"Pirated themes" - How to deal with Non-GPL Sourcecode (e.g. in Themes)

[hakre]

Let's consider a scenario in which WordPress Foundation sues a third-party developer for bundling a non-GPL extension (plugin or theme) with WordPress, and distributing that bundle: let's say that the court rules in WPF's favor.

What happens to all of those distributed WordPress + non-GPL extension bundles?

Marginal Note: Bundle is a misleading term here, because if that would be a bundle of two programs, the court could never have ruled so.

At the very least, the court would determine that those to whom they had been distributed would retain full rights granted by GPL for the WordPress codebase itself - regardless of what the court rules regarding the improperly distributed, non-GPL extension.

And as long as this Software (GPL-code + modification) is used as a whole, for the GPL-Part all usage-rights are terminated (Full Rights are No Rights in that scenario !). That's something I miss written clearly for this scenario. Please keep in mind that the GPL needs the user to retain full compliance with all parties for the GPL-code in case of a mix as well, otherwise termination still applies.

And what of the third-party developer? I contend that the court would rule that the third-party developer has no right to distribute the non-GPL extension bundled with WordPress - that he can distribute WordPress, and that he can distribute the non-GPL extension, but that he cannot distribute both bundled together. Thus, the remedy would not be to prevent the developer from distributing WordPress, but rather to remove the non-GPL extension from the distributed bundle.

Well I can't go full with this. The court will rule that he can not distribute the non-GPL extension if the author has not enough rights to distribute it. So if the Non-GPL-Extension is a derivate of GPL-Code, the court would rule, that the can not distribute the non-GPL extension.

Because if you move from "one work" to "two works" in your scenario, you need to analyse both on their own. In your example, the court would rule as well, that as long as the Non-GPL-Extension is a GPL-Code derivate (as we defined it for WP addons for our scenarios), rights to distribution are not given for the author as well.

As I see it, the end-user is left with a fully GPL-licensed copy of WordPress, and an ambiguously licensed copy of a non-GPL extension.

Well one of the both - the user or the author - must create the new work in use. So you can not just assume that all the time these are two works that never get mixed - because they will get mixed. And because of the mix, rights need to be properly checked (is there a right to mix, do licenses of the parts might bite themselves? etc. pp. - in a licensing sense, which means if you have a user who is really caring about that, for example because it's a company who wants to use that stuff for business).

So it is not only ambiguously licensed, but that extension is clearly an unauthorized copy. The author can not create and then distributes derivates of something, he has not the rights for.

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And now I need to put this scenario apart to bring this down to earth :

Let's consider a scenario in which WordPress Foundation sues a third-party developer for bundling a non-GPL extension (plugin or theme) with WordPress, and distributing that bundle: let's say that the court rules in WPF's favor.

The court would at first check the WPFs for having proper rights to act for the Wordpress codebase as the copyright holder. The sued party would question that. And then the WPF would need to proof the copyright holdership which they just can not (in my opinion).

Because the lawyer of the WPF would knew that upfront, the WPF will never go into court. I think this is highly likely what will happen.

Next to that, such a lawsuit would threaten the licensing of Wordpress as well. If there are problems to proof authorship (well authorship would be relativly easy, but copyright ownership is what is hurting here 2b precise) of the work in whole, there are problems to argument why a certain license (regardless which one) would apply to the Wordpress codebase. In the end I think a court will suggest that GPL does apply (as by it's terms and because it has been shipped all the time), but the court will also rule, that the WPF needs to do the homework and finish the full IP clearance process. That's a lot to do with an uncertain outcome, because when the IP clearance is over, this will continue. Only the court's suggestion that GPL applies does not mean, that WPF can sue for proper application of it in this case.

So next to the highly likely incident that the WPF will loose the lawsuit, there is a certain risk, that it would question the whole licensing model of the product.

And this is for .org only. Imagine what this implication would have for .com then.

There is a business rule for startups: Prevent lawsuits. And that's a good rule of thumb.

