A few months ago I wrote a post entitled When Premium WordPress themes and open source ethics collide. It received a lot of interest and sparked a healthy debate that still, occasionally, rears its head.
The main thrust of my argument was that it was ethically wrong to actively prevent the further development of any theme that is based on open source code. And since all WordPress themes, it could be argued, are rooted in open source code, no WordPress theme should carry an artificial license that expressly prevents it’s further development and distribution.
Before this argument can be advanced it is important to separate code from design. If a theme developer decides to offer a premium theme then, as many agree, it is the design that is being charged for, not the code since charging for the code, which is inherently open source, would be, to quote one Upstart Blogger reader and commentator, not cool.
But things aren’t that straightforward. Not by a long way.
I’ll explain with a semi hypothetical case study.
Some months ago I purchased a developer license for the Thesis WordPress theme. The terms of that license are stated very clearly, as follows.
You may deploy Thesis on as many of your own sites as you like with this developer’s option, and you do not need to retain the attribution link in the footer. You can use this bad boy however you want! Seriously? Seriously. (Well, you can’t sell it, but you already knew that.)
The Thesis design is deliberately generic and the code is, apparently, cleaned up and search engine optimised within an inch of its life. I’ll be blunt. I don’t like the design and I think the code is deliberately tricky to modify. The only simple way to modify the theme is by using the integrated options panel but you will still end up with a blog that will blend in rather than stand out. And that’s not, in my opinion, a good idea at all.
So I hacked away at the code and made several changes, including adding a full width header, removing the unwieldy and unnecessarily bordered box at the top right of the theme, changing the column layout, removing the menu and replacing it with inline contextual navigation, changing the font styles, increasing the whitespace, adjusting the alignment and generally making it look nothing like what it did to start with. This is what I came up with.
I’m reasonably confident that the resulting theme, which has a working title of Revolver, could never be accused of looking like Thesis. The design has much more in common with my recent Enormous theme than it does with any premium theme.
You can see a demo of Revolver working quite happily on my the arts blog, Art Dance Music.
Although I have edited the code I have not attempted to remove any of the references in that code which advertise its origins. I could have done. It would have taken a few clicks and a few find and replace actions to clean the code’s slate but this would have seemed petty. I would only have done this if I was trying to repackage the theme and redistribute it in a dishonest fashion.
And that is not what I want to do. I want to be able to take WordPress code, open source code, and use that code to create and develop my own derivations. Isn’t that what modifying open source code is all about?
The license makes it plain that I can’t sell my new creation but it clearly states that I can use the theme however I like.
I can use it on any number of blogs. Presumably this means that if I were to offer my design services to a paying client I would be able to implement my design without any problems. It would follow, therefore, that I could get around this by deciding to make my design services available without charge, which is, of course, what I already do by offering all of my WordPress themes for free.
There is a very fine line between offering to design a wordpress theme for free for an unlimited amount of people and simply giving it away. A very fine line indeed. Many would argue that there is no line at all.
At this point some of you might be yelling at the screen, telling me that the developers license is so called because it allows me to develop and, furthermore, the license tells me that I can use the theme in any way I please as long as I don’t sell it.
But, dig deeper in the license and you will see, further down on the page, that whilst you can use Thesis on your client’s blogs any redistribution is forbidden.
That fine line I mentioned a moment ago is getting wider.
At what point, if at all, am I ethically able to release Revolver as a free WordPress theme? Or, how much modification is necessary before the theme is freed from it’s restrictive non-distribution license?
It seems to me that one would want their theme as widely distributed as possible, especially (as in your case) if their name stays with it even after it has been altered. Therefore, I don’t see the difference between you distributing it for the author, or them doing it for themselves.
To answer your question the best way that I know how… copywright law states something along the lines of 20% of a “copy” must be different than the original to be declared “new”. Did you change 20% of it? (Then again, does 20% mean code amounts, or appearance?)
#1 – If you wanted to take a theme, modify it, and re-release it, you should have done so with a free, GPL theme. A couple of good ones would be:
http://themehybrid.com/themes/hybrid
http://themeshaper.com/thematic-for-wordpress/
#2 – I would think that if you took out the custom coding in Thesis, and broke it down to a basic theme, then redistributing it shouldn’t be a problem. But if you’re going to do that, it would seem like an easier solution to just start with a GPL theme in the first place, and build on that … then release your creation. Starting with a copyrighted theme, making some changes, and then wanting to redistribute it, seems a little short-sighted.
Bottom line … if your derivative work contains copyrighted code, then you can’t redistribute it. (I would think, at least)
I’m not going to answer your question, because I think you know the answer and it doesn’t reflect your true motivation.
On to that… if you think this is a way to bring massive attention to you and your blog, you’re wrong.
If you think this is a great way to selectively piss off some key people who you might otherwise want to be friends with (given your subject matter), congratulations.
Having built themes from scratch for high profile blogs and built my own sites, Thesis saved me a lot of time and allows for just as much customization as building something from scratch.
Modifying core files is not the way to customize it – you should be using the /custom/ folder and building your modifications there. If you feel limited doing that, you need to read over the hooks, have a better understanding of CSS, etc. Literally 95% of what you want to do is possible from that folder – if you don’t want an element to appear on the page, just hide it.
To claim that the theme is intentionally hard to modify is a bit unfair. It is very easy particularly for non-developers, but even developers should be able to do anything they want.
