprietary
> license.
> Psystar had no license to distribute Apple's software, and Apple sued and
> won.
> 
> If the user had to buy a copy themselves, then Psystar would not have been
> sued,
> but Apple would still be upset, since they want their software to run only
> under their
> hardware.
> 
> Unrelated to our discussion.

It is not unrelated to the discussion. If you follow the discussion about the 
Pystar case, there was a lot of discussion on groklaw how the outcome of the 
case would influence issues with GPL. It is also clear that the First Sale 
Doctrine was confirmed by the court, but it found that it did not apply to this 
particular circumstances IIRC. 

The fact, that Apple has a proprietary license and GPL is also irrelevant in 
regard to copyright law. Both a subservient to copyright law and hence can 
only operate in its space. You cannot as an example extend your copyright to 
1000 years in form of an agreement or a license. Similarly, any other 
conditions you put in a license are not automatically legally binding because 
you include them unilaterally,. While there is a legal principle called 
freedom of contract, this principle is severely limited by statutory and 
common law. Just look about case law about warnings of limitations of 
liability towards patrons or trespassers. Most of those are rather instruments 
of imitation than valid legal agreements.

> 
> > Maybe it would be an interesting test case to see if a court would put
> > the building of a theme in wordpress or drupal equivalent to what Pystar
> > did (even though is wordpress or drupal distributed with the theme?) or
> > if it would be solely a question of the usage and derivation of existing
> > code.
> 
> The cases are very different.
> 
> Under the GPL, if you redistribute (including selling copies), the buyer
> has the rights that the GPL provides, meaning they are free to take the
> work and redistribute it to others, including sell it, give it away,
> upload it, ...etc.
> 

if you don't distribute this is not an issue. The problem Pystar had was that 
they distributed their code together with Apple's software which was legally 
bought. However, I do not think that court tipped their hands in any way hwo 
they would have found if Pystar would have only sold their software and had 
the user obtain a legally obtained copy of Apple's software.

Similarly, I suggest that it makes a difference if the theme contains any 
copied code or not, and if it is distributed with word press or not. There is 
nothing, I can see in the GPL license that forbids me as a user to use a GPLed 
software with any other software irrelevant of its license. 

I did not referred to the Pystar case, because it is exactly the same 
circumstances, however, I referred to it, because it is the closest case that 
I have watched that deals with this issue in a broader scope. 

> If you are in violation, then there are first requests to comply (e.g. make
> your work available under the GPL, or stop distributing your work, or seek
> a proprietary license from the copyright holder [if one is available]).
> Courts come after these requests for compliance fail to produce results.
> This is one reason why you don't see many GPL cases in court.
> 

Who violates the GPL if a theme without any code in it that is copied and 
pasted and is not distributed in conjunction with anything else, but it is use 
together only by the user? 

> Side note: This redistribution condition is why the GPL is not a suitable
> license to commercialize software (when selling copies is the only business
> model), because you will make money. The GPL does not forbid charging money
> at all, but you will only make the first sale, and then nothing after that,
> unless you are offering services.

I was not talking about redistribution. I was talking about distribution about 
independent elements that are used by the user in conjunction. In a side note, 
it is not commonly accepted by the legal community that a license is also a 
contract. I have seen arguments that have tried to make such a point. However, 
it is not clear that all the necessary elements for the formation of a 
contract can really be established. Therefore, it is not clear if any terms 
that reach out of the direct purpose of the particular license will ever be 
enforceable. 

The commercialization is a total different story. As long as the GPL exists, 
GPLed software has been successfully sold. Just look at linux distributions 
that sell CDs with GPL software on it. They do not do it only once. There can 
be many reasons why someone rather buys than downloads GPLed software. 
However, this is really not the point here.

The question that I find intriguing is if we believe or really want that a 
license can be binding outside its scope of purpose, or if we maybe think that 
the 4 freedoms expressed by Richard Stallman are universal rights in the sense 
of human rights. In the latter case, the license would be irrelevant anyway, 
since such rights than would be universal and applicable in any case. In the 
firsr case the question would be if copyright law is or should be applicable 
even if no copying is performed.

Ralph