I Create, Distribute & Disseminate Cracked Software (updated 28/7/10)

Update 28/7/2010 – Theme Footer Links

The sales page for Thesis no longer mentions footer links though the license agreement isn’t available in public.

The sales page for Headway still requires attribution, subject to the license agreement – but the Headway Theme license agreement is available for public viewing.

You must also not change or remove the copyright information within any theme style.css file. You may however remove credit text from the footer of the themes if needed pursuant to the terms indicated below.

Full marks to Headway… choice is a wonderful thing.
I would really like to see the Thesis Terms of Service in public but maybe we will have to wait until they have them fully ironed out. Full marks as the intent certainly seems to be there.

Update 23/7/2010

Thesis is now GPL compliant with a split license to match the Headway Theme changes earlier in the week

Friends and lovers: Thesis now sports a split GPL license. Huzzah for harmony! #thesiswp
@pearsonified
pearsonified
Thrilled, however, that #thesiswp is now legal and in compliance, I hope this encourages others to fully embrace the GPL.
@photomatt
Matt Mullenweg

Plus earlier in the week Headway Theme

@ Tell you what, when @ actually says it on twitter, I will make a formal annoucement.
@GrantGriffiths
Grant Griffiths

I hope the guys realise that they can’t place limitations on how a user modifies the PHP, thus any limitation on removing footer links would make the theme no longer GPL compliant.
Also if they were using some kind of copy protection based around PHP to limit the number of installations, customers can request unencrypted source code.

Link Removal Update 2 – 23/7/2010

Will Anderson asked Chris Pearson directly about attribution links.

I notice that the "personal option" for #thesiswp still prohibits footer attribution removal. Just not updated yet? (@)
@itsananderson
Will Anderson

It seems Chris has no intention to change the sales terms

@ The proprietary part of the license preserves that.
@pearsonified
pearsonified

Chip Bennett queried him on it

@ how so? Is it not part of the PHP? (cc @)
@chip_bennett
Chip Bennett

Chris claims it hasn’t been discussed and they might remove that requirement

@ Maybe it doesn't, I dunno—we haven't discussed that internally. I'll probably just remove the requirement.
@pearsonified
pearsonified

I honestly can’t believe it hasn’t been discussed internally – that one link is a “big rock” possibly responsible for 5-30% of revenue. That would depend on what percentage of sales are for a single license, and what percentage upgrade based on either wanting to remove that link, or to change the link to an affiliate link.
It also has a significant long-term branding effect, and has an affect on search/indexation including a knock on to partners of various types – in many ways it could be looked on as a bigger elephant in the room than the effect on any other proprietary code being shared/reused.

The Thesis – WordPress GPL discussions have been going on for 2 years… the situation of that credit link must have been part of that decision process…

Regarding terms of service, it seems DIYThemes have no intention of publishing their terms of service in public, before a purchase is made – I wonder what Paypal think of that. Would the terms of service make it seem (in Paypal’s weird way of determining these things) that the developer license is some kind of pyramid scheme?

@ PHP is GPLv2; CSS, JS, and images are proprietary. You can view the new Terms of Service here: http://bit.ly/a4WozG
@pearsonified
pearsonified
@ The entire ToS is only available to customers, but summary = PHP is GPLv2; CSS, JS, and images are proprietary.
@pearsonified
pearsonified

Original Article

I think it is time to be 100% truthful with my readers

  • I take someone’s copyright work
  • Often I take the copyright work of 100s of people
  • I access the source code of the software and reverse engineer it
  • I then create software modifications and packages that modify the operation of the original software, often in ways not intended or approved by the copyright owners.
  • The code I write patches the original software – it cannot stand on its own
  • Not only do I do this on my own account, but I am a dealer & dissemination point, actively encouraging others to crack and distribute software as well.
  • In the past this has included the removal of protection
  • It has also included adding in my own layers of protection
  • I offer no support for what I create
  • I offer no guarantees – in fact I often warn people never to use anything I create
  • I am part of an organization – not formally, but our activites certainly could be looked on as organized crime

The laws I break have been tested in court.

However as far as I can legally tell:-

  • The individual parts of the software I “crack” are Copyright by their respective authors
  • The overall copyright for the collection of software is owned by… Free Software Foundation
  • Just like James Bond has a license to kill, they provide me with a license to hack, crack & distribute modified versions of their software, in whole or in part

That license is the GPL

Personal Notes

The following are just my personal notes & research about WordPress, GPL, Thesis & all the legal decisions that might have some relevance.
There is some personal opinion mixed in, that is me thinking out loud – I have deliberately not included any final opinions and kept all the following highly disjointed. This is not intended to be a flowing argument for or against one side of the controversy or the other
.

Legal Opionions

The falacy of the moment in the WordPress vs Thesis GPL discussions, is that Open Source Software has never had it’s day in court over a software copyright issue. That there are no teeth to the WordPress claims that themes & plugins in most cases should be licensed as GPL.