I am inherently against the selling of open source code, which basically is what WordPress is and the Thesis Theme.
In my humble opinion if you have modified the code and changed the design, it becomes a different product all together.
That being said there is far too many buts and ifs, to be able to win this debate, for both sides of the fence.
If I was you. I would just release the new theme for free, piss of I say to people who try and cash in from the hard work the open source community do.
I won’t say more, as this is something that really gets to me.
I don’t have a problem with those selling “premium” WordPress themes at all… but attaching your own license to open source code that states those who purchase can’t do what they clearly just did.. sell it… is completely ridiculous (however much you alter it).
They’re taking something free with a license (GPL) that states that it is completely open source.. meaning that anyone can use it. For example, all of the code used to run the Thesis theme is based on WordPress open source code… which is free for anyone to use. Therefore they can’t legally stop you from using it as you wish. They’re pretty much saying we can’t do what they just did because they added to it. Wrong!
Copyrights and licenses are around so people/businesses can protect they’re work. But if you that work is not entirely yours than the license doesn’t apply. The design and CSS (if original) do not rely on the WordPress code and therefore are within the scope to license as they choose.
Selling WordPress themes is completely legal as far as GPL but saying those who buy it can’t do the same is not even an argument.
License the CSS, graphics and design but the WordPress code is ours (the WordPress open source community) always.
Sorry for the vent session here but one more thing…
If WordPress wanted to flex it’s muscles on this they could buy every “premium” theme out there and list them on there site with a new stylesheet for free and nobody would even step foot in a court house.
Since WP is GPL, and its themes are the derivatives, basically you can do whatever you want to do with it, modify it, distribute and sell if you want to, but the GPL license stays. You can’t forbid someone else to sell and distribute. I had some talks about this with Matt Mullenweg from last week’s WordCamp in Indonesia.
He cites the GNU – FSF philosophy:
0. The freedom to run the program, for any purpose.
1. The freedom to study how the program works, and adapt it to your needs. Access to the source code is a precondition for this.
2. The freedom to redistribute copies so you can help your neighbor.
3. The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits. Access to the source code is a precondition for this.
Since you’re opening up a can of worms, can I add another worm? Revolution Two Themes: For 2 months it was “we’re open source now, download them free!” now they’re $59.95 if you want to download it and I don’t see anything on the site saying they’re still open source. Now there’s a really blurry line, one they haven’t even addressed on their own blog to explain. I’d be interested in hearing your thoughts on that one!
Back to the Thesis theme though, wasn’t there some kid who decided to clone it and release it as a free theme? Whatever happened in that case?
Seems like it would have been better to hack away at a different theme to begin with – one with equally good SEO qualities, since that was the main reason you started with Thesis, right?
Nathan – I’m not being shortsighted, far from it. The whole point of this post was to question the validity and ethics of someone who actively prevents redistribution of modified open source code. Choosing Thesis was the obvious choice since it is, apparently, great code. I think that I should be able to have access to that code, since it is open source, and also to modify it and then share my modifications or developments with others who may want to do the same. Isn’t that what open source software is all about?
Matthew – Thanks, but I don’t think it’s a copyright issue. I think it’s an open source issue. That code should never have had a restrictive license put on it in the first place.
Brian – I think you should answer it rather than attempt a witty put down. I’ll make it easier for you and ask the question again in a different way. Is it acceptable for a premium WordPress theme developer to prevent further development of open source code that they have modified, thus preventing the open source community from benefitting from those and further modifications?
Ben – Thesis may be a great theme if that is the sort of thing you are looking for. But my reason for writing this post was to spark discussion regarding the legality and ethics of modifying premium WordPress themes and then redistributing them for free back to the community from which they originally came.
Mark – Thanks. I will release the theme at some stage, unless a decent argument is put forward that persuades me otherwise. Selling open source code is wrong and preventing further development is even worse!
Joe – I concur. And since I have changed the CSS and the design I would argue that it is perfectly ethical and lawful for me to distribute the theme. Agreed?
Ryan – Exactly! You can’t forbid someone else to distribute. Looks like Revolver will be getting a release very soon.
Chelle – It’s crazy, isn’t it? One minute it’s premium, then it’s free, then it’s premium again.
Pippy&Champ – It may have been easier to do that, yes, but the whole point of the excersise was to see if it was ethically possible to learn from code that is apparently so wonderful, modify it, and then release it back as a free theme so that everyone can benefit from it. Preventing further development goes against everything open source stands for.
It seems pretty clear to me that some premium WordPress theme developed feel that it is ok to stand in the way of further development whilst the rest of the WordPress community, an open source community that everyone should be able to play a part it, feels frustrated by the roadblock mentality of certain individuals, especially when it is for financial gain.
It is also very telling that the people who disagree with me choose to throw insults and veiled threats rather than making any constructive contributions to the argument.
Until there is an actual test case that can definitively say that themes are based on GPL code (and thus, must be distributed under a GPL license, if they are publicly distributed at all) or that they are separate entities, this whole conversation is going to continue to go around and around.
