Thesis's Chris Pearson vs WordPress' Matt Mullenweg - The world cup of GPL

[chipbennett]

Chip, regarding code v functioncall.

If I take the ENTIRE function code, from WordPress source, copy it to my theme and rename it ipstenu_foobar() and use THAT function, I have taken code. I'm not talking about calling the function, I'm talking about duplicating it with a new name. Which per Andrea's link is exactly what they've done.

(Mind you I find it hilarious that Cute Overload uses Thesis AND is a VIP hosted site at WordPress.com)

Ok, then we're on the same page. :)

[Ryan]

Based on comments on his personal blog, it looks more and more likely that Matt is going to take Chris to court. This is going to get extremely interesting if he does :)

Fingers crossed that Matt actually wins though, or the shit is really going to hit the fan! A lot of people are simply writing GPL code because they feel they have to, but if Matt fails, those same people may decide to release it under a restrictive license and that will suck for all of us.

I wish no one had found those directly copied lines of code though as it ruins the real issue at hand, which is whether direct function calls are considered to cause a violation of the GPL license or not.

[WraithKenny]

2) If invoking a function call constituted a derivative work, then every API in existence would cause any application that makes use of the API a derivative. I wrote a plugin that calls a Twitter API script. Is my plugin now a derivative of Twitter? (Clearly, no.)

The Twitter API has a license that grants you permission to use the API as long as you don't violate the license, but they specifically own derivative works.

Section V. OTHER LEGAL TERMS:
3. Ownership; Feedback.:

3.1 Twitter. You expressly acknowledge that Twitter and its end users retain all worldwide right, title and interest in and to the Twitter Content, including all intellectual property rights therein. You also acknowledge that as between you and Twitter, Twitter owns all right, title and interest in and to the Twitter API, Twitter Marks, and the Twitter service (and any derivative works or enhancements thereof), including but not limited to all intellectual property rights therein. You agree not to do anything inconsistent with such ownership. Any rights not expressly granted herein are withheld. You agree that you will not challenge Twitter’s ownership of, the validity of any license to use, or otherwise copy or exploit the Twitter Marks during or after the termination of this agreement except as specifically authorized herein. If you acquire any rights in the Twitter Marks or any confusingly similar marks, by operation of law or otherwise, you will, at no expense to Twitter, immediately assign such rights to Twitter.

3.2 You. As between you and Twitter, you retain all worldwide right, title and interest in and to your Service, excluding the Twitter API, Twitter Marks, and the Twitter Service (and any derivative works or enhancements thereof), including but not limited to all intellectual property rights therein. You may provide Twitter with comments concerning the Twitter Content or Twitter API or your evaluation and use thereof. You agree that Twitter and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense, incorporate, and otherwise use the feedback, including derivative works thereto, for any and all commercial and non-commercial purposes with no obligation of any kind to you.

[WraithKenny]

Fanfiction comparisons are problematic too, (http://en.wikipedia.org/wiki/Legal_i...th_fan_fiction) and is itself based on Fair Use (http://en.wikipedia.org/wiki/Fair_use) which is also problematic. It'd hard to argue that a software's purpose or function is "for commentary, criticism, news reporting, research, teaching or scholarship."

Interesting read: http://en.wikipedia.org/wiki/Fair_us...understandings some of which is:
Amount of copying (under 300 words or the whole work) isn't that important,
Commercial use hurts Fair Use claims, but commercial parody is OK (doubtful a Thesis defense could prove a theme is a parody, but a Thesis-Like theme that got shut down resently could, or as fan-fiction if that's workable.)

Also, a fair use defense rests on the defendant to prove.

Or the Law itself,

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Also, derivatives don't need to copy verbatim to infringe. "[S]uperficially modifying information from another source" is infringement. That's why we have "Clean Room Design" usually to document proof for use in expected law suits, which likely hasn't happened in the case of theme design. Reading the source code of WordPress or any GPL theme, then implementing a theme with that learning in mind is probably derivative and remember the burden is on the defendant to prove fair use in that case.

[Ipstenu]

Chip, I thought we were :)

The question, as I see it here, is not about fair use but, simply, what makes a work derivative. And on that alone, there's no good answer for software. Don't muddle up fair use into this just yet, since that won't matter until we lock down if a theme is derivative.

Now, fair use for a theme, assuming it is a derivative work, would be weird. They look at the whole picture. Why did you use the code, what code did you take, did you follow the copyright of the source, did they ALLOW you to do this, etc etc. The funny thing is, I'm pretty sure that if Chris made Thesis GPL, he'd be fine so far as a fair use argument went. Or rather, the argument would be dismissed, since under GPL, he's permitted to use WordPress.

