Mark Jaquith's GPL blog post

[chipbennett]

Yikes, that's one heck of an article Chip. How much time did you spend working on that?

I started on it Thursday, spent most of my weekend free time, plus last night. A LOT of time. Probably too much. :)

As soon as a bunch of legal mumbo jumbo pops up my eyes glaze over. What you wrote seems to make sense though and mostly corresponds with what I've heard from legal experts previously.

I wonder how many people are going to jump on you as an anti-GPL leach now? Stupid people abound on the interwebz and I'm sure some of them will skip your intro. pointing out that you are actually a proponent of the GPL and that this is just a debate about the legal side of things, nothing to do with morals or ethics.

I really hope people don't skip the intro - but if they jump on me as anti-GPL then I'll know how much stock to place in their opinion.

The ironic thing is, shouldn't my position - in which I use GPL not because I believe I am compelled to do so, but because I choose to do so - be favored over the position of those who might use it merely because they believe they have to?

But, yes: I wanted to make it clear that I'm not anti-GPL. This research doesn't induce me to decide not to use GPL. Honestly, I'm hoping it will (eventually) help move the community past the divisive debate.

[Ryan]

... shouldn't my position - in which I use GPL not because I believe I am compelled to do so, but because I choose to do so - be favored over the position of those who might use it merely because they believe they have to?

Yes.

I'm in the same boat. I've intentionally done everything in a GPL friendly way since the beginning (aside from a theme I released years ago which was free of cost, but non-GPL). However that doesn't necessarily mean I believe that I need to be from a legal standpoint. I'm still somewhat on the fence, although have been clearly leaning more towards your side of the argument for quite a long time now. Mark Jaquith's blog post moved m a smidgeon closer to the other way of thinking, but not by a whole lot.

[WraithKenny]

Great article Chip, well researched and thought out, well done! (I still disagree, and I hope to write a response to it explaining why I'm not convinced, but your article is rather difficult to argue with ;-) )

My concern is summed up with your sentiment, "shouldn't my position - in which I use GPL not because I believe I am compelled to do so, but because I choose to do so - be favored over the position of those who might use it merely because they believe they have to?"

Unfortunately, I do believe the strength and value of the GPL is tied to it's compelling nature. I think that those of us that choose it (when well informed of what it means), understand the decision well enough to realize that continuing the development of GPL code enters our contributions to be licensed under the GPL perpetually and indefinitely, and this is specifically why we choose it. Specifically, so that our code can be modified by others, but only if they agree to let others do the same. It's that specific restriction that defines the GPL. If that restriction has no strength, what is the value of GPL? Would it not be the same as relinquishing our copyright into the public domain? The recognition that we actually have to release our code GPL when we derive it from GPL is why we start from GPL. The compulsion is why we choose it in the first place. I don't think we can distinguish between "those who choose" and "those compelled" (at least among those who understand it). It's just way too metaphysical ;-).

[chipbennett]

Great article Chip, well researched and thought out, well done! (I still disagree, and I hope to write a response to it explaining why I'm not convinced, but your article is rather difficult to argue with ;-) )

I'll look forward to reading it. Le me know when you've gotten it put together.

My concern is summed up with your sentiment, "shouldn't my position - in which I use GPL not because I believe I am compelled to do so, but because I choose to do so - be favored over the position of those who might use it merely because they believe they have to?"

Unfortunately, I do believe the strength and value of the GPL is tied to it's compelling nature. I think that those of us that choose it (when well informed of what it means), understand the decision well enough to realize that continuing the development of GPL code enters our contributions to be licensed under the GPL perpetually and indefinitely, and this is specifically why we choose it. Specifically, so that our code can be modified by others, but only if they agree to let others do the same. It's that specific restriction that defines the GPL. If that restriction has no strength, what is the value of GPL? Would it not be the same as relinquishing our copyright into the public domain?

The conclusion that I seem to be coming to is that Stallman was short-sighted when he first wrote the GPL, because he chose insufficient statutory backing for what he wanted to implement.

Copyright law just doesn't give him sufficient support, due to its limitations (and, especially, due to his explicit exclusion of non-distribution activities from the scope of the license). He really needed to use more general contract law, or patent law. Or, he needed to include other activities, such as combination or compilation, in the scope of the license. Combinations and compilations, under copyright law, are expressly distinct entities from derivatives. But the way the license is written, they are excluded from its scope.

That's why my post focused entirely on what the Act and case law have to say with respect to derivative works. I can't find any way to shoehorn a WordPress plugin or theme into being inherently a derivative work (unless such work contains copy/pasted functional code), based on applicable case law. Combination? Absolutely (at run-time). But combinative works are outside the scope of GPL.

And that's really the crux of my issue with the entire debate: I understand (and, within limits, agree with) the "spirit" argument, but can find insufficient legal basis upon which to enforce that spirit. I don't like the community-splintering and de facto bullying campaigns. I think they're more harmful than a few people exercising their legal right to license their works as they choose. Though I'm certainly not advocating for people to license WordPress-related works under non-GPL licenses, I don't think it is beneficial to treat those who do as utter outcasts (and worse: lawbreakers).

All that to say: as a community, we should keep up the ideological arguments and persuasion to bring people around to operating under the license and philosophy of GPL; but drop the legal arguments (and threats).

The recognition that we actually have to release our code GPL when we derive it from GPL is why we start from GPL. The compulsion is why we choose it in the first place. I don't think we can distinguish between "those who choose" and "those compelled" (at least among those who understand it). It's just way too metaphysical ;-).

That's the thing though: if it's not actually derivative (which I believe to be the case for WordPress Themes and Plugins), then no such compulsion exists - in which case, the only remaining compulsions are philosophical/ideological agreement and community strong-arming.

The former, I believe to be beneficial to the community; the latter, on the other hand, I believe to be (long-term) detrimental to the community. It is that long-term detriment to the community that compels me to speak up about the issue.

(And, I don't think strong-arm and unsubstantiated legal arguments are necessary. I believe that Themes/Plugins are original works, for which their developers hold full ownership and copyright - and yet, I was personally convinced that I should license my own such works under GPL, as an act of contribution/retribution for the benefits I have received from WordPress and the WordPress community. I think others can be likewise convinced.)