Frankly, I think Drupal has the right idea in that the base “theme” PHP files (which doesn’t necessarily mean any special or custom functions, just the base theme files) are GPL, the images, the CSS and any custom stuff that isn’t derivative of Drupal are licensed under different terms. Thesis and other WP premium themes might still not be completely clear (not sure how the backend modifying stuff works) if the Drupal model was followed, but at least then it would be clear. Joomla’s stance is that themes are not required to be GPL-compatible because they are an exception, as they are mostly CSS, Javascript and images and not just PHP that references Joomla’s hooks. (and let us not even get into the far bigger question if any of this were to really be battled out: PHP isn’t GPL. There is a PHP exception or inclusion for most GPL projects, but PHP has its own license that is most certainly NOT GPL. Open source does not equal GPL.)
Right now, it’s just a big game of chicken. WordPress isn’t going to go after any of the premium theme creators (other than not promoting them through official channels, which frankly, isn’t really a loss to any of the big players) and premium theme creators can’t really go after anyone giving away their stuff. Re-selling it — yeah, they could probably do that — but they can’t really stop you from distributing your theme based on a non-GPL licensed premium theme.
The reason this hasn’t really exploded is because most people will respect a license, whether it is truly legally enforceable for not. More to the point, I think people who buy premium themes are either doing so to save time (that’s why I bought Thesis — and I do custom design work for clients — Thesis is great and is extremely robust) or because they get something quickly and easily. Those users don’t feel cheated or wronged and they don’t have any incentive to start releasing the themes everywhere. You can still find torrents and warez links, but it isn’t as huge as it could be. Mostly because people are OK with paying for something they find value in.
While I find it distasteful to release a modification of someone else’s work out of spite (and if it isn’t out of spite, or out of trying to make a stink, please tell me what it is about), you know as well as I do that there is really nothing to stop you from doing it. Honestly, in Thesis’s case, I don’t see the point. All the backend stuff and customization options are what makes it Thesis. If you take all that out, you might as well just be modifying the default theme or something.
@Ashley
What makes you think that Thesis is open source? All you’ve done is SAY it’s open source. I’ve also read a couple commenters here declaratively state that themes are derivative. Again, SAYING it doesn’t make it true.
Thesis, and pretty much every other WP theme uses some open source code, and you’re free to pull out that code and use it yourself. But what makes you think you can take code written by Chris Pearson and give it away for free? He wrote the code. He owns the copyright. You don’t. It’s not your code. Read the terms at Chris’s site. You’re not buying the theme. You’re paying for the right to use the theme.
I think the concept is clear. Deliberately trying to muddy the waters doesn’t do any good.
Thesis, WooThemes, iThemes != open source code. Once you understand that, the can of worms becomes very, very empty.
Nathan
Christina – This isn’t out of spite, I can assure you. I simply wanted to have a reasoned debate. And some people, you included, are helping that debate to develop. Others, tellingly, are choosing to just hurl insults.
Nathan – I have no problem with Chris charging for support or, indeed, for his designs. What I cannot stomach is how it is apparently ok for modifications to open source code to get road blocked by a restrictive license. Your argument, if followed to its conclusion, would state that everyone who adds code to a WordPress theme can then claim copyright of the result. Every theme, free or otherwise, could then, potentially, be under copyright and be owned by the author who released it. That would be absurd.
Your closing line states that Thesis is open source code. If that is the case then what on earth is the problem with its redevelopment and redistribution?
Avon – Thanks.
I’m amused by the attitude on this website.
First off, it’s great that people contribute to open source and take such interest in a healthy discussion on the motives and ethical implications of releasing and selling open source’d code.
And then, I’m shocked that the same ‘open’ people put a label on others because they tried to get some ROI. Obviously, you guys all live from love and air, and there’s nothing wrong with it. The rest of us has to pay rent though!
Look at it from another perspective: It’s good that someone is spending money on open source, because it helps foster the development. I don’t want to destroy any idealistic thoughts on how open source works, but if you look at it, a lot of projects have a foundation in the background, there are companies who hire people to work on open source products/projects, developers receive donations to work on projects and so on.
If you are in a situation where you make a good living from a 9 to 5, and still have some spare time to kill and therefor decide to contribute pro bono, then that is great as well. But you shouldn’t expect others to be able to do the same. It’s a gray area, hardly so black and white.
Till – I have never argued against people making money. I agree that it is positive that someone is able to support themselves by developing open source code, but this shouldn’t include the prohibition of further third party development and distribution.
Something I feel compelled to point out is that, really, suggesting that “the code is deliberately tricky to modify” is missing something. I am led to believe that in fact you’re supposed to modify a custom stylesheet, and other separate files—i.e. the things in the “custom/” directory—so that your changes are not tossed in the bin when you upgrade Thesis each time. See the user manual guide thingamajig.
oh such a virtual problems…………everything is based on wordpress, the blogs who make money like this, the designers who make money like that.
whatever. We are fighting on fruits of really small work. and who was the first to put the sidebar on the left? and who was the first to put the sidebar on the right? and who was the first to create a header.php? and who was the first to have that unique idea to have a header picture?
I guess better to rethink all this….be happy and don’t get crazy if someone “put the sidebar also on the left or on the right”
To design and sale premium themes is a risky business all of us know it, if someone afraid the”world” steal the theme?………..do not create premium themes, find clients for example who need “custom” design. But do not create moral discussion about “bad people” because someone put that siderbar on the left “yesterday” already, so those premium themes are not so premium.
@Ashley:
!= means “not equal to” in PHP code.
I’m not saying that by adding custom code to a piece of GPL software you can essentially “copyright” the entire work. That’s not how it works.
