WordPress and the GPL, round two

This seems to happen every couple years. Something will come up, and suddenly the WordPress blogosphere is suddenly all a-Twitter (pun intended) about GPL-related issues. This time around, though, it isn’t an outright disregard for or ambivalence toward WordPress and the GPL, there are actual, seemingly good intentions involved, and unwilling participants caught in the crossfire, which makes this go-round much more unfortunate and sad.

@jakecaputo is a WordPress theme developer. He also happens to be a seller on ThemeForest. Until Friday, he was a speaker and planner for  WordCamps. Now he isn’t.

Say what you want about ThemeForest (I certainly have).  For the record, I’m not an advocate for ThemeForest, nor do I have any themes on ThemeForest (or plugins on CodeCanyon). If anything, this discussion has made me want to steer even further away from those places (at least until this gets resolved, one way or another — well, one way, at least).

The reason Jake got booted is because he’s on ThemeForest, selling themes. The WordPress Foundation — the non-profit entity that helps support WordCamps and otherwise provides advocacy and guidance for all things GPL in the WordPress world — has made it clear, for a long time, that WordCamp volunteers must not only follow the letter of the GPL license in how they advocate and promote their own works (outside of WordCamp), but also embrace and follow the spirit of the GPL as well. In plain(er) English this means for developers that your code must not be simply GPL-compliant (e.g. split GPL and proprietary license) but 100% GPL or compatible. All resources in your (distributed) code, all GPL, all the time.

The problem comes in when you sign up to be a seller on ThemeForest. ThemeForest (and CodeCanyon) enforce a split GPL/proprietary license and do not let authors choose the license under which their code is released. This comes in direct conflict with the “one step above simple compliance” that the WordCamp guidelines advise. Which means, essentially, that any author on ThemeForest or CodeCanyon can not present at a WordCamp because ThemeForest and CodeCanyon do not allow them to distribute their work under a license that is 100% GPL. End of discussion.

I will happily say that this sucks for individual theme authors who put their work out there and try to give back to the community by being involved in WordCamps and are now being excluded because of their involvement in Envato properties (the parent company of ThemeForest and CodeCanyon) and decisions that were made for them. But this is how I see it:

WordCamps are largely assisted by the WordPress Foundation — a non-profit that Matt Mullenweg set up a few years ago to “further the mission of the WordPress project.” WordCamps can use funds from WordPress Foundation stores and, if they make any profit, it goes back into the WordPress Foundation. The WordPress Foundation takes over — as an official, legal entity — where the views and ideology of WordPress.org left off, particularly when it comes to these issues of open source and the GPL and what flies and what doesn’t. Because it’s an organization, it has more influence than just saying “.org says you can’t do that”. But I see this going a step further than that, too. In the (hopefully unlikely) event that the GPL ever has to be defended in court as a legally-binding license (like the mutterings several years ago when Chris Pearson was refusing to put the GPL on his popular WordPress theme, Thesis), it would be the WordPress Foundation who would be defending the GPL, much like the Electronic Freedom Foundation assists in cases where digital freedoms are being violated. And that is why I don’t see the WordPress Foundation ever budging when it comes to GPL debates, nor should they. If you make just one exception, it undermines the entire license and could potentially threaten all open source software released under the GPL should it ever go to court (and even have wider-ranging backlash than that, should GPL-derivative licenses or any open source license come into the argument — if you prove the GPL is invalid, where does that leave other OS licenses?).

The WordPress Foundation is like a lighthouse for the GPL, particularly when it comes to WordPress, and WordCamps are a product of the WordPress Foundation. That’s why it’s not good enough that you simply comply with or agree with or use the GPL when it suits you. As a speaker, organizer, or volunteer for a WordCamp, you are a representative of the WordPress community as a whole, and therefore you — yes, you — need to go above and beyond what’s required. If I went to a WordCamp, knowing nothing about WordPress, and met a speaker there who sold on Envato (CodeCanyon or ThemeForest), and went to look up their stuff after the Camp, I could easily get the wrong idea about what WordPress is and where it stands when it comes to open source, the GPL and selling commercial themes and plugins.

so, wp.org is a religion now?

David
permalink

No. But the GPL is an ideology and the WordPress Foundation is based on that ideology.

There are a number of things that can be done to solve this problem, including — but not limited to — a compromise on Envato’s side.