[hakre]

In the end, the difference here is critical. In my opinion, an extension can still be a derivative work of a particular codebase, while at the same time that codebase remains entirely intact and unmodified from its original form. In fact, I believe this point to be part of the defining characteristics of an extension to a codebase, as opposed to a fork of a codebase.

Well I know that you want to seperate (I would even say split apart) the GPL-Codebase and it's Extension, but always there is one common root and there is always a point where both get mixed again and form a work on their own.

You say it yourself: "an extension can still be a derivative work of a particular codebase, while at the same time that codebase remains entirely intact and unmodified from its original form". You put base and derivate apart but even while you do this, the derivate is still based on the base code. Restrictions apply for the derivate on it's own as well anyway.

at this point, we might have already strayed WAY outside of the original topic.

We need to create some groundwork on which to give proper suggestions, so I think it's somehow valid.

Generally spoken it's easy to say: Educate users, that if they need to take care, they should properly check what they use as software and if they are able to use it together. Because it's highly likely, especially with Non-GPL-compatible-licensed-Wordpress-Extensions, that they not only loose usage-rights on the extension but that an uncertain licensing situation can threaten the usage-rights on the whole work. It's not grave, they most often can easily recover from that situation by simply removing the usage-right threatening parts, but that could mean, they loose the theme or plugin they just bought.

So: It's adviseable to work together with those Theme and Plugin authors, who not only put the code under a GPL compatible license but as well clearly educate their users upfront, which rights they have with those pieces of free software.

[WraithKenny]

Just went and read the GPL again as this discussion (about "use" and "end-user") brings up an interesting point:

If under the GPL, "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted [by the GPL license]..." then secondary licensing can be written to preclude running the software without purchasing say a monthly license to run the software, correct?

The customer of such software can "copy", "distribute", and "modify" to their hearts content, but not run it! Seems untenable. Perhaps the interpretation of how GPL affects rights as to using the software is wrong...

[WraithKenny]

The fun parts of the license are:

"4. You may not copy, modify, sublicense, or distribute the Program
except as expressly provided under this License. Any attempt
otherwise to copy, modify, sublicense or distribute the Program is
void, and will automatically terminate your rights under this License.
However, parties who have received copies, or rights, from you under
this License will not have their licenses terminated so long as such
parties remain in full compliance."

Basically, Abide by the GPL or you don't have rights. Anyone who got the code from you can preserve their rights if they abide by the GPL. So infringers don't affected their customers.

"5. You are not required to accept this License, since you have not
signed it. However, nothing else grants you permission to modify or
distribute the Program or its derivative works. These actions are
prohibited by law if you do not accept this License. Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so, and
all its terms and conditions for copying, distributing or modifying
the Program or works based on it."

Copying, distributing, and modifying GPL code is only legal if you accept the GPL agreement, and the code is therefor GPL.

"6. Each time you redistribute the Program (or any work based on the
Program), the recipient automatically receives a license from the
original licensor to copy, distribute or modify the Program subject to
these terms and conditions. You may not impose any further
restrictions on the recipients' exercise of the rights granted herein.
You are not responsible for enforcing compliance by third parties to
this License."

The derived/modified/copied code is licensed GPL by the original licensor, not you. You can't change it.

[hakre]

The fun parts of the license are:

"4. You may not copy, modify, sublicense, or distribute the Program
except as expressly provided under this License. Any attempt
otherwise to copy, modify, sublicense or distribute the Program is
void, and will automatically terminate your rights under this License.
However, parties who have received copies, or rights, from you under
this License will not have their licenses terminated so long as such
parties remain in full compliance."

Basically, Abide by the GPL or you don't have rights. Anyone who got the code from you can preserve their rights if they abide by the GPL. So infringers don't affected their customers.

Sure there are tons of thoughtable cases based on 4. on which the interaction of customer and infringer let even become the customer a not-full-compliant-derivate-user or even an infringer on his own as well and therefore loosing full compliance and all the usage rights with that - license wise. In reality I doubt that an end-user who does not interact with any further party then the infringer will sue her or himself.

