The debate I wrote about a few days ago over whether or not the WordPress theme called Thesis needed to be GPLed has been resolved in practice – it will be. More precisely, the parts that WordPress developers and the Free Software Foundation said need to be GPLed will be GPLed, while the rest won’t be, those parts being, in essence, the more “artistic” elements.
A consensus seems to have emerged that Thesis had actually copied beyond-fair-use amounts of WordPress code, which if true was Game Over. Beyond that, however, both sides of the strongly-viral-GPL debate scored some points.
- Public pressure, FUD, etc. in favor of the GPL clearly were successful.
- Mark Aquith carefully explained how tightly integrated WordPress and WordPress themes are. So we don’t necessarily have much of a precedent for more hands-off integration.
- Previous precedents were dredged up on both sides. More on that below.
- Once again, the claims about the GPL were not tested in court. Various open source developers and lawyers have stated their opinions as to what their rights are, but the courts were not given the opportunity in this case to (dis)agree on the core issue …
- … which everybody seems to be correctly agreeing is: “When is one software program a ‘derivative work’ of another one, in the copyright-law sense of ‘derivative work’?”
The pro-GPL argument on that last point would probably boil down, colloquially, to “Well, is it one program or two? If it’s one, then it clearly is derivative from the big part that’s copyrighted under the GPL. If it’s two, then the creator of the second one is home free — but c’mon, now, it’s really just one.” That, in turn, would be supported by Dan Weinreb’s point from a previous MySQL storage engine/GPL comment thread (which also has a lot of applicability to the WordPress theme case) – you really don’t want to make the user do two installs, so you really do want to include the GPLed code in your package. And by the way — so far the product packaging by the MySQL storage engine vendors* is in line with Dan’s observation.
*Infobright, Akiban, Tokutek, Calpont, et al.
One point I haven’t seen discussed much yet is this:
Suppose a MySQL storage engine vendor integrated with a forked, GPLed MySQL, and then didn’t obey the GPL. Who would have standing to sue them? It’s obvious that the developers of the forked MySQL would. But it’s not at all obvious that Oracle would. A derivative of a derivative of a copyrighted work is NOT necessarily a derivative of the original. (Think about it.) Unless Oracle could prove that the MySQL storage engine really did happen to be a derivative of MySQL Classic, I don’t know why Boogeyman Oracle would have standing to sue.
Finally, those precedents.
- A couple of comments on my earlier post point out that the Linux community tends to be pretty tolerant of proprietary code that links tightly into Linux. Oh, they may not like — but in most cases they neither do sue nor believe they successfully can.
- Wikipedia cites some cases in which the GPL has been successfully enforced.
- One of the earliest GPL controversies was over what sounds like a MySQL storage engine — Progress Software’s NuSphere, developed in connection with MySQL AB. Litigation ensued, and before the case was settled, the judge wrote “After hearing, MySQL seems to have the better argument here, but the matter is one of fair dispute.“