1. Non-WordCamp WordPress events.

This has already been done with a number of WordUps around the world and with the recent — and by all accounts incredibly successful — PressNomics. Have a problem with the way the WordPress Foundation runs things? Fine. Start your own event that’s not a Camp. WordCamps traditionally don’t make any money and generally pretty much break even, with all the sponsor money and ticket sales going to pay for things like lunch, t-shirts and the venue. There are no shortage of willing sponsors for a WordPress-centric event, organizing a notCamp wouldn’t be any more difficult than organizing a Camp (admittedly, that’s still a pretty hefty job).

2. ThemeForest authors pull their themes off of ThemeForest.

This is a bitter pill to swallow. Many ThemeForest authors are making significant amounts of money selling on ThemeForest and going it alone would put that at risk. However, as long as you don’t have a say over the license under which you release your themes, if you want to be a part of the WordCamp system — and generally play nice with WordPress — it might come down to this. Brian Gardner (from StudioPress) pulled his themes off of ThemeForest when he realized that putting a GPL license on his profile page wasn’t good enough (editas pointed out in the comments, this was an internal decision that had been made already that just hadn’t been done yet and not specifically a direct result of these shenanigans), and Adii (from WooThemes) — who’s never been on ThemeForest (that I know of edit: I stand corrected) — put in his 2 cents about the GPL and abandoning their split license and adopting the GPL (and subsequently how that’s helped their business by way of WooCommerce). Not everyone is Brian, Adii or Matt, of course, and it’s one thing to already have a successful theme business like StudioPress and pull your themes off ThemeForest — it could be devastating if you were an independent author and suddenly didn’t have those checks coming in. That said, when I launched Museum Themes and looked at the options out there for licensing, I went the harder route — making everything 100% GPL and not using marketplace sites like ThemeForest — because being all in with WordPress, when WordPress is your business is the right thing to do.

3. ThemeForest changes their licensing structure to allow authors to put their themes up under a 100% GPL license.

This may involve some meeting at the middle from ThemeForest. ThemeForest will need to compromise their position in allowing authors to choose. Matt’s comment here indicates that if ThemeForest were to allow authors to release their themes to be 100% GPL, that they would be able to, once again, speak at WordCamps. As he points out, “all of the most successful theme companies out there are 100% GPL and their business is booming, so there’s no monetary downside to Envato.”

The ball, it seems, is in Envato’s court here. Matt has provided some clarification of the guidelines, stating that if ThemeForest/Envato allowed users to release their themes as 100% GPL, those authors (choosing a 100% GPL license) would not be in violation and be able to speak & be involved at WordCamps, but Envato (by still selling non-100% GPL/split-license works) would not. The last time this issue reared it’s ugly head, it was on the theme shops to comply — and they did — and I think the WordPress ecosystem and even their businesses have thrived because of it. I hope the same thing happens here.

The agony and the ecstasy of Automattic’s Jetpack

In a discussion on Twitter with the Internet’s @SiobhanPMcKeown (if you don’t know who Siobhan is, you don’t read many WordPress blogs) & @Krogsgard about WordPress themes with lots of options, I mentioned that I’ve been thinking about ways to justify removing options from Museum Core in favor of using plugins to accomplish those same things.  Case in point: using a plain textarea for custom CSS vs using Jetpack.  This led to the following comment:

The common critique of Jetpack is that it’s “bloated”.  In a market where more and more theme and plugin developers are advocating “less is more” and removing settings and options pages from their code entirely in favor of things that don’t require options, are always on and “just work”, Automattic takes a bit of the opposite route by bundling all of the built-in plugins and options available to WordPress.com users and stuffing them into Jetpack, often discontinuing development for the standalone versions of those plugins (e.g. After the Deadline).

To be sure, Automattic is taking the Google route of things with Jetpack: let’s users access to a bunch of different technologies, some of which they might not have asked for.  You can’t use just a few without getting everything, but if you have a problem with it, you can just opt out of the whole thing.  So, let’s take After the Deadline as an example.  After the Deadline (which was acquired in 2009 by Automattic) is a plugin that beefs up spellchecking to also do grammar and style checking on your posts.  It runs before the post is published (or sooner, if you click the icon in the toolbar) and gives you tips on things you’re doing wrong and (possibly) suggestions on how to fix them.  After ATD was bundled into Jetpack, Automattic said they would no longer support or update the standalone plugin, which means if you want the latest and greatest version of the plugin, you need to have Jetpack.

