Filed under: copyright, distribution, enforceability, license grant, open source, source code
I saw an intriguing post the other day by Jennifer Schiffer on WordPress, themes and the GPL. She linked to a video of Matt Mullenweg (one of WordPress’ lead developers) who was talking about why WordPress was a GPL product (short answer: they didn’t really have a choice because WP is based on b2, which was GPL) and, more specifically, was talking about why themes and plugins are also then GPL.
The truth of the matter is that the GPLv3 is a very restrictive license, in as much as it’s also a harbinger of freedom. The GPL was written in a way to specifically retain the freedoms it grants through successive iterations of a particular product, or its add-ons. This means that if you like a GPL product, develop a derivative work, a modification, a plug-in or any other type of add-on, the resulting work is also going to be covered by the GPL (you do not have a choice in this).
“You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License.” – Section 10 of the GPL
This means that unless the WordPress GPL (yes, they’re specific by product… you can ADD restrictions if you want… so no 2 GPL’d products are necessarily identically licensed – we’ll talk about this in a minute) allowed for a theme developer to restrict the distribution of a theme, a theme developer isn’t allowed to add that restriction on their own. Your development on a GPL product inherits the license of the original product.
Inheritance is a powerful concept because it creates license congruity, ad infinitum, for all downstream works of the original code. It would be extremely difficult to manage license compliance if WordPress had one license, but a plug-in had a different one.
But there’s apparently a wonderful new theme available for WordPress called Thesis. Its developer sells two several different versions of the theme (selling under the GPL is fine). The problem comes to light when you look at the options:
- Personal: one site only; footer link must remain intact; can’t re-sell theme or modifications
- Developer: can create multiple sites and must pay Thesis developer for each site deployed; can remove footer link; can’t re-sell theme or modifications
And these options are problematic because they violate the GPL v2 under which WordPress is licensed. Specifically, Section 2, which states, in part:
“You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.”
and Section 6:
“Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.”
(Note that v2 and v3 of the GPL are vastly different animals… and v2 was actually more in the realm of “free as in free beer” than v3, which touts freedom as “free as in free speech, not free beer”.)
So, in fact, the Thesis theme, as a WordPress derivative work, is bound to the GPLv2 license that WordPress is licensed under. As such, even the sale of the theme is a problem, as are the one-site-only restrictions and the “can’t re-sell” restrictions. Note: the footer link restriction is probably fine, as it could qualify as the attribution allowed under the GPL. Additionally, it could be argued that the fee charged is for the “physical act of transferring a copy” as allowed by Section 1 of GPLv2, but even then, the remainder of the unauthorized restrictions are still problematic.
But who is going to do anything about this violation? Who has the right to enforce the license? WordPress? The folks at b2 (WordPress’ predecessor)? Any particular end user? Technically, it’s the folks at WordPress who have the right to enforce their license upon theme and plug-in developers. They have the ability to potentially even sue to prevent a rogue developer from violating their license with WordPress [though I’m guessing that a theme developer is going to try to argue that a theme isn’t a derivative work or a modification]. But this is inherently difficult. So instead, WordPress is taking a slightly different tack. They’re going to create a Theme Page on the main WordPress website which only lists themes that follow the GPL (by the way, all derivatives have to be GPLv2 licensed, as the WordPress license doesn’t allow for newer versions of the GPL to apply). I’m guessing that Thesis won’t be listed.
Many of the technologies we use every day come with a license agreement of some sort. You might not even realize that it’s so because of where you are in the transaction chain – either as a buyer or as a seller. Content, for instance, is created, licensed/sold, packaged, re-licensed/re-sold, bundled, re-licensed/re-sold, and on and on so many times that you can hardly figure out who actually created much of what you read online. This is important, especially insofar as you want to be sure of who is providing the information that you use to make decisions, but also because as information is licensed/bundled/re-licensed over and over, it’s possible that the content creator isn’t getting what they earned as part of the transaction (namely, credit/attribution and/or payment).
Several services have popped up recently that are allowing content to move from one format to another – especially on Amazon-related products and platforms (ie: the Kindle). More specifically, Amazon is now allowing blog authors to license content for packaging and distribution on the Kindle, with the blog author receiving about 30% of the revenue generated from the license price. So, if I were to want this blog to be available as a Kindle subscription for say, $1.99, I would get $.31 for every subscription. But there’s a problem, Amazon has a license agreement that I would have to accept in order to make this happen. And this license agreement also gives Amazon the right to bundle and resell my content in other forms, too, without paying me for it at all. [For a full conversation on this, see this great post by Edward Champion.]
Additionally, Amazon’s current system doesn’t actually even check to see if I’m the owner of the blog I’m submitting into the Kindle Blog service! So I could create an account, submit any of your blogs as my own, and in just a few clicks, create Amazon entries for your blog’s content – even competing with the “real” listing (if you so happened to have agreed to the terms as well and started using the service).
So, for the record, while I love Amazon for a bunch of reasons, this blog is NOT being made available as a Kindle subscription. It is, however, being posted ON Amazon as part of Amazon’s author services… so you can read the individual postings if you go to the Software Licensing Handbook
One of the greatest inventions of the 20th Century was the Post-It. Created completely by mistake by the awesome folks at 3M, I’m sure all of you use them on a daily basis. In the last few years, 3M has continued to innovate with the Post-It, tape flags being an excellent post-Post-It product. The tape flag style I use most is the “Sign Here ->” flag.
You’ve seen them, right? They have a yellow tab with red writing and a red arrow that you align with the place you’re looking to have someone sign.
I love these little pieces of cellophane for the sole reason that they help get my documents signed. Yes, really.
One would think that contract signatures would be a no-brainer. That somehow folks would understand that without a signed contract, there is potentially no contract at all. But alas, such is not the case. In almost every organization I’ve ever worked, there are almost always a slew of documents that are sitting in the contract files, but aren’t signed.
When I ask about these documents, I get a variety of answers.
“I dunno.”
or
“Oh, we only need THEIR signature…”
or my personal favorite:
“Well, the work was already done, so what did the document matter? Who cares if it was signed?”
I care. I care because I know what can happen when there’s a dispute and no fully executed agreement. I care because I understand that people forget things with time. I care because details matter… and the final steps of closing a deal are just as (and perhaps more) important than those at the beginning.
Get your contracts signed.
Use tape flags, smoke signals, bribes. My most successful method is to hold up payment until I have the fully-executed document. This technique even works from both sides, as the vendor wants to get paid and the customer wants to not be late with payment. So, whomever is “slow” with signature will be prodded by the other for you.
Simple.
Oh, and as long as you’re doing that – get originals, not faxed or e-mailed/scanned copies. Nothing is better in your hands to know that you have your ducks in a row. And if you’ve got your ducks lined up and quacking in unison already, start asking for signatures in blue ink so you can always distinguish originals from copies. Then scan your originals after full execution into a searchable contract management system.
Don’t worry, there will still be a regular Tuesday posting… but I just saw that the Software Licensing Handbook was selected by the National Contract Management Association as the April, 2007 Book of the Month!
I’ve never received this kind of recognition before, so it’s exciting to me. Thanks for letting me share. I’ll now return you to your regularly scheduled programming, but stay tuned for an exciting announcement next week!
Thank you to everyone who is responding and sending in comments, suggestions and praise for this handbook! I really appreciate the feedback and I value your input.
I’m contemplating offering this guide via Amazon and Barnes & Nobles (the traditional route, I suppose), but to do so would mean an increase in the sales price, which I’m not fond of. Please then, help me support lulu.com in their quest to offer affordable publishing for all authors!
Thank you!
NET(net), Inc. 