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship.

This is why, by the way, none of us could be successfully sued for using Thesis to create our own theme or posting code bits to prove Thesis took WordPress functions and such whole hog.

Question though. If I make a theme and only put it up on my website, I don't have to make it GPL, or rather, it IS GPL, but I don't HAVE to release it. Right?

[Rarst]

If I make a theme and only put it up on my website, I don't have to make it GPL, or rather, it IS GPL, but I don't HAVE to release it. Right?

It neither has to be GPL or to be released. GPL kicks in as soon as you start distributing, before that you do whatever you want with it.

[Ipstenu]

What constitutes distribution then? If I built a theme for a client, does that have to be GPL or does that not count as distribution?

I think I'm wandering off on a different track now.

[Rarst]

What constitutes distribution then? If I built a theme for a client, does that have to be GPL or does that not count as distribution?

I think for-hire development does not count as distribution, but not sure where line goes. Your client putting code up for public download would instantly become distribution. Your client privately giving code to third party - not sure, but likely distribution as well.

Correction. Did quick lookup. http://blog.tabini.ca/2010/07/wordpr...erries-on-top/

Seems that distribution does not count as long as same party has copyright to code and uses it. So if you make theme for client but retain copyright for yourself - distribution. If client gets copyright - not distribution until he transfers code.

[chipbennett]

Fanfiction comparisons are problematic too, (http://en.wikipedia.org/wiki/Legal_i...th_fan_fiction) and is itself based on Fair Use (http://en.wikipedia.org/wiki/Fair_use) which is also problematic. It'd hard to argue that a software's purpose or function is "for commentary, criticism, news reporting, research, teaching or scholarship."

Interesting read: http://en.wikipedia.org/wiki/Fair_us...understandings some of which is:
Amount of copying (under 300 words or the whole work) isn't that important,
Commercial use hurts Fair Use claims, but commercial parody is OK (doubtful a Thesis defense could prove a theme is a parody, but a Thesis-Like theme that got shut down resently could, or as fan-fiction if that's workable.)

Also, a fair use defense rests on the defendant to prove.

Or the Law itself,

Also, derivatives don't need to copy verbatim to infringe. "[S]uperficially modifying information from another source" is infringement. That's why we have "Clean Room Design" usually to document proof for use in expected law suits, which likely hasn't happened in the case of theme design. Reading the source code of WordPress or any GPL theme, then implementing a theme with that learning in mind is probably derivative and remember the burden is on the defendant to prove fair use in that case.

Just to clarify: I don't think a fair-use defense in this case would be by any means easy, or a slam-dunk. These are all untested waters, and I would imagine that a fair-use defense in such a landmark case would require a particularly strong argument.

Here's what the US Copyright Office has to say:

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
5. The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

I don't think a fair-use defense will be at all easy - not by any means.

[chipbennett]

Chip, I thought we were :)

The question, as I see it here, is not about fair use but, simply, what makes a work derivative. And on that alone, there's no good answer for software. Don't muddle up fair use into this just yet, since that won't matter until we lock down if a theme is derivative.

But the Thesis issue ceased being potentially determinant regarding the issue of GPL inheritance of themes (by virtue of WP function calls only) the moment we learned that Thesis includes verbatim and modified core WP code.

Thus, Thesis has a bigger problem, as there is no question that it is derivative if it does, in fact, have core WP code.

Now, fair use for a theme, assuming it is a derivative work, would be weird. They look at the whole picture. Why did you use the code, what code did you take, did you follow the copyright of the source, did they ALLOW you to do this, etc etc. The funny thing is, I'm pretty sure that if Chris made Thesis GPL, he'd be fine so far as a fair use argument went. Or rather, the argument would be dismissed, since under GPL, he's permitted to use WordPress.

Oh yes, it would be a very difficult defense to make successfully. I completely agree.

This is why, by the way, none of us could be successfully sued for using Thesis to create our own theme or posting code bits to prove Thesis took WordPress functions and such whole hog.

Question though. If I make a theme and only put it up on my website, I don't have to make it GPL, or rather, it IS GPL, but I don't HAVE to release it. Right?

It is not GPL unless you license it as GPL.

If you don't distribute your work, inheritance of WordPress' GPL does not apply to your work.

If your work is derivative of WordPress, you cannot release it under a non-GPL-compatible license, without violating WordPress' license.