To compare with the Google analogy — imagine using Google Docs without the spreadsheet and presentation options, or Google Drive without it being tied into Google Docs, or Google+ without either of those technologies.  Jetpack, like Google, is the platform from which many interconnected features are offered and it’s not possible to extricate just those features that you want without getting the whole bundle (which is a bit contrary to the philosophy of themes and plugins for WordPress). As an aside, we don’t (typically) accuse Google of “bloatware” possibly because all of their services exist on the cloud — which is also the theory behind many of Jetpack’s features (in particular those that require Automattic’s hosted services, e.g. VaultPress, Akismet, WordPress.com stats and Comments.

Getting back to After the Deadline, if I just want to use ATD and nothing else, I need to install a plugin that currently bundles 14 other (free) plugins for things ranging from comments to sharing links, one optional premium service (VaultPress) and including the pay-what-you-want donation for spam filtering from Akismet.  (Like Google, Automattic is sneaking their premium services in with their free ones as a way to monetize their software.)  Hence the argument about bloat.

But let’s consider the alternatives.

Contact forms — If I want an easy-to-use contact form, I have a few options: use Delicious Days’ cformsII — not hosted on WordPress.org and therefore not able to be updated automatically, Rocketgenius’ Gravity Forms, a premium contact form plugin (and arguably the best), or something from WordPress.org.  In the WordPress.org category, the most popular is Contact Form 7.  However the user interface for CF7 is frighteningly counter-intuitive. Over the summer the Akismet team wrote a major update to Grunion which makes it much easier and intuitive than it was previously to build simple custom contact forms for most uses (for more complex forms, like conditional questions, you’ll still need Gravity Forms, but that’s not something you can get from the other free options, either).  Plus, Grunion has Akismet built-in to prevent spam.  Like Gravity Forms (but unlike other contact form plugins), Grunion stores all the messages sent via the contact form(s) on a Feedbacks page (which still bugs me because the word “feedbacks” doesn’t sound like a real word, but the utility overrides any English major critique I could make because I’m not actually an English major).

Mobile Theme — Previously, if you wanted your theme to look good on mobile devices, you needed to get a plugin for that or hope your theme was properly responsive.  With a recent update, Jetpack added a mobile theme, meaning all those third-party plugins and mobile-only themes you were using before can be disabled in favor of a clean, minimal, and easy-to-read mobile view for sites that aren’t currently using a responsive theme.

Stats — Most people want stats of some kind on their site, but Google Analytics can be confusing to set up and many Google Analytics plugins for WordPress don’t give you a visual of your stats in the dashboard (the only one, that I know of, that does is Google Analyticator).  For most people, WordPress.com stats is all you need, providing much of the same information you would get from a simple Google Analytics view without requiring all the setup that Analytics does. (Full disclosure: I use both WP.com stats and Google Analyticator.  This gives me two stats widgets on my dashboard that show me slightly different information as well as the stats page in the Jetpack menu.)

Comments — I’ve tried every major commenting system there is.  Seriously.  CommentLuv, IntenseDebate, Disqus, Livefyre and the core commenting system in WordPress.  Right now I’m using Jetpack Comments and I’ve been happy with it.  In terms of speed vs. other commenting systems that replace the existing core commenting system (IntenseDebate, Disqus and Livefyre), Jetpack comments loads faster than the others.  The interface is also much simpler, providing options to comment through the major social networks for logged out users, and a minimal comment form for logged in users or users logged into any of those services.  The lack of a name, email, and website form above the comment form makes the comment form look a lot more elegant and clean to my eye.

Custom CSS — Usually, you need to rely on your theme to do this for you or hack the code yourself.  This leaves you with two options — the Theme Editor or a simple textarea widget in your theme options page.  This is what I have in Museum Core now:

This is what you get if you use the Theme Editor (which also runs the risk of being overwritten by a theme update if you are not using a custom child theme):

This is what you get with Jetpack:

As you can see: SYNTAX HIGHLIGHTING! This makes making changes much easier because it’s easier to see what yo’re doing.  Also: revisions, so you can undo something you broke easily by going back to an earlier revision.  You can even opt to write all the CSS here and use that instead of the theme’s css to build a completely custom child theme without having to upload a whole new theme (so you can use something like _s on your live site and do all the CSS from the backend).  What you can’t see? It also auto-tabs for you when you do a line break after a bracket, and formats your CSS for you for readability.  (All the css gets added to the single stylesheet that is loaded with WP which means that it will be minified if you have a plugin that does that for you.)  The only downside is it doesn’t like loading resources from off-site and it will strip comments — if you need either of those things, you’re better off using your theme’s custom css editor, if it exists, or building a child theme.  This is by far my favorite feature of Jetpack, currently, and I’ve stopped using my own custom css editor in favor of the Jetpack CSS editor.