I do, however, have every right to place a restrictive license on the code that I WROTE. Why is that so wrong? The silly notion that if I write a piece of custom code, I DON’T have a right to restrict it, is absolutely absurd. I WROTE IT. I can do whatever I want to do with it.
And thus, you (or anyone else) don’t have the right to arbitrarily claim the code is open source, and then do what you want to with it. It’s not your code.
“Your closing line states that Thesis is open source code. If that is the case then what on earth is the problem with its redevelopment and redistribution?”
Ashley, his closing line says “Thesis, WooThemes, iThemes != open source code”
“!=” means “does not equal” in many programming languages.
Just thought I would clear that up.
Underdogblogger – Thanks, it’s always nice to learn something new!
Nathan – Ok, so it’s now ok to take open source code, because whatever anyone says WordPress themes are based on open source code, add new self authored code to that open source code, and then ring fence the result so that no one can redistribute any of it?
Or, are you saying that the only part of the theme I can’t touch is the part that Chris wrote from scratch?
If that’s the case then where is the part of the theme that I need to remove before I can legitimately modify, develop and distribute it?
Maybe it’s impossible to separate the two. In which case the open source ideals have to take priority, don’t they?
Wangjel – I agree. This wasn’t intended to be a name calling exercise.
Josh – I see your point, but am I the only person who wants to just open the style sheet, make the changes, upload it and click refresh?
This is so amusing.
Matt Mullenwag is not a lawyer.
Not one of you with the strong opinions is, either.
I am.
My wife is also an intellectual property litigation attorney.
I am co-owner of DIY Themes.
So, if this qualifies as “stealing” Ashley, you’re stealing from me.
Like I said, way to go.
Christina is right, we need a test case.
You ready to be that test case, Ashley?
Chris wrote the entire theme from scratch, that’s not the issue. You don’t even understand the alleged GPL derivative works issue here, and yet you’re setting yourself up to get sued. And I don’t mind doing it, because it would be great to settle these issues with case law, one way or another, rather than listening to the uninformed opinions of those who accept everything Matt says at face value.
Besides, I get to sue you for free.
Not smart, Ashley.
@Ashley said:
“Or, are you saying that the only part of the theme I can’t touch is the part that Chris wrote from scratch?”
Yes, exactly. For instance, the_content() is a built in WordPress function. That’s yours to use at will.
I don’t own a copy of Thesis, so I don’t know what files would contain the custom code. But generally, any functions that Chris has written can’t be “redistributed”. Those are his copyright. They generally look like this:
function some_custom_function() {
/* some custom code here */
}
Non-GPL theme authors should probably be much clearer on what is, and is not, GPL code. If we did that, things would be much easier. But just because it’s hard to find the line doesn’t give any of us the right to steal the code.
Hope that clears some things up.
Nathan
I’d be a little ticked off if it was my theme too, but I don’t think I’d go to great lengths to stop you. I care about my design, not my code.
But in the long run, it would have saved you a lot of time and effort to just use a stripped-down WP free theme and work it.
In the end, it’d be much easier, unless you really want to just do it to push peoples buttons.
Somehow themes(and software) should be like tunning and selling a car. I can buy a cool car, add some lights, nitro, hyper duper stereos, remove those ugly doors ’cause I want to feel fresh air and sell it again. I will never understand why there are licenses in software. It’s like Renault or Peugeot charging for how many passengers the car will take or “oh no, you can’t give the car to your friend, only you can drive it” or Blockbuster charging for how many people will be watching the video: “if you watch it with your mother in law there’s an additional of US$20″.
Ok, my thoughts:
WordPress is GPL. IMO, Themes and Plugins for WordPress are not derivative works. Much like programs built using the Cocoa framework are not considered derivative works by Apple even though they ONLY run on the Mac OS X operating system, or old sites built using Frontpage extensions are not derivative works of Microsoft though they only worked on servers provisioned with the Frontpage Extensions.
So many dismiss the argument with the following: “What is the problem? You may sell a support contract, just not the theme/plugin/etc.” Anyone in business to make serious money (not just extra spending money, etc) knows that until you break the bond between time and money*, you will not become financially free. A product (i.e. Pro Theme) will continue to make money even while the developer is sleeping. A support contract of any size anticipates the client wanting their money worth (and for good reason!) of your time each month. How many can you sell before your time is full or before you can’t handle the work.
If a developer chooses not to open source his theme, then just leave that theme alone. Boycot him, don’t support him, but don’t steal his work.
* Hat tip to Daniel Childers to passing on the phrasing of this statement. I think it really sums up why I am moving my business from service based to product based.
I seriously struggle to see the problem. According to the GPL you are free to do whatever you like as long as you distribute it under the GPL. You could take the Thesis code and sell it if you wanted no problem. The PHP language which themes are built on is open source and under the GPL, so no one can limit ones creative freedom in any way however much they alter or change it.
The argument is against the visual appearance, the css and the images distributed as part of the theme. The images could in theory be distributed under a more limiting license, but the code. Nah!
How much time you need if you are a “wordpress rock star” to build a theme?
With coffee one hour?
I have seen discussions of those “rock stars”…….:40 minutes they say.
Lets build a “premium theme”:max few days you suppose to be ready if you are one of those rock star?
The amount of work invested is not that big, and if everybody profit from the same “source” it would be sign of moral and good heart to at least don’t freak if someone use it, or even after some (whatever) modification make it “free” with “incorrect” attitude.