So I spent hours digging into legal stuff to satify my own insatiable curiosity

I am possibly the worst person in the world to be trying to explain anything law related, so please treat all of the following as just my personal notes of no consequence other than they take up space on my server, and are posted in public.
Opinions here are absolutely personal, quite possibly subject to change based on the weather or shifts in the moon, or the amount of beer in the fridge.

I would also like to mention in my last post I tried very hard to stick to the moral issue of ignoring the interpretation of a license that was the desire of the license holder.

  • I compared it to comment spam which isn’t illegal
  • I compared it to email spam which in theory isn’t spam if you comply to the letter of the CAN-SPAM act

Deja Vu

The Thesis / WordPress debate has been going on for over a year in earnest, in theory with discussions happening not just on the surface, but also behind closed doors, emails etc.

As an example just after Studiopress went GPL, but before the commercial themes page on WordPress.org was announced, there was this interesting tangle between Matt Mullenweg and Brian Clark (read all the comments – lots of them).

People Hiding Behind Anonymous Google Docs

I just love people posting stuff anonymously which they can edit at any time on Google docs. Maybe I should track down who tweeted it first.

However this document suggests that copyright comes before the GPL
It seems to think there could be a fair use argument

My personal opinion… bull$hit

Statements like “All this code is written by me” then we hear that the comment code ripped directly from WordPress was added by a 3rd party developer with no credit. (see references in second paragraph Mark Jaquith post)
Important Note: Whilst Mark works on WordPress code extensively, he does not work for Automattic
My personal interpretation of copyright & fair use is you really need to credit the source to have even a thin leg to stand on, but my personal opinion on this is probably not that important.

What is probably important is the way for the last 2 years the commercial message from Thesis has been that WordPress (and by that I mean the whole ecosystem that is GPL compliant) is somehow inferior in SEO capabilities.
The whole notion that the platform is Thesis, you just happen to have to use it with WordPress (currently) in my mind really screws up any notion of fair use as tries to undermine the marketing message

Also to justify the fair use argument it would have to be shown that Thesis is a stand alone application, but more on that later.

Jacobsen-v-Katzer

Summary judgement partially upheld that not including the open source software license along with code taken from an open source project was subject to DMCA. It was only partially upheld because at the time the judge couldn’t determine damages as part of the summary judgement as there was no commercial use by the plaintiff to base a summary judgement on.

From: A Big Victory for F/OSS: Jacobsen v. Katzer is Settled

1. The code in question was sufficiently original to be entitled to copyright protection. While not unique to F/OSS code, this was a legal issue on which Jacobsen had to prevail in order to assert claims under copyright law.
2. While the JMRI Project made its code available for free, there was “evidence in the record attributing a monetary value for the actual work performed by the contributors to the JMRI project,” thus laying the basis for monetary damages.
3. The removal of the copyright and authorship data contained in the pirated code was a violation of the Digital Millennium Copyright Act, thus providing a basis for suit for that action in violation of the JMRI license.

A lot of the discussion around the WordPress vs Thesis potentially originate at least in part from this case before it was appealed, overturned on appeal & subsequently settled. At that time is was being looked on that Copyright Law couldn’t be used because the terms of the license were not sufficiently limiting enough.

Erich M. Fabricius, Recent Development, Jacobsen v. Katzer: Failure of the Artistic License and Repercussions for Open Source, 9 N.C. J.L. & Tech. On. 65 (2008), http://cite.ncjolt.org/9NCJOLTOnlineEd65

I suggest you at least read Section B. Implications of Jacobsen on Open Source Licensing which explains why the “Artistic License” was thought to be too open, but also why the GPL which is written in a much more restrictive way is much more likely to be looked on favorably for copyright claims.

The Thesis camp have been pushing for a declaratory judgement for over a year

Here is another analysis of Jacobson vs Katzer worth reading for clarity (it is quite short).

Hacking & Cracking

Why did I start off with hacking & cracking in this post?

First of all it was the closest analogy I could find to the way WordPress links together with plugins & themes, and what changes when someone switches from a default theme such as 2010 or Kubrick, to an alternate theme.

In my possibly incorrect way of thinking, that is just a big ass software patch – there is no runtime, but it is replacing functions all the same. It is effectively patching the source before it is compiled, with the compilation happening in real time.

WordPress GPL couldn’t “infect” something like CaRP (the RSS display & processing system) even if Antone bundled a WP plugin directly with CaRP as all the plugin would do is provide an interface to the proprietary software.