The end result? A collection of useful tools that can easily find frequent use on most sites.  Is it a lot of stuff? Sure, especially if you only want one or two of the options it brings. But if you are using more than that, or using those one or two a lot you may find yourself gravitating toward the built-in features of Jetpack, especially if you are able to get over the initial “wow that’s a lot of stuff” knee-jerk reaction.

WordPress isn’t a commercial success…wait, what?

Read this.  Then come back.  It’s okay, I’ll wait.

WordPress.com Blogs Garnered 23 Billion Pageviews in 2010

It’s the last paragraph the bugs me.

The five-year-old company may be experiencing remarkable growth, but it has yet to become a commercial success. The startup reportedly makes around $1 million per month from premium and hosting services, an inconsequential figure for a company that plays such a central role in web publishing.

Automattic makes $12 million a year spending most of their time developing free software and yet, they aren’t a commercial success?  What? Seriously, what? Matt & crew are some of the biggest and most public advocates for open source and the GPL.  Monetization, while obviously a concern, is not a focus, the focus is creating a great application that millions of people use daily for free.  $12 million a year for a team of maybe a couple dozen full-time employees?  Sounds successful to me.  The fact that they aren’t raking in the dough like Microsoft or Apple is a choice not a byproduct of failed marketing, and were they to go that route, I doubt they’d have the market share that most of that article reveals.

That Thesis Thing

Update 7/22/2010: Thesis adopts the GPL!

Over the last few days, the WordPress community has exploded into debate over one thing: Thesis and it’s restrictive, non-GPL-compliant license.  If you’re already familiar with the particulars of what Thesis is and what the debate is, you can skip the summary (to be honest, I’m sick of reading people rehashing the whole thing in order to provide enough background for casual visits, but I understand it’s necessry). I’ve taken the last several days absorbing all the information, the arguments on both sides, and held off writing anything about it until there was more information available.  As GPL-supported commercial themes developers, we’re a bit biased on which side of the fence Chris Pearson — the author of Thesis and DIYThemes — should be, the question is whether it is accurate to require him to comply with WordPress’ GPLv2 license.

What is Thesis?

Thesis is a WordPress theme, plain and simple.  What separates Thesis from some other commercial themes is its’ fairly exhaustive options pages which allow you to control various aspects of the front-end layout and design, as well as its claim of “airtight SEO.”  You have several pages of options allowing you to customize just about every aspect of the layout and colors of your site with an option to use custom-coding to expand it even more.  It promises “lightning-fast” page loads and encourages you to “just add killer content.”

Our initial bias

When we first started doing web design, particularly design based on WordPress, the internet was littered with requests to “customize Thesis theme.”  We took one look at what it was, and made a decision then to never work with it.  Our decision was based on this: if you have a theme that is built to offer unlimited customization options what’s the point of hiring a designer?  The entire point of Thesis is that you shouldn’t need a designer, and if you still do need a designer, obviously the theme isn’t doing its job.  At the same time, it’s easy to  understand without even looking what the pitfalls of a theme like that would be: the very fact that it offers unlimited possibilities is, in fact, more limiting than if it did not.  The typical user is not going to be able to look at a color wheel and say “yep, I want #EAFF63.”  They’re going to look at the range of 16 million colors, maybe pick a combination that looks horrid, and then ask someone else who knows what they’re doing to tell them what they want.  The entire point of hiring a designer to build a custom WordPress theme is that you don’t want to deal with the design elements or the coding, and would rather put your trust and faith in a professional who makes it their business to create attractive websites.  To us, customizing Thesis represented a conflict of interest.

What is GPL?

As stated on our GPL page, the GPL is a software license.  WordPress was forked from an earlier blogging platform that was no longer being developed, called B2.  B2 was released under the GPLv2 license.  Under the terms of the license, any derivative software, modifications, or forks must be released under the same license (or a later version of the license).  So, for example, WordPress could potentially be released under the GPLv3 license, but it could not be released under a more restrictive, proprietary license (like Thesis), or even an alternate open source license like a  Creative Commons license, BSD license or MIT license.  This is an important point, as there has been some discussion of WordPress simply adopting a less-restrictive license: they can’t.  By the terms of the GPL under which the original code was written for B2, WordPress cannot legally adopt another license.  Period.