Actually the biggest part of the wordpress users do not profit from those rockstars, and as wordpress is open source the real rockstars are: who is supporting the development of wordpress with open source code.
and any way to steal a theme and resell is not difficult at all because you can get a theme in pieces and put it together again in one day, and who can tell you “it was my idea to put the sidebar on the left”, and ALL those themes have pieces inside as open source javascripts…………., what is sold with the themes, aaaaand that is really really funny.
Those themes are premium many times only because of those “extra features based on open source scripts:as “featured articles, galleries,………and that is a coding work and here is that strange fealing of “why it is not open source anymore if the job actually done is JUST cooking together different open source pieces”?
Rename it, don’t call it premium theme call it for example “cooked code” :d,…. known it is not good marketing strategy because those “ignorant people will not buy it if you don’t call it Supermegaexlusivpremium(traditionaltwocollumandalittlejavascript)waw
By the way almost all of them is the same and if you want to get something out of then you have to invest lot of work by yourself and that is most of the time the same amount of work what you would use to build your own theme…..free.
ah yes and if we really digg in their business they get pissed off and hack our sites and then we have the perfect copy of our world with “freedom of speech, democracy……..just because they are rock stars…like dictators who can not accept any discussion what motivate to change
Ashley if you would like to edit the style.css and click refresh – why you are using Thesis? There are thousands of themes out there …
I can’t understand what you are would like to say and be sure this is not why I can’t understand english very well – I can’t understand your meanings: your article is a “clue” article — nothing more.
Would you like to have more attention? This is the false way in my mind.
regards
Monika
The so-called Premium Theme Developers should be quiet and ride the gravy train while it lasts.
If I hear much more complainin’ from them I’ll make the effort to take their works off of private torrent trackers (where most are indeed available) and put them on pirate bay for all to see and download.
Then the point raised here will be moot.
no, i guess it is not a clue it is a real circus out there with money and abuse,
let me see a real PREMIUM THEME please show me something new!
BUT show me something premium, and not to sale what you find free and act like the creator by himself.
When anybody saw a real new theme?
Me…………. i didn’t for a year now, and i would be very very very happy to see at least rock stars get somewhere with wp
Brian – Let’s deal in facts not hypotheses.
What have I stolen from you? Nothing.
What are you planning to sue me for? Nothing, because all I have done is modify the code for my own use and then start this discussion.
You claim that you are the only lawyer around here yet you have no idea whether or not that is true. I’ll give you a clue Brian. My lawyer is reading this.
Break down what I’ve done for a moment before shooting off again. I purchased a developer license. I installed the theme on my own blog and modified the code to the point where it is practically unrecognizable. I then wrote this blog post and asked questions that you, and Chris, were clearly uncomfortable about.
Many people then left comments in support of my position. Are you going to sue them as well?
Sounds like you just don’t like discussion. And thankfully I don’t think you’ll find a court that will help you to silence someone who is simply asking a question, no matter how provocative it might seem to you.
Chris is calling me names and you are threatening to sue me in order to shut me up. From where I’m sitting it’s you, collectively, that are not being smart.
Making big threats and hurling insults to try and frighten everyone away when, in reality, no one has done anything wrong is making you look pretty dumb.
Nathan – Thanks. That does make things clearer. But I think you will find that Brian and Chris both disagree with you in their assertions that the whole thing is off limits.
Douglas – Those are good points, thanks.
Elliot – Funny but, unfortunately, so true!
Judson – Thesis is the most popular premium them around so it made sense to use it as the basis for my argument. Sure, I could have just changed another theme but that wouldn’t have prompted this lively and informative discussion.
Kasper Sorenson – Agreed. The design might be something that can be licensed but not the code.
Wangjel – I agree with you, again!
Monika – I’m using Thesis because I want this discussion to take place. I believe that all WordPress themes are inherently open source and that restrictive licensing is wrong. I am genuinely interested in what other people think about this and what their arguments are, one way or the other.
Dionysys – Whilst I don’t condone your actions I can understand your frustration.
In my opinion you can:
- setup and keep a trademark for the unique design (appearance)
- copyright any images that comes with the theme
- trademark and/or copyright colors (like german telecom did with margenta as their corporate identity)
- trademark library code shipped with your theme, that doesn’t call any line of WP GPL’ed code
but you can’t build code on top of and using GPL’ed code you not own and restrict the publication of.
If such themes would provide classes or code, that never calls any of the WP hooks, filters or global vars but would get all stuff as method/function parameters and outputs amazing results with this input, you could restict the publication and/or redistributation of those classes or libraries.
conclusion: The themes main code should be redistributable but the unique design, images and independed library staff won’t. So you could redistribute the rack but have to skip the artistic work then. But then is may look ugly or didn’t work.
@Ashley said:
“Thanks. That does make things clearer. But I think you will find that Brian and Chris both disagree with you in their assertions that the whole thing is off limits.”
I don’t think that’s what they’re saying at all. They’re simply saying that you can’t redistributed the modified package, because it includes their copyrighted code. If you wanted to redistribute it, you’d have to strip out any non-GPL code to the point where it would be considered “fair-use” (an ambiguous term that I personally wouldn’t trust … just take all the custom code out).
