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The #thesiswp Controversy: WordPress, Themes and the GPL

It’s not that there’s any shortage of opinions on the #thesiswp debacle: just ask Twitter. But as many as I’ve read, though, no one distilled it down to what I would consider the essence of the matter.

There are really only two interesting questions here as far as I’m concerned. Does Thesis have the right to not adhere to the terms of the GPL? And independent of that question, does it make business sense for them to not adhere to the license?

In an attempt to answer those, I give you the the following commentary, in the usual Q&A format.

Q: Before we begin, do you have anything to disclose?
A: Yes indeed. It’s well known that WordPress powers RedMonk.com and each of our individual blogs, and that we’re believers in the software and the community. I also know Matt and other authors of the software, have spoken at two WordCamps and generally support the software where we can. As for Thesis, one of our blogs – Greenmonk – runs the theme, but I do not know nor have I spoken to Chris Pearson, its author.

That should about cover it.

Q: For those that haven’t followed the controversy, what’s the story?
A: At the core, this is actually a simple issue: Matt Mullenweg and the WordPress community believe that the GPL license that governs the software itself applies to themes. Pearson, and selected other theme authors, do not agree.

Q: Who’s right?
A: Candidly, that’s probably a question for the lawyers, should one or the other of the parties choose to get them involved. Matt’s asked the SFLC for guidance on this issue previously, and their considered opinion – based on the evaluation of specific but unspecified example themes – is that themes are indeed derivative works, and therefore subject to the restrictions imposed by the GPL.

It is our opinion that the themes presented, and any that are substantially similar, contain elements that are derivative works of the WordPress software as well as elements that are potentially separate works. Specifically, the CSS files and material contained in the images directory of the “default” theme are works separate from the WordPress code. On the other hand, the PHP and HTML code that is intermingled with and operated on by PHP the code derives from the WordPress code.

Pretty cut and dried, you’d think.

But as with many things in technology, reasonable minds may disagree. Some bright people that I respect take exception to the idea that a mere theme constitutes a derivative work as defined by the GPL. And they may be right.

Q: What do you think?
A: I think, frankly, that the only people who can actually answer the question wear black robes and sit on benches, so my opinion isn’t worth much here. It seems self-evident to me that comparisons to things like Flash are not relevant, because themes such as Thesis are purpose built for the WordPress platform, unlike Adobe’s multimedia runtime or even alternatives such as Silverlight. And it’s certainly true that if this analysis is accurate, and Thesis is actually copying code from WordPress, the discussion is over: they must comply.

Assuming for the sake of argument that the latter contention is either not true or overblown, however, there are undoubtedly legitimate questions about what – precisely – constitutes a derivative work. Does a mere function call imply a derivative work? It’s a very fine line. But frankly, that discussion, while interesting from an academic perspective to licensing wonks, isn’t terribly relevant from a practical perspective.

Q: Why not?
A: With questions of law, there are important considerations vis-a-vis precedent. Namely, in this case, what precedent is set should themes be determined to be a derivative work, or the reverse. But legal is only one aspect to this case, and until we have a ruling, it’s all pretty much opinion. Even if that opinion comes from the lawyers at the SFLC.

In the absence of a definitive statement from the courts one way or another, the better questions for the non-lawyers, in my view, revolve around the practical implications. Forget the legal end for a moment: what does this controversy actually mean from a business perspective?

Q: Well, what does it mean? And for whom?
A: Let’s look at this from the perspective of the Thesis designers. There’s been some speculation that this debate and the passion with which the WordPress community has prosecuted their arguments will damage the WordPress brand, but I personally doubt that. First, the brand is enormous. As long as that’s the case, there are going to be plenty of designers and developers catering to it, even if the Thesis controversy raises questions in their minds about the WordPress philosophy. Second, for better or for worse, Matt and his supporters are arguing for something that is at least perceived to be in the average user’s best interest. And third, as big as this debate is to those of us in the industry, it’s likely to be as big as a microchip, to quote Dr. Peter Venkman, to everyone else.

So when we talk about the implications here, what we’re really talking about are the implications for the Thesis theme and other designers that choose not to make their themes available under the GPL.

Q: So is this good or bad for Thesis?
A: The conventional wisdom says that any publicity is good publicity, and I’m sure that the visibility bump for Thesis will result in some additional sales. But it’s not likely that the theoretical additional sales will offset the reputational and brand damage inflicted by this public debate. What’s worse is that it’s not clear that it’s even necessary.