Our bias towards the GPL

I’ve been a fan of open source for years, ever since I discovered that you could find a free, open source alternative to just about any application you were looking for.  I’ve dabbled more than a little with Linux and used a variety of different open source web software applications for different tasks.  When we finished building our Museum Themes and started getting the site ready for distribution, we were forced to think about licenses.  When Museum Themes was just an idea, licensing wasn’t something we thought about much.  We considered doing a user license and a developer license and a multi-use license.  But when it came closer and I was building up the site, I did extensive research on WordPress, the GPL, and the pros, cons, and debate about whether it’s even applicable (or whether that matters at all).  In the end, we embraced the GPL not because we believed, as derivative software, we’re required to use the GNU Public License or a GPL-compatible license ourselves, and not because StudioPress, WooThemes and many others have embraced it.  It came down to what we wanted to do with our themes and what we wanted our users to do with our themes.

I can — without question — understand not wanting people to steal your code.  We worked long and hard on these themes.  The last thing we’d want is someone else to sell them cheaper than what we are (or put them somewhere for free) after spending so much time on them and losing our fledgling business before it’s even had a chance to spread its wings.  So I can understand Chris Pearson putting a restrictive license on his software; he wants to protect his investment and his intellectual property.  On the other hand, we asked ourselves: what do we want our users to be able to do?  Do we want our users to take our themes and modify them to their heart’s content? Yes.  Do we ever want to limit or restrict how our users use our themes or in what context or otherwise prevent them from using it in any way they see fit? No.  We really don’t.  Do we want to be compensated for putting in weeks and months of hard work designing and coding and then maintaining this site and all future updates? Yes.  Would we be willing to fully offer support to users who purchased our themes through official channels? Absolutely.  Broken down into those terms, adopting the GPL seemed like a no-brainer, and a perfect fit for us.

So we have a partial bias towards the GPL, although we did explore all avenues when we were considering licensing for Museum Themes.

The argument

The debate comes down to this: Matt Mullenweg, founder of Automattic and WordPress, believes themes are derivative works, and therefore require a GPL-compatible license if you are planning on distributing your theme.

Chris Pearson, founder of DIYThemes and Thesis, believes the GPL doesn’t apply to themes, or to him, and doesn’t feel right about releasing his work under any license that requires you to provide the source for free.

There is no precedent in any United States court on this topic, though a some related cases have been tossed around.  According to Matt, in the United States, any time the GPL came into question on an issue like this, the major companies have backed down and settled out of court.

Chris Pearson cites a Florida lawyer’s analysis on the GPL as it relates to WordPress themes, and ultimately determines that themes are not derivatives, fall within the scope of “fair use” and, therefore, the GPL not only does not apply, but doesn’t matter.

Matt Mullenweg asked the Software Freedom Law Center (a pro bono consortium of legal experts with regards to the GPL) to analyse the way WordPress used themes and provide their analysis.  They determined that themes, based on how they interacted with the core WordPress software, were derivatives and therefore fell under the scope of the GPL (although images and CSS files didn’t need to be GPL explicitly since they had no direct relationship with the core WordPress functionality).

And so the debate has been.  Now we’re all caught up to right about where we were last Wednesday when two things happened almost simultaneously: 1) Bill Erickson, a WordPress developer and consultant was dropped from the list of WordPress consultants on the official WordPress site for endorsing Thesis and 2) Thesis 1.7 and 1.8-beta downloads were injected with malicious code.  This started some heated comments to get thrown back and forth on Twitter by both Pearson and Matt Mullenweg and their respective legions, culminating in both appearing live on Mixergy to duke it out (figuratively).  (You can listen to the replay, watch the whole thing, or read the transcript on Mixergy.)

As much as I’d like to, I won’t get into the actual debate and some of the classic comments that will likely be tossed around the internet for months, if not years to come.  The Reader’s Digest version is this: it amounted to nothing.  Both parties were pissed off (though Matt did a much better job of handling it diplomatically while Chris seemed to be verging on hysteria for the last half of the interview), but in the end, Chris Pearson said he would be “personally fraudulent” if he adopted any sort of license that went against his own personal beliefs (in adopting the GPL).  Furthermore, he said the GPL was one of those laws that wasn’t enforceable, comparing it to a Georgia law that prohibited blowjobs.

Despite claims of “character assassination” that Chris made on Twitter, really, the only character assassin by the end of the interview — if there was one — was Chris himself.  However, anyone who’s followed him for any amount of time would know that this is not a new thing.  He’s always been brash and argumentative, verging on nonsensical at times with his perpetual habit of getting lost in tangents and forgetting the question.  Here he is bullying a poor Thesis fanboy into pulling down the theme he created that was designed to emulate (at least in appearances) Thesis.  Here he is going ballistic about Matt Mullenweg giving credit to the open source community for the 7 year anniversary of WordPress.