So just to be clear, if you:
1. Remove the images
2. Remove references to the (probably) trademarked “Thesis” title
3. Removed any custom PHP
4. Removed any custom CSS
…then you’re within your rights. Problem is, once you’ve done that (removed all the custom code), you’ll probably be left with this:
http://binarybonsai.com/wordpress/kubrick/ (the default theme)
So, it hardly seems worth it.
Oh, and for what it’s worth, Brian isn’t threatening to sue you for having a simple conversation. He’s warning you that if you decide to redistribute Thesis, then he’ll sue you. Big difference. Personally, I wouldn’t risk it. The law is on his side.
Nathan
@wangjel said:
“How much time you need if you are a “wordpress rock star” to build a theme? With coffee one hour?”
You’ve evidently never built or seen a quality WordPress theme. It takes days, if not weeks. Sure, there are an endless stream of manufactured free themes that are featured at WeblogToolsCollection.com. Those, I’m afraid, are not the standard for quality, though.
A good theme designer/developer thinks through endless user scenarios, builds code to accomodate for plugin compatibility, image size, customization, etc., and then updates and fixes the theme if ever need be.
No wonder people believe all themes should be free. No one really understands what it takes to build a quality WordPress theme.
Consider yourself informed now.
Nathan
Great discussion Ashley. I briefly followed Mr. Pearson on Twitter and found his language to be distasteful. But this is really shocking. Both from Brian Clark and Chris Pearson. It’s embarrassing both for them and for the blogging community at large for figureheads to be acting like this. I don’t follow or subscribe to either of them anymore, but you can be sure if I could double unsubscribe I WOULD!
I agree mostly with nathan here and others who have said that its things like custom functions that are the real issue. That’s not wordpress code, that’s custom code that someone else has written. I won’t claim to know whether or not the distribution of said functions within a wordpress theme constitutes being part of a GPL license, because I really don’t know enough about it.
Elliot, the problem with your argument is that you’re talking about a physical object. You buy a car, you sell a car. Once you’ve sold it, you don’t have it any more, so there is no mass distribution. If you had the ability to modify the car, then duplicate it (literally, not rebuild more of the same car), and resell 500 copies of this car, then I’m 100% sure that the car company would have an issue with that.
We can draw a similar comparison with the music industry, if you bought a CD, changed the case and gave it to a friend, would that be ok? Sure.
But if you bought a CD, copied the tracks, changed them a little, and then gave away loads of copies publicly, would that be ok? Definitely not.
I can see both sides of the argument here, but I think it’s dispicable how Ashley is being treated for simply suggesting and questioning the licenses associated with WordPress themes.
If anything you ‘big boys’ shoud be actively seeking to HELP him (and everyone else) understand why the restrictive licenses are in place, exactly what they cover, and what is and isn’t acceptable. As it stands you’re behaving like absolute children and really not doing yourselves any favours.
The *intent* of the GPL is free, but because it’s legal mush, Chris — and moreso Brian — can ignore it for their own commercial gains.
Now, I am the last to want to block someone for commercial gain. I’m mostly a capitalist and I’m so keen to see WordPress support a thriving and healthy developer and designer community around it… people making money to support themselves, at least.
What is SO disappointing here is the GPL holds NO legal weight at all. No case law, as Brian points out. Nothing. Lawyer-types mock it, for good reason, as I understand.
So, the GPL can’t stand its ground legally (I suspect), but it can/should stand its ground on the strength of community sentiment it should rally against those who contravene its INTENT.
I think, therefore, that the GPL is only as strong as the community of open-source developers for whom it was developed. Hence Matt taking certain actions at certain times against “premium” theme developers.
My disappointment with Brian and Chris (Brian moreso, since he’s the business brain behind the operation), is that they don’t need to grow a business leaving ANY casualty behind… and Brian Gardner (Revolution2) proves this.
Contrary to comments here, Revolution2 sure is GPL, except that the “free” link is very small and easy to miss, in favour of the “supported version” purchase link… but it sure is there and available.
Revolution2 proves that you can give code away for free under the GPL, yet people will still pay for support (access to help, email support, a wiki, custom dev, etc.).
You’re generating a lot of heat here, Ashley — and the conversation is important — but I don’t think you want to take on Brian Clark.
The way to win with Brian is to rally the open source troops against Thesis. (Not that I can talk, since I purchased it some time back for some “quick” client sites and to look at what all the fuss was about.) Us GPL purists should be pressuring Brian and Chris to release Thesis under the GPL and to switch to a “paid support” model as has Brian Gardner.
I see no other way. GPL can’t be defended legally, I suspect. It can only be defended by the weight of community pressure. All the best things work that way, I think.
-Alister
Codestyling – I agree with the direction of you argument. And, taking that forward, I presume you agree that as long as I make the the theme work with just the main code and an original design I am free to redistribute it.
Nathan – I’m still waiting to see if Brian agrees with you. Trouble is, he can’t agree with you without agreeing to the theme being redeveloped and redistributed, albeit without the superfluous code.
You’ve backed him into a corner. If he agrees with you he acknowledges that Thesis is partly open source, if he doesn’t agree then he just opens himself up to another wave of criticism.
That’s the kind of thing that happens when you take open source code and apply an artificial and restrictive license to it.
Rhett – I’m amazed that Brian and Chris have as many subscribers as they do. Especially since they can’t even handle an intelligent discussion without yelling and reaching for the nearest copy of Law For Dummies.
John – Thanks. You’re music industry analogy could be used both ways. Isn’t Thesis just a WordPress open source CD wrapped up in a new case?
