I'm sorry, I've been busy and unable to get on the internet for a week or so. Fact of the matter is that the World Championship BBQ Festival comes first above all things. ;)
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Originally Posted by chipbennett  Evidence? Legal precedent?
Last I checked, the matter hadn't been resolved definitively.
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Where is the legal precedent that Automattic has a license claim on a custom image file, a CSS file, or a PHP file, simply because it is packaged as part of a WP theme? |
No matter is ever really resolved definitively until a court hears it. Nevertheless, the GPL is a solid legal document with a fair amount of court cases supporting it in many contexts. I invite you to ask the EFF or a qualified open-source attorney what they think of the matter.
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Originally Posted by chipbennett Please allow me to ask a few questions that I think refute your claim that there is no room for argument: - Custom image files often are part of WP themes. How can Automattic claim that a custom image file is a derivative work of WP?
- CSS files are part of WP themes. How can Automattic claim that a CSS file is a derivative work of WP?
- PHP files are part of WP themes. How can Automattic claim that a PHP file is inherently a derivative work of WP?
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I do not speak for Automattic, however:
1. Is the image part of the theme? Will the theme function properly without it? If it's part of the theme, and any of the rest of the theme is covered by GPL, then the image is too.
2. Ditto CSS, with the added bonus that CSS files must conform to a specification defined by WordPress that makes the file a "theme" in WordPress' eyes. Furthermore, there are (somewhat poorly defined) standards that must be included in a theme for WordPress to function properly with that theme. Naming conventions and such, basically.
3. PHP files included in a WordPress theme must necessarily make calls to internal WordPress functions in order to display the bits like posts, titles, so forth. These are so-called "deep" calls to WordPress' own functions, and force the PHP file to incur the licensing requirements. Look at it this way: if you use a GPL library in your conventional C++ program, then you must follow the guidelines of the GPL. This is, in fact, why the Lesser GPL (LGPL) was created originally, because of this "library" problem. In this same manner, WordPress is the library of functions that your theme is making calls to. Therefore, your theme must be GPL as well.
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Originally Posted by chipbennett Now, I question whether a CSS file or a PHP file can be copyrighted to begin with. |
Everything written can be copyrighted. This post, for example, falls under US Copyright Law (copyright 2009, me) by mere virtue of the fact that I wrote it. Your own post is copyrightten, in fact, and by quoting it, technically I am breaking copyright law. However, the fair use provisions allow me to quote it, since I am using it in the purposes of commentary and such.
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Originally Posted by chipbennett But certainly, custom images can by copyrighted - and I see no way that Automattic has a legal claim to impose the GPL upon such images, in any circumstance. |
Again, in what way do you determine that the images are seperate works from the theme itself? Are you
absolutely certain that a court would agree with you? Because I'm never absolutely certain what a court will do. ;)
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Originally Posted by chipbennett Those are just some examples. This issue is not cut-and-dry, black-and-white. |
True, in that the law is never cut-and-dry or black and white. It simply doesn't work that way.
However, there is a lot of very good reason to suspect that their license is not only valid, but also enforcable. There's a lot of good legal arguments backing it up, and not very many good
legal arguments against it.
Note: I am not a lawyer, this is not legal advice.
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Originally Posted by chipbennett Most of that, I have no problem with - though I do have a problem with the "or otherwise support" part. I'm absolutely cool with Automattic enforcing GPL compliance for all themes in the WP theme repository; however, I'm absolutely not cool with Automattic enforcing censorship of theme developers - which is exactly what the "two degrees of separation" policy does. (See the "your site links to themeforest.net" rejection, for example.)
Again, this is censorship - which I find disturbing at best, and hypocritical at worst, from an entity that claims to support the spirit - that is, freedom - of the GPL and open source philosophy. |
I fail to see it as "censorship". They're not actively blocking anybody from doing anything. They're just choosing who they will support and promote, and they're choosing the people that agree with them. That's not "censorship".
Plus, there is one almighty important fact here: wordpress.org is
their site. They can do as they like with it.
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Originally Posted by chipbennett I'm not so much worried about "getting around" the GPL. Rather, I'd like to see a conversation started on defining how far the GPL applies with respect to themes. (I think plugins can be treated as all-or-nothing derivative works.) |
As far as I'm concerned, it goes all the way. The GPL is a straightforwardly written document and the intent is extremely clear. Free software is its goal.
Okay, so "themes must be GPL, period" is more of a declarative statement than a conversation, but I don't see any room at all to bend on this one.
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Originally Posted by chipbennett I'm purposefully avoiding use of the term "distribute".
Mere interaction certainly does not transfer a copy, to be sure. However, a copy can be transferred, in that a copy of a CSS file can be downloaded by the person viewing the web site.
So, I don't understand how, if a user does download a copy of a CSS file served, that said CSS file hasn't been conveyed. |
We're talking about legal aspects here, and the law is not as technical as computers and computer users are. The law is flexible. Intent matters.
The mere act of transferring the CSS file to a users browser is different than transferring them a copy of the theme for use on their own website. Even if there's no actual technical difference between the files, the intent is different, and in the eyes of the legal system, that difference matters.