Chris Pearson’s personality does not prove or disprove the issue of GPL violation.  It doesn’t look good, and certainly explains (at least to some extent) his resistance at adopting the GPL, but it doesn’t matter no matter how much his attitude seemed similar to a person walking into a grocery store and saying “I don’t really feel like paying five bucks for these apples, here’s one, which is what I feel they’re worth.”  At this point in the story, that’s where things would sit.

Discussion

Various theories and arguments have been tossed back and forth.  The, now standard, defense that themes are not required to be GPL and it doesn’t matter anyway by Mike Wasylik continued to be Thesis’ main defense.  He contends:

It’s just not enough to say that themes running on top of, and using function calls from, a piece of software are “derivative” of that software. If that were the case, then any software application would be a derivative work of the operating system it runs on – such as Windows, Linux, or OS X – which in turn would be a derivative work of the software hard-coded into the chips running the computer. For that is the way all software works, down to the bare iron – it sits on top of, and makes function calls to, the software layer beneath it, until to get down to the silicon pathways in the chip itself. No software could run without those lower layers, and nothing is truly independent of them. But “dependent” and “derivative” are not the same thing.

Programmer Drew Blas sums it up this way:

The long and short is that SFLC’s opinion could be applied to any software that runs on Linux. Meaning you could never have a closed-source software product running on the linux kernel (“Oh, your code calls fork()? GPL!”). It is commonly accepted that simply integrating with an existing product does not produce a derivative work. If your code is totally your own, the GPL has no say over how you license it.

However, WordPress’ lead developer Mark Jaquith has a well-written counter-argument to that the thesis to which is that “themes interact with WordPress (and WordPress with themes) the exact same way that WordPress interacts with itself.”  ”They do not run separately,” he says.  ”They run as one cohesive unit. They don’t even run in a sequential order. WordPress starts up, WordPress tells the theme to run its functions and register its hooks and filters, then WordPress runs some queries, then WordPress calls the appropriate theme PHP file, and then the theme hooks into the queried WordPress data and uses WordPress functions to display it, and then WordPress shuts down and finishes the request. On that simple view, it looks like a multi-layered sandwich. But the integration is even more amalgamated than the sandwich analogy suggests.”

I’m not a software developer, or a legal expert (this much should be obvious), but it seems to me, using the same Linux comparison, that this would be less like a single application running on the Linux platform (which would be allowed under the GPL if the application didn’t call any GPL-specific libraries or functions or include any GPL code) and more like an entire distribution of Linux (Ubuntu, RedHat, Slackware, Gentoo, etc).  Sure, for the 5 seconds it takes to boot up to GRUB, you’re free and clear, but everything after that is touched by the specific distribution, from the loading screen to the desktop environment.  Saying that could be released under a non-GPL license would mean that all the software used in that distribution would need to be proprietary — no GPL software could be used as part of the closed-license distribution.  It’s like booting up Linux and getting a Windows desktop instead.  (In recent history SCO attempted to claim copyright over Linux code, which would have resulted in Linux users and developers being required to pay a royalty fee to use it.  They lost.)

But then the plot thickened…

See, the derivative (or not) argument is an interpretation.  Now, granted, it’s an interpretation that Joomla! and Drupal both stand by, but still, it’s an interpretation, and whether it would stand up in court is the subject of much debate.  However, after a couple WordPress developers (Andy Peatling & Andrew Nacin) started picking through Thesis code, they found lines that were literally copied and pasted from WordPress into Thesis — a clear GPL violation.  That prompted a programmer, the aforementioned Drew Blas, to write a script that compared Thesis source code with WordPress and identified each bit of substantial code that was obviously lifted from core WordPress.  And that lead to the discovery of what has come to be known as the “copy pasta,” a chunk of code deliberately lifted from WordPress that included this comment:

/**
* This function is mostly copy pasta from WP (wp-includes/media.php),
* but with minor alteration to play more nicely with our styling.
**/

This was added by Rick Beckman (aka KingdomGeek) when he was working for DIYThemes, which he acknowledges on Matt’s blog.  Even the liberal “fair use” argument would no longer apply if large chunks of code were lifted from WordPress.  And this throws a major wrench in Thesis’ operation.  Because even if Chris Pearson removes the offending code (which he says he is working on), all previous versions of Thesis are still GPL.  And arguably, any subsequent versions of Thesis would be considered derivative works and therefore the GPL would still apply.  The only way to avoid the issue entirely would be to rewrite all of Thesis.  Good luck with that.