Alister – Thanks. I’m not worried about Brian, not in the slightest. I’ve done nothing wrong. I’ve asked him some uncomfortable questions and that’s annoyed the hell out of him.
You are absolutely correct about the need to rally the open source troops. I guess that’s the next logical step.
@Alister said:
“Contrary to comments here, Revolution2 sure is GPL, except that the “free” link is very small and easy to miss, in favour of the “supported version” purchase link… but it sure is there and available.”
Correction. That link has been removed. It doesn’t affect the GPLness of his themes, he’s just not giving them away for free anymore. (you are allowed to sell GPL software, BTW).
Just wanted to clear that up. But he’s certainly within his rights. Remember, GPL is free as in speech, not necessarily as in beer.
“The way to win with Brian is to rally the open source troops against Thesis.”
Maybe so. But that, in large part, has already happened. Open source advocates don’t buy premium themes (mostly). And you’d have a very hard time convincing any Thesis (or my employer, iThemes) customers to jump ship. They love the products they get, and the service they’re given. They’re not about to abandon quality products and experience just because a few people tell them to.
The fact is, good premium theme developers deliver the goods to their customers at a reasonable price. I don’t think you’ll ever be able to convince them to ditch a good thing.
@Ashley said: “You’ve backed him into a corner. If he agrees with you he acknowledges that Thesis is partly open source, if he doesn’t agree then he just opens himself up to another wave of criticism.”
I don’t really think so. Brian, Chris, myself, or any other owner of a proprietary WordPress theme, has any problem saying that people are allowed to use the_content(), the_permalink(), or any other WordPress function. But those function calls are SUCH a miniscule portion of a theme. Like I said, strip out the Thesis code, and you’re left with Kubrick. So why not just start with Kubrick?
This is one of the major flaws that comes with applying the GPL to a “program” written in PHP. It’s nearly impossible to NOT have duplicate methods among developers when performing tasks. 2 developers may use the exact same method to achieve a goal … one of them copyrights his work, the other applies the GPL. Same code (or at the very least, similar). Does that mean that nobody, including the first developer, is allowed to use that code in a proprietary work? Of course not.
The same goes for CSS.
Fact is, the GPL was NEVER intended to be applied to web languages, for this very reason. And that’s why it would never hold up in court (IMO). That is also why every time the word “court” is brought up, people start talking about “intentions” and “spirit” of the license, for what it’s worth.
Here is german GPL court decision as refrence (sorry german, but i will explain it a bit below): http://www.beckmannundnorda.de/urteil_gpl.html
A router vendor had to withdraw it’s product while using ‘netfilter/iptables’ which is GPL’ed and doesn’t meet the conditions of GPL.
Especially while the vendor had requested a license fee for the whole software as is without providing the related sources.
There are more examples existing where german courts confirmed the rights of GPL owner.
I don’t want a discussion about law and order but keep in mind, solely because it’s digital stuff there are nevertheless legal property right bound to GPL’ed source at context of GPL.
There is a fairly large difference between the CSS, XHTML, and JavaScript that is written for themes and the WordPress backend that powers it.
Since the XHTML, CSS, and JavaScript can stand on its own, without WordPress powering it, using any of that and selling it is certainly against the law. If you have modified it significantly, then maybe you can pass it off as your own. Maybe.
The PHP in Thesis is not all WordPress – a significant amount of it is custom written. Just like the CSS and XHTML, it could stand alone and power a site. Did Chris use WordPress functions to make it work? Of course – it’s a WordPress theme. Does that mean you can resell his work?
Your argument analogizing writing code for WordPress and trying to copyright that doesn’t fly – you are generalizing quite a bit. Can’t I sell the Rails application I wrote, even though Rails is an open source project?
@alister – the ‘free’ link at Revolution2 is no longer. A purchase is required to download the themes from there.
@Alister – Just to clarify – Revolution2 has gone away from having a small download link on the front page, when Brian realized he didn’t have to give it away for free, since the GPL license allows you to sell your product, as long as it is licensed as GPL.
So since Brian was the guinea pig for that model, and has now gone away from it after realizing he could sell his themes, it just shows you that the model wasn’t viable enough.
Just to clarify my position I should say I don’t think you could/should redistribute the Thesis theme. It has a lot of custom code and the developer license clearly entitles you to use it only on the sites you build, not reselling it or distribute it for free.
thanks Nathan i’m informed now.
yes it is true i didn’t saw premium themes, i just had lot of work to fix “premium” themes for clients, with plugin style of illusions, and little confusions here and there about there quality. Naturally we find also lot of very happy people who use them, as we find very happy people who use free themes.
But lets get to the point about money Nathan.
We have a non profit association in France with clients without money in the mountains, who never used internet before and we build sites for them, we would be very happy to see some sign of support from rock stars….can you support our association with some of your real premium themes? Naturally we don’t use them just for people who don’t have money to buy, and you can save at least an hour of work for us?…………..and support the use of wp and wp by itself?
To be in balance and find your place in the open source community by helping who don’t have?
Please?
That would be sign of moral and balance with a thankful attitude to the people who was building something what you can build on.
(i guess you will not give, but i’m open to be informed about i’m wrong))
Nathan – They are metaphorically stuck in the corner until they answer the question. When you offered your explanation they could have very easily agreed with you and satisfied a lot of people.