So the statement you highlighted in bold is only true as long as the customer remains in full compliance. Keep that in mind. This is the emergency exit in the GPL so that a developer's ones created GPL code (e.g. wordpress) can not be kidnapped from the view point of the end-user by infringer's actions with the end-user after the end-user re-establishes full compliance with the GPL (e.g. by not creating a wordpress derivate by mixing it with incompatible licensed third-party code, e.g. non GPL-compatible licensed themes PHP code).

This termination of the license as well as the re-establishment on compliance is in the license to protect the original code. It's helpful to see the viewpoint from the original developer.

"5. You are not required to accept this License, since you have not
signed it. However, nothing else grants you permission to modify or
distribute the Program or its derivative works. These actions are
prohibited by law if you do not accept this License. Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so, and
all its terms and conditions for copying, distributing or modifying
the Program or works based on it."

Copying, distributing, and modifying GPL code is only legal if you accept the GPL agreement, and the code is therefor GPL.

"6. Each time you redistribute the Program (or any work based on the
Program), the recipient automatically receives a license from the
original licensor to copy, distribute or modify the Program subject to
these terms and conditions. You may not impose any further
restrictions on the recipients' exercise of the rights granted herein.
You are not responsible for enforcing compliance by third parties to
this License."

The derived/modified/copied code is licensed GPL by the original licensor, not you. You can't change it.

And that's what basically comes into play when someone creates an extension of wordpress that get's passed on some day - be it a theme or plugin or just some php files. That easy it is. To understand the discussion in the community it's more wise to see the interest by those who try to find a way to circumvent the original developers license of which - as 5. and 6. point out - is to be a) accepted and b) passed on as long as you create something on top of it. Basically this is very simple.

To impose further restrictions, e.g. to restrict usage rights on a derivate like a theme, is not possible w/o loosing GPL rights on the full work - regardless who compiles it. Or in other terms: If the end-user compiles a work w/o proper licensing, the end-user looses.

[hakre]

Just went and read the GPL again as this discussion (about "use" and "end-user") brings up an interesting point:

If under the GPL, "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted [by the GPL license]..." then secondary licensing can be written to preclude running the software without purchasing say a monthly license to run the software, correct?

The customer of such software can "copy", "distribute", and "modify" to their hearts content, but not run it! Seems untenable. Perhaps the interpretation of how GPL affects rights as to using the software is wrong...

I think you misinterpret that scope part. It's in there to define scope, e.g. like to say it's okay to take money for distributing free software, a statement that you find in the license as well which defines the scope for commercialization.

Keep in mind that from a copyright perspective, the rights of copying, distribution and modifying are one of the higher / more important (and therefore often read as most "valuable") rights an author can give on a work. It means pretty much everything. For example, a derivate's author just does not want you to allow to pass on the extension he wrote (copying; distribution) or even forbids you to make changes (modification).

The standard use of a copyrighted work is defined by the type of work. In a licensing sense / in copyright, there is no such thing as "run", it's more spoken about use and the types of use. So we have the basic / simplest type of use to run a software program which is the standard way of using a software work. What do you do with a picture - you look to it. What do you do with a software program - you run it. So this is the most basic form of use. But what comes to those use prior you are able to do so? You need to have the right/be able licensing wise to copy the picture over to yourself. Like downloading a picture from a photo-website so that your browser is able to display it in a website or like the download of the wordpress zip package.

Traditionally those rights to copy are restricted, e.g. you buy a magazine and you're allowed to look into the pictures in that magazine, but you're not allow to create copies of those pictures to create a magazine on your own.

The GPL defines the scope only to these most obvious and most strong rights you need to have to ensure software freedom. It does not restrict that any further, let's say that you're able to take money and that money must be in YEN currency or your contractor must be Usbekian.

[WraithKenny]

Thanks Hakre, yes, my comments on 4, 5, and 6 were meant to point out that your license and rights are not revoked by the behavior of the person you received the copy from, only by your own compliance to the license. From your comment I see that perhaps its your duty to remove offending code to stay compliant and retain your rights if someone adds non-GPL code in to the program. Thanks for that knowledge :-)