The thing is, Thesis isn’t even all that fantastic.  From a design standpoint it’s okay, but nothing phenomenally groundbreaking.  As a designer who has worked very closely with users, though, I can guarantee that putting a color wheel and allowing your users to choose the colors for their site is a monumentally bad idea (it’s why we don’t do it).  The problem is that all those options, all that unlimited possibility is overwhelming.  It’s why people buy Thesis and then hire a designer to customize it for them.  It’s failing to do its job.  Other themes, or theme frameworks, can do similar things without as much headache: ShiftNews by WPShift has a lot of the same sorts of customization options and Thematic by ThemeShaper has a solid framework upon which to build child themes.  For that matter, we took all these things into account when we were building Museum Themes, and provided ways to allow you to customize your blog design without making it look like this.  It was sort of the point behind Museum One.  Even then, though, we were careful not to put too much stuff so as to overwhelm casual users, and I think that’s Thesis’ main failing.

Honestly, I can’t see Thesis continuing to be a lasting one-trick-pony.  Increasingly, free and other GPL-compatible premium themes are able to match any level of originality or innovation Thesis may once have had.  And if 1.7 (and many previous versions) are GPL from the code that was copied from WordPress, then Chris Pearson’s worst fear may come true — someone re-releasing it for free, protected by the GPL, or else using it as a framework for another competing theme.  Chris Pearson was right about one thing: users don’t (generally) care about the GPL.  But that’s fine, because they don’t have to; the GPL only really applies if you intend to distribute your theme.  Additionally, it gives you permission to modify the code as much as you please (compare that to a typical Microsoft EULA which defines the terms under which you can use the software, and manipulating any core systemic functions or hacking the software to add customization options or additional functionality is expressly prohibited).  However, a look at Matt’s Twitter stream over the days since he and Chris debated on Mixergy gives evidence that people do care about software licenses, and they care if their theme violates the license under which the software it uses was released.  The cat is out of the bag, and there’s no way to shove it back in.  It will be interesting to see how this progresses and what effect it has on WordPress themes in general, and Thesis in particular.

You might also be interested in these:

  1. Gee, there’s a thought…
  2. How to upgrade your Museum Theme to the most current version after you’ve made changes to the files
  3. 12 Free WordPress Themes I Like (and you should, too)

12 Free WordPress Themes I Like (and you should, too)

Just because we built free WordPress themes and Museum Themes doesn’t mean we can’t appreciate the good work of others.  In fact, it’s through watching what’s going on in the greater WordPress theme community that gives us ideas, keeps us on our toes, and informs us of trends and what people are interested in.  Here are some interesting free WordPress themes that I like.

In no particular order:

1. P2, by Automattic

P2 is a revolutionary concept for a WordPress theme, namely — make WordPress act like Twitter.  P2 live updates allowing realtime commenting on posts.  Anyone with an account can post something, and, since it’s WordPress, what you can post ranges from a short tweet, to a full length post with multimedia content.  Matt Mullenweg even said that P2 changed the way Automattic communicated.

p2 750x432 12 Free WordPress Themes I Like (and you should, too)

View Demo | Theme Homepage | Download

2. Modern, by Ulf Petersson

Modern has been around for a few years (when it was released in its final 0.9 version, the latest browsers were Opera 9 (beta), Firefox 1.5, and Internet Explorer 6), but it still looks…well…modern.  The reason is its minimalist simplicity which gives it a timeless look.  The subtle splashes of color against the mostly white and light-gray backgrounds give the theme a playful and welcoming feeling.

modern 750x432 12 Free WordPress Themes I Like (and you should, too)

Theme Homepage | Download

3. Motion, by 85ideas

Motion’s dark, textured light and watercolor background and dark semi-transparent borders and frames tell me that this is a designer after my own heart.  It’s truly a gorgeous blog theme with a cool ocean-on-a-clear-day palette.

motion 750x432 12 Free WordPress Themes I Like (and you should, too)

View Demo | Theme Homepage | Download

4. Pixel, by 85ideas

Another theme by 85ideas, pixel also uses semi-transparent backgrounds, this time playing with concepts of light and dark.  A mostly-dark theme, Pixel has a lot of the same design ideas as Microsoft’s Windows Aero, responsible for that attractive glass-like effect in Windows Vista and Windows 7.  Pixel is perfect for a tech- or design-centric blog.

pixel 750x432 12 Free WordPress Themes I Like (and you should, too)