Many people will not be happy until themes are freely distributable. That is why Alister and many others feel that the paid support route is a much more intelligent one to take.
I think that Chris and Brian’s position is that Thesis is 100% untouchable in terms of redistribution just because they say so. I don’t think you, or anyone else, would agree with that.
of course we can not agree with that, what is protected there actualy: php?, css?
it is extremly difficult to protect anything in a theme. how you will do if someone just for fun write the same and publish it. I don’t speak about stealing and rewriting but really invest “weeks” of work and write the same. What they will do?
We will than redifne posibilities of wordpress and some become closed source?
I hope you are joking!
the only thing can protect is “brand loyalty because your service is good enough, and you can build “friendships, and forget about automatic money making. Internet is not a garden to put there seeds and collect the fruits. It is human, and more and more becomehuman.
Sorry for the people who are not ready for it.
Wangjel – I think something may have been lost in translation. I certainly don’t agree that themes are 100% untouchable. I believe that to be Chris and Brian’s position and I was suggesting to Nathan that no one, me included, would agree with them.
As you say, if we go down that route WordPress moves closer to being closed source, something that would be unthinkable and very detrimental to everyone within the community.
the “you” was not you :d
it was Chris Brian……..as all of us is in the same discussion
Wangjel – Thanks! I thought that might be the case!
so far i’m not born with “thank you” as the first word, not even french but i hope my english is not so much “disturbing”. :d
Here’s an idea that (I don’t think) has been put on the table for consideration that answers the question:
“At what point, if at all, am I ethically able to release Revolver as a free WordPress theme?”
What about releasing Revolver to people who can demonstrate that they’ve already bought a copy of Thesis? It’s not mass distribution, it’s free, Chris gets the funds he’s entitled to, the Thesis community benefits…win win win.
I’d be interested to hear what Chris thought about this. Maybe he’d be interested in setting up a restricted site where people could make+post mods of Thesis and distribute them to people who’ve already bought a copy.
question for confirmation,
does Thesis had any license that had legal weight? is it registered to a certain trademark / copyright? in what way can Chris sue? is it actually a long shot for him also?
A lot of people have mentioned taking the custom code out of the WP if you want to resell or give a premium theme away. My question is, if custom themers are so good at modifying WP and have produced a new breed of blogging software, why not take the WP out of their product and go all the way, sell a new blogging platform?
And if not, if they want/need to “stand on the shoulders of giants”, a GPL platform developed, marketed, popularized, and supported freely, shouldn’t they have to make some concessions to the share and share alike environment?
Make a good living by all means, but if they don’t want their code to be GPL, want exclusive “I’ll sue you” rights over it, should they really be in the GPL side of things?
I mean, isn’t the whole idea of developing GPL software that it stay GPL? It seems to me custom themers want it both ways, get the benefits of a thriving GPL community to build 90% of the product/demand then tweaking it here and there and selling it as an “in-house” privately owned software package.
Jiminy! Let me get this straight. Ashley posts a question:
And the owners of the theme he paid for throw a hissy and even threaten to sue him? From what I read, Ashley wasn’t threatening to release the theme, just posing a question about a much discussed topic in the WP community.
What a way to shoot yourself in the foot, Brian Clark! The way you and Chris responded to this post revealed more about your own character than Ashley’s. All you accomplished was to make yourselves look like tools as well as lose at least one customer. I used to recommend your blog to people wanting/needing to learn about copywriting. From now on, I’ll save them the trouble and point them toward someone who isn’t a complete and total hack. I’m sure Gary Halbert would appreciate the traffic, if he were still around.
all this is played in real on a human level, young coders often arrogant whatever stupid they are and beleive internet is there because they are there.
But the actual human qualities are missing? and fight about licences start like chickens without head?
If you remember i have been asking rock stars to support non profit activity with some “premium” themes but no “elevation themes”
and this is the truth.
Big face small heart
@wangjel Since I started my graphic design studio 3.5 years ago I have learned a very important truth… non-profit is not equal with poor. Many non-profits are well funded, or can write a grant for items they deem important… their staff are often well paid (translation… make far more than I do). I realize this is not always the case, but…
Non-profits that CAN afford to pay a developer but instead ask for free items or discounts give non-profits like yours a bad name (I realize you really could benefit from their services). If I were you, I would write an email explaining what you do and what you need, and send that to some of the premium theme developers… I hope they can help you.
If not, you may find that their business is busy helping other non-profits in their areas of business. The same developers who don’t give you their work for free may spend 10 hours a month working for free for their local Red Cross or UCP. Don’t write them all off.
@Douglas
no we don’t need, not because we are rich, (we are not, we don’t have even bank account for the association, and we don’t really look for it, the costs we pay by ourself),
to ask for premium themes was more about to see their attitude.
for example Nathan story with “elevate themes”
http://www.elevatethemes.com/
and reality of helping or not.
giving free or not (but they disappeared)
and just to don’t mess around: this question of premium/free will be not solved by lawyers, but with flexibility and human sense, and naturally everybody who build opensource and have profit with it….good to be thankfull and open not arrogant.
because an arrogant almost (owner)attitude naturally create this kind of discussion what we have here.
“bad name”: i don’t understand waht you mean my english is not perfect so if you can explain what you mean……..
The attitude of Brian and Chris is a shocker. Me and a couple of friends were looking for some nice premium themes and we aren’t buying from these two.
Good discussion.