Q: Why would it not be necessary? If the theme is available under the GPL, couldn’t everybody get it for free? And redistribute it for free?
A: Yes and no. Yes, if the GPL was applied to the Thesis theme, the source must be available under the same terms as the WordPress code. But just as with GPL licensed assets such as Red Hat Enterprise Linux, copyright and trademark restrictions would still apply. In practical terms this means that I would legally be prevented from taking Thesis and reselling it using that name or the CSS and image assets associated with the theme. I could take the code, craft my own version and resell that under a different name, but I can’t simply turn around and resell Thesis.

A subtle distinction, to be sure, but an important one from a business perspective. One of the common misconceptions of open source assets is that there are no protections available to those who would commercialize them. This notion is unsupported by the facts: the vendor landscape is rife with entities who commercialize assets with even fewer protections than the GPL that governs WordPress affords.

Q: So you believe that Thesis could still be effectively monetized even if it were made available under the GPL?
A: Not knowing their business, I cannot say definitely one way or another. What I can say is that there is no evidence to indicate that GPL software in general cannot be effectively commercialized, nor that themes specifically are so unique as to pose insurmountable problems from a commercial perspective. So opposing the GPL on the basis that it’s an obstacle to making money is, to me, an unsupportable argument.

Q: But isn’t the argument not that Thesis couldn’t make money, but that it would make significantly less money?
A: That’s one of the arguments, certainly. And it’s not hard to build a case that says that a significant enough subset of users would search for free, GPL’d versions of the Thesis theme rather than pay the license fee that revenues would be negatively impacted.

But neither is it difficult to build a case which says the opposite; that the application of the GPL license would actually improve the business theme. Consider the primary strength of open source software from a non-development perspective: distribution. Open source software is generally much more widely adopted than commercial, gated versions of the same software. So it seems likely that Thesis would become more widely adopted than it is today.

Q: Why would an average user pay for something they can get for free?
A: First, we’re probably not talking about average users here. We’re talking about users who are currently paying a minimum of $87 for the theme. That’s not only a bit rich for a quote unquote average user, it probably involves significantly more technology than they’re used to and/or comfortable with. The current addressable market for Thesis, then, is significantly narrower than the WordPress market as a whole, because the pricing and implementation act as dual throttles for adoption.

But from that subset of users, why would they pay for something they can get for free? Some wouldn’t, it’s true. But many would for streamlined access to upgrades and enhancements, quality support for custom installs and a host of other reasons. There are many potential upsell opportunities around a WordPress theme. Many more than we see for other open source businesses, candidly.

This would be a different looking business, clearly, than one currently defended by DIYThemes, but – at least potentially – a bigger and more profitable one.

Q: But what if the Thesis folks are right, and themes are not derivative works?
A: Whether they’re right or wrong on the GPL theme issue is besides the point, I think. We can say pretty definitively based on the public debate thus far that there are significantly more people that disagree with the Thesis designer’s perspective than agree with it, and a majority of the WordPress community is a sizable volume of people.

WordPress may not be a democracy in the traditional sense, but there is something to be said for respecting the customs of the community. Whether or not themes are in a legal sense derivative works, the community clearly believes they are. So while you can flout this opinion for some time, as has been done to date, this is not a position that is indefinitely sustainable.

Q: Why isn’t is sustainable? Why should it matter what the community thinks?
A: Break it down into probable outcomes:

  • The Status Quo remains:
    You lose business either because people disagree with you philosophically or because the uncertainty jeopardizes their confidence in the offering longer term.
  • You’re proven correct in a court of law, and themes are not derivative works:
    Great. Now you’re the bad guy.
  • You’re overruled in a court of law, and themes are derivative works:
    You are forced to make the adjustments on the court’s terms rather than your own.

I am not a theme designer, granted, but from my perspective none of those outcomes are a positive. Given these options, what is the pragmatic approach? Fighting what you believe to be the good fight, or living the “when in Rome” dictum? I know what I’d choose.

Q: So you’re view in short is what?
A: Does a theme have to be GPL? Legally? Maybe. Maybe not. But practically? Probably.

Q: Is that fair?
A: Well, as my Mom always told me growing up, life isn’t fair. But to answer the question, it’s not as if the WordPress folks are inconsistent here: this has been their position on the issue for years. Nor are they asking for something they’re not personally willing to practice. They believe those who build on top of the platform should adhere to the same code of conduct, as it were. Many – those with an Apache view of software freedom, for example – won’t care for that. But it’s tough to build the case that it’s substantially unfair.

Categories: licensing, Open Source.

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