View Demo | Theme Homepage | Download

5. Piano Black, by mono-lab

Piano Black is a stunningly beautiful theme that makes you feel like you’re inside the machine.  The use of light and shade, dark transparencies, and bright hover colors over the gray and black background allude to LED displays on dark plastic and metal.  This theme uses WordPress 3.0 custom menus and jQuery sliding effects for dropdowns, back to top links and a lovely image zoom feature.

pianoblack 750x432 12 Free WordPress Themes I Like (and you should, too)

View Demo | Theme Homepage | Download

6. Retromania, by Jay Hafling

We’re well acquainted with how hard a sell it is for niche themes to catch on.  The general rule is to appeal to the critical masses, get lots of hits, links and downloads, but it’s often at the risk of doing something really interesting and creative with design.  But by no means does that mean that they shouldn’t be done, and Retromania’s kitchy 50s throwback feel is definitely worth checking out.  He even has PSD source files available to download if you don’t like the default header images (of course, you’d need PhotoShop or something else that knows what to do with a .psd).

Theme Homepage/Demo | Download

7. Urban Life, by Jay Hafling

Another one by Jay Hafling, Urban Life shares Retromania’s light grunge, but rather than being vintage-centric, this one has an inner city vibe, with a city skyline in the header (silhouetted in the footer) and a striped band in the header and behind the sidebar boxes evocative of Warning! signs or caution tape.  Urban Life also has a built-in contact form (some configuration required), which lightens up the load on your site by eliminating the need to pull in a plugin to do that for you.  For those inclined to work in Photoshop, he also has his Photoshop source files available for this one as well.

Theme Homepage/Demo | Download

8. Mimbo, by Darren Hoyt

Darren Hoyt’s name is known in the WordPress theme community, and part of that is a result of this theme.  Mimbo is an oldie-but-goodie, packing dual-navbar action, configurable sidebars, and a home page layout that could make lesser news sites weep.  For developers, it can be used as a theme framework, upon which child themes can be built.  Darren Hoyt is also responsible for TimThumb, the little script that’s been pretty much single-handedly responsible for displaying post thumbnails on blog pages until WordPress added that feature in 2.9.  Now almost 3 years old, Mimbo still holds its own in magazine-style themes.

mimbo 750x432 12 Free WordPress Themes I Like (and you should, too)

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9. Dark Zen, by DailyBlogTips

Dark Zen is a minimalist theme suitable for just about anything you could want to use it for.  It has a simple, stylish design with a spacious sidebar, built-in social bookmarking and room for adding banner- and sidebar ads.  If you’re looking for something to use as a theme framework for something new, the bullet-proof layout of Dark Zen is a good choice.

dark zen 750x432 12 Free WordPress Themes I Like (and you should, too)

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10. Structure, by Organic Themes

Structure knocks my socks off.  It’s simultaneously bold and minimalist, with huge post thumbnails and multiple columns.  In that sense, it’s similar to Mimbo with a bigger featured content area, but it’s taken to a whole new level with the jQuery slider for featured posts (only available in the premium version).

structure 750x432 12 Free WordPress Themes I Like (and you should, too)

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11. The Morning After, by WooThemes

The Morning After is quite possibly my all-time favorite theme, ever.  The story goes that the author, Arun Kale, surveyed WordPress users and asked what they’d like to see in a magazine-style theme and The Morning After is the result.  Just a few weeks ago, the Arun contacted WooThemes and asked them if they’d be interested in taking the reigns for developing and maintaining TMA, and it is now, officially, a WooTheme.  TMA has a unique, slim header image that can be customized for different pages.  It’s got different styles for Asides (now called Updates) and built-in post thumbnails.  It’s got a little configurable description area above the sidebar on the home page and different page layouts depending on what you’re looking at.  It is, in short, awesome.

the morning after 750x432 12 Free WordPress Themes I Like (and you should, too)

View Demo | Theme Homepage | Download

12. Mansion, by Graphpaper Press

Wow.  I’ve seen some interesting grid layouts for themes, and I’ve seen some awesome photography themes, but this one tops both.  Bearing more in common with an image gallery than a blog, Mansion creates a mosaic of images pulled from your posts that can be sorted by category.  It also comes with a page template for your blog, which takes a similar approach to your posts.  Images gently light up when hovered over, as does the navigation area.  And all of it sits on top of a black background, giving it a lightbox-like effect.

View Demo | Theme Homepage | Download

Of course, I can’t end a post on free WordPress themes without so much as a nod at our own free themes area.  And as I said, we often take inspiration from other themes.  So, you think there’s some ideas brewing for new themes in our devious little brains?  As Sarah Palin would say, “you betcha.”