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Comment: Re:How WordPress Works, and Why the Authors are Ri (Score 1) 571

by chipbennett (#33044600) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd

Spouting off cases as if they might be precedent, or represent the law of the land in a contract dispute should be left to attorneys arguing before judges. Someone may read your poorly thought out and dangerous legal opinion and act on it with dire and expensive consequences in the future.

"Poorly thought out and dangerous legal opinion"? Are you referring to my comments in this thread, or in my original blog post in which I explained my reasoning?

Here's why you are completely and utterly wrong to base your theory on your trinity of copyright cases:

Not three, but five. You left out Sega and Sony.

Gallob v. Nintendo - This case legalized the Game Genie. It would be tough to explain how a game genie works just like a word press theme, mainly because what amounts to an idiot proofed hardware debugger isn't the same thing as blogging software.

One doesn't need to explain how the Game Genie "works just like a [WordPress] theme". That's not the point of the reference. Rather, the point of the reference (and the reason the ruling is germane) is that the court ruled that that Game Genie, which is wholly dependent upon the Nintendo-copyrighted Nintendo gaming console, was not a derivative work of that system. One of the main points of Galoob is that dependent does not equal derivative.

Brown Bag - I'm assuming you are talking about the look and feel lawsuit and not the adult toy lawsuit. This case was about the Brown Bag feeling that their GUI was similar to a Symantec product (I seem to recall it was outlining software). The GUIs were so different that the judge looked at the screens of both and immediately (as in pre-trial summary judgment motion) ruled in the defendant's favor.

Brown Bag is germane in that it moves legal precedent away from the previous tendency of broad-construction determination of "derivative work", culminating in Whelan, toward a much narrower construction. Where Whelan considered the overall purpose of a computer program, Brown Bag set the precedent for digging much deeper. Essentially, the abstraction level changed with Brown Bag. Quoting from myself: Brown Bag appears to indicate that an analytical dissection of WordPress and a WordPress Theme would have to result in some tangible similarity of copyrightable content. This dissection is further clarified and defined in subsequent court rulings. (Which brings us to Altai.)

Computer Associates v. Altai is a case about employee misappropriation of code where somoene left CA and went to Altai, and took a program with them. By the time CA sued, Altai had re-written the sofware and removed all CA code. The court ruled that the current version Altai's product did not infringe and that CA had sued the wrong party for the initial version - Altai was not liable (because the infringement was long gone in the porduct), but the former CA employee who stole the code might be (the employee was never sued - probably blood from a stone).

Altai is germane, because its process for determination of derivative-work copyright infringement has been used in essentially every subsequent software copyright infringement case. No court since the Altai ruling has used a Whelan-type construction. Again quoting from myself: Altai has become the controlling precedent in defining the method for determining whether one computer program infringes another’s copyright, superseding the precedent set by Whelan. The Altai court established the Abstraction-Filtration-Comparison test, which analyzes increasingly lower levels of abstraction, filters out non-copyrightable code, and then performs a comparison of what remains. With respect to WordPress, this process would almost certainly filter out the WordPress function calls and filter/action hook references as merger/scenes a faire processes and methods necessary to implement interoperability.

I would probably fire an attorney that tried to convince me to use the set of irrelevant cases that you are citing as precedent. More than likely you would end up losing on pretrial motions because these cases are simply not relevant, and the judge would see that the plaintiff is simply trying to bamboozle the court. It would be embarrassing, expensive and probably waste a lot of everyone's time.

Fire away, then. But before you do so, I would advise you to at least try to find any relevant case law that refutes the above arguments. I couldn't.

Now on to your use of language to advocate your position. You say the words "derivative work" and "incorporation" mean something very specific in copyright law. They do. But courts are not restricted to using only Black's to understand the English language.

Of course they're not so restricted. The way that the Copyright Act was designed was to provide a general framework, which would be further clarified by the courts. It is not the dictionary upon which a legal argument is based, but rather precedent case law. I've cited five precedents; I have yet to see anyone cite even a single precedent that refutes the conclusions based on those precedents.

