Comment Re:How WordPress Works, and Why the Authors are Ri (Score 1) 571
You do not understand how WordPress and WP themes work.
I understand exactly how WordPress and its Themes (and plugins) work. I've been running self-hosted WP for five years, and have been working with Themes for pretty much that entire time. I also have a handful of plugins that I have developed and/or forked.
They are not standalone applications that "call" WordPress.
The Theme is loaded by WordPress. The theme is completely dependent on Wordpress and cannot function without a working copy of Wordpress.
Based on that, I'd say the derivative work argument has some merit, but less than an argument based on incorporation.
By contrast, you don't seem to understand how copyright law defines "derivative work", which has absolutely nothing at all to do with degree of dependence upon a protected work. Again: see the Game Genie in Galoob v Nintendo or Sega Genesis-specific video games in Sega v Accolade. Incorporation is not a consideration, it is the only consideration.
All you do when you split hairs like this is go from violating the license to willfully violating the license and showing your intent is to skirt the agreement.
What agreement? Unless a work is derivative of WordPress, it is entirely unaffected by WordPress' GPL. A developer who makes his own original work (a Theme) has made no "agreement" with WordPress, and has done nothing in violation of WordPress' license.
None of which will endear you to juries, judges or copyright holders. After all, it's the opinion of the copyright holder that will land you in court, and the opinion of the jury that will determine facts, and the opinion of the judge that will limit your ability to advance your case.
I have yet to see anyone cite even a single court case that refutes my position. I've cited five that set the precedent: Brown Bag, Altai, Sega, Galoob, and Sony.
Also, your suggestion that it's ok to sell a product that cannot be used by the buyer without breaking a license agreement is a bad idea.
Now you're just putting words in my mouth. Where did I ever say any such thing? By the way: end-use (anything not involving distribution) is expressly stated by the GPL itself as being outside its scope. So, there is no such thing as non-distribution use that "breaks" the GPL.
Finally, it's probably bad business to piss off an open source community over the terms of the license that lets the community exist to begin with. EVEN if you are within your rights to do so.
On this point, I certainly agree. Look, I release under GPL everything WordPress-related that I develop. I do so because I appreciate what a great product WordPress is, and I appreciate the help others have given me in helping me use it. I consider any minimal contribution I can make with respect to Themes or Plugins to be the least I can do to give back to the community.
I also think that the WordPress community should be free to promote and encourage100% GPL third-party extensions (especially in the Plugin and Theme repositories).
I just don't think that such encouragement should claim legal backing for such a position, where no such backing exists.