At the end of the day, though, one of the legal (meaning from the law dictionary) definitions of "incorporation" seems to fit the context of the GPL perfectly:

"To cause to merge or combine together into a united whole."

Which perfectly describes the combination of a WordPress theme with WordPress itself.

To my knowledge, nobody has argued against the assertion that running a WordPress Theme with WordPress constitutes a combination of WordPress + Theme, and therefore that combination represents a derivative work. However:

1) That combination is made not by the Theme Developer, but rather by the End User. The Theme Developer, in developing the Theme, does not make and distribute the combination you describe.

2) That combination exists only in memory. There is a seemingly reasonable argument (one I've not addressed/researched, nor do I really care to) that merely aggregating WordPress and a WordPress Theme on a web server does not represent a permanent-form incorporation, since the combination only happens in memory, by the PHP interpreter.

The GPL is one of the best thought out license agreements out there. It does what it's supposed to do. It's been around for a long time and has generally held up when litigated.

Personally, I think that it's not often litigated because the risk/reward isn't great enough, either for the copyright holder or the alleged infringer. Thus, most GPL-related copyright infringement issues are settled or handled out of court.

The fact that it is not often litigated speaks volumes: it's unwise to litigate against such a clear contract that so clearly expresses the author's willingness to share, so long as you share, too.

Interesting that you call the GPL a contract. It is the contention of the FSF - or, at least Eben Moglen - that the GPL is a copyright license only, and explicitly not a contract. Also, there are several people who believe that the GPL isn't on as secure enforceability footing as you would imply. I hazard no guess either way on that matter. I just think it's prudent to point out that there is no consensus on enforceability of all aspects of the GPL.

// Enjoyed the spirited discussion.

Likewise.

Comment: Re:How WordPress Works, and Why the Authors are Ri (Score 1) 571

by chipbennett (#33027708) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd

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.

Comment: Re:How WordPress Works, and Why the Authors are Ri (Score 1) 571

by chipbennett (#33021412) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd

In a legal sense, calling functions is not incorporation.

Here's the difference: merely calling wp_list_comments() is not incorporation, as defined by copyright case law. However, copying from WordPress and pasting into a Theme the actual code that is defined by wp_list_comments() does constitute incorporation.

Calling functions is perfectly acceptable, with respect to copyright. Doing so does not cause the Theme to be derivative of WordPress. Again, see the decisions in Altai, Sega, Sony, and Galoob.

Any actual combination of a WordPress Theme and WordPress is performed not by the Theme developer, but rather by the end-user, at run-time, via the PHP interpreter. It is that combination, and only that combination, that could even possibly be considered a derivative work. Prior to that combination, the Theme itself is in no way whatsoever inherently derivative of WordPress.

Comment: Re:GPL people make it clear in their FAQ (Score 1) 571

by chipbennett (#33017252) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd

The question posed was whether or not Themes are inherently derivative of *WordPress*, which they are not. Now, I certainly concede that a Theme could be derivative of another *Theme*. But I would also contend that *almost* all PHP in a template file is non-copyrightable (functions.php is another matter altogether).

As for the line of code you quoted: I don't see anything copyrightable in it. (Trademark might be another matter, if the developer of the Erudite Theme trademarked the Theme name "Erudite".) It's nothing more than a function call, using defined arguments and the defined method of operation for internationalization of text strings.

Most of what is copyrightable in *any* Theme is going to be in the images, CSS, and JS - with perhaps some of the functions defined in functions.php. So, any resemblance between a standard Theme template file (index.php, single.php, archive.php, header.php, footer.php, etc.) is going to consist of non-copyrightable function calls and semantic markup.

(I also concede that any blatant plagiarism - be it from WordPress core or from another Theme - would strengthen (but not guarantee, depending on what was copied) the derivative argument.)

Comment: Re:GPL people make it clear in their FAQ (Score 1) 571

by chipbennett (#33016322) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd

If you unzip a wordpress theme in a publicly viewable directory and point a web browser at it, will it return an error message? Will it complain about not being able to find wordpress?

Being as you will get an error message complaining about lack of wordpress, you will have a long road to convince a judge and jury that it is not a derivative work.

That has absolutely nothing to do with determining whether or not a Theme is derivative of WordPress. Simply put: "dependent" does not equal "derivative".

If you put a Windows .exe on a Linux box (without WINE) and tried to run it, you would likewise get errors. That outcome does not mean that the .exe is *derivative* of Windows.

To be derivative of WordPress, a Theme must incorporate, in some concrete form, actual code from WordPress.

...the fact that almost all wordpress themes copy GPL code...

The vast majority of Themes do no such thing. No GPL code is copied from WordPress into a Theme. Themes merely use function calls and the like, which, per applicable copyright case law, is non-copyrightable as "method of operation" content.

Automattic has a good enough case that almost every IP attorney I know would take their case (the one exception hates litigation, and spends her time on contracts)

I question whether the pool of IP attorneys that you know is a representative sample of all IP attorneys. Besides, unless any of them come out and say that they would take such a case, I don't believe it.

Comment: Re:How WordPress Works, and Why the Authors are Ri (Score 1) 571

by chipbennett (#33016156) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd
The key point that you are missing is that, according to the Copyright Act and applicable copyright case law, no incorporation has taken place. If the authors of the GPL are saying otherwise, then, yes: I'm saying exactly that they don't know what "derivative work" means, as defined by copyright law. Having heard what Matt Mullenweg (and the SFLC) has to say on the matter, I am convinced that his interpretation of "derivative work" is at odds with copyright law.

Comment: Re:Marketing (Score 1) 571

by chipbennett (#33014840) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd
That "one idiot in Florida" is a laywer who does happen to spend part of his practice time on copyright law. That the "advocates" are all in unison is entirely irrelevant. Consensus among the "advocates" does not trump the Copyright Act and applicable copyright case law in defining "derivative work". Further, it's not just (or even primarily) the Galoob case that Wasylik (the "idiot in Florida") references that refutes Matt Mullenweg et al. See also Computer Associates v Altai, Sega v Accolade, and Sony v Connectix.

Comment: Re:Software Freedom Law Centre analysis (Score 1) 571

by chipbennett (#33014744) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd
First, their interpretation that mere linking causes a work to be considered derivative is at odds with applicable copyright case law. Second, note the key assumption in the analysis:

and considering those themes as if they had been added to WordPress by a third party

The as if they had been added assumption is critical to their analysis - and has absolutely no bearing on the circumstance of a Theme developer distributing his Theme, wholly separate from WordPress core.

Comment: Re:I don't buy it. (Score 1) 571

by chipbennett (#33014474) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd
Dependency does not constitute derivative, as per the Copyright Act and applicable case law. For specific reference, see Sega v Accolade and Galoob v Nintendo. In the former, Accolade made Sega Genesis-compatible video games. In the latter, Galoob made the Nintendo-specific Game Genie product. The courts considered neither to be a derivative of the protected work on which they depended.

Comment: Re:I don't buy it. (Score 1) 571

by chipbennett (#33014422) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd
Again, the GPL doesn't define "derivative work". Rather, the Copyright Act and applicable copyright case law define "derivative work". And the Act and prevailing case law do not consider mere linking to meet the standard for considering a work derivative, which is that a work must incorporate, in some concrete form, copyrightable code from a protected work in order to be considered derivative.

Comment: Re:I don't buy it. (Score 1) 571

by chipbennett (#33014334) Attached to: WordPress Creator GPL Says WP Template Must Be GPL'd
The GPL is a copyright license that derives its validity from the Copyright Act. The GPL limits its scope to distribution of modified or derivative code. Distribution is an activity wholly under the purview of the Copyright Act. Thus, the GPL explicitly states as out-of-scope any activity outside of the Copyright Act, and any activity covered by the Copyright Act not including distribution.

There can be no twisted thought without a twisted molecule. -- R. W. Gerard

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