It also provides a convenient lead into other topics such as legal decisions about mod-chips from the UK.
The UK appeals court judge wasn’t interested in the number of lines of code that were changed, but what that enabled.
I haven’t quite worked out in my head how this “transient copying” becomes precisely relevant, but remember these are my public notes for others to do with as they please.
Another part of the decision, and this was at the appeal court stage in the UK is that complex copyright issues should be handled by specialist judges in chamber, without a jury – I suppose that is the equivalent to the declaratory judgement the Thesis creators are looking for. (I am trying to be unbiased in this)

I come largely from a computer games background where mods of various kinds, from just changing a few variables in a script all the way to total conversions are prevalent.
There have been various equivalent licenses to the GPL created specifically for game mods, but ultimately I don’t know of any game mods that have been sold commercially without the express approval or involvement of the original publishers or developers.
Game mods don’t need to ship with the original code, it would be quite easy to package things so that they just install into the original game directory, or look for the required files where an original game is installed.

Whilst game developers and publishers are more than happy for you to create mods, they want exclusive right to exploit their intellectual property commercially. You would never get away with fair use, and in most cases game mods don’t even link together in the same way as WordPress does with themes and plugins.

Fair Use

One of the biggest problems in determining fair use especially in regards to the WordPress codebase is because it is so vast.

Say the 2010 theme which ships with WordPress
Lots of the work was done by Ian Stewart before he was even working for Automattic.
Some of the code almost certainly, even in small amounts might have come from his Thematic theme which has multiple contributors whether just ideas or code.
Thematic in turn came from Sandbox which was the first theme with really rich semantic markup, and some of that markup code probably ended up in core, or inspired it heavily.
Sandbox was also one of the first themes to extensively use custom css, and promote the idea of child themes.
I don’t want to be unjust, I know K2 was (and still is) doing lots of great things as well.

But the ultimate claim to fame for custom.css probably goes to Semiologic.

For over two years, the Semiologic theme was the only WordPress theme on the internet that allowed one to upgrade his site without worrying about losing his changes to his theme’s styles, through the use of a custom.css. Did we mention this theme was a precursor for a number of things?

There is no “black box” development going on – all these developers have been exposed to each other’s code – code of various plugins etc, especially for things like SEO, semantic markup, tagging, options pages, custom widgets etc.

To argue fair use, you can’t compare directly against the core code – you have to compare against at the very least the whole WordPress GPL code base including themes & plugins.

As an example a plugin author at some time came up with the idea of using the post title for the meta title tag.
Another might have added a way to define a title using custom fields, and yet another came up with the first interface to change this in the post interface.

Once a prima facie case of copyright infringement is presented, my understanding is the burden of proof would fall on the defendant.

Supplanting Demand

The alleged derivative must “physically incorporate a portion of a copyrighted work… [or] supplant demand for a component of that work.”

That is a pullquote from Mike’s post on Perpetual beta, which was a quote from Gallob.

In my wacky line of thinking, whist a proprietary theme might not supplant demand for WordPress core, it would supplant demand for other components of the WordPress project, such as the 2010 theme, or great WordPress SEO plugins like Headspace 2.

John Godley has been working on WordPress for years… I am sure some of his code is in core… after all he now works for Automattic, but I am sure there were contributions to core before that.

It would be almost impossible to unravel whether there is Headspace inspired code within core, or other plugins which then inspired core features in some way.

Thesis definately supplants demand for Headspace 2, and even directly suggests in the sales message that SEO plugins aren’t needed with Thesis (which is why many SEOs still use Yoast’s Meta Robots Plugin with Thesis)

Thesis certainly supplants demand for other themes that comply with the GPL wishes of the WordPress project as a whole.
Themes copy large chunks of code from each other, including original themes such as Kubrick and 2010 – 2010 no doubt has some code from Thematic/Sandbox which probably have some code seen in various plugins, including SEO plugins.

Comparative Advertising

I also came across this..

Comparative advertising causes a stink in the Court of Appeal – much to the Judges’ regret
WordPress is certainly a brand with a registered trademark… the sales video on the Thesis website certainly disparages most WordPress themes, suggesting code bloat, invalid code, speed issues etc.
I would argue that any theme or plugin published under GPL is part of the WordPress Project, no matter whether you have to pay for access to that part or not.
Years ago it would have been so easy to add SEO functions into the WordPress core but a decision was made that they should be kept external to promote choice.

Any claims in a sales page directed purely at WordPress core is in my personal opinion significantly misleading.

There is also an invalid claim that valid clean code would infer some kind of huge ranking benefit.

Valid Code For SEO = Sales Bullshit

In general most WordPress themes are pretty solid on validation, because the designers actually care about validation.

Most of the time it is either users using 3rd party plugins or being themselves sloppy with markup that might cause validation errors & warnings.
A good example of plugins that really suck for valid markup is the Tweetmeme WordPress plugin – the Topsy one is much cleaner.

Using the Thesis theme does not guarantee good markup.

Copyblogger doesn't validate

Some of those errors are things like Tweetmeme or errors caused by humans…

However there is this:-

Thesis markup error

Now I know this markup used on Copyblogger pretty well, as I highlighted it in a blog post almost 3 years ago (before Thesis). It is the method used on Copyblogger for the multi-line titles which is quite distinctive.
You will see that the markup previously used contained HTML entities for the line breaks. The current code does not.

This is what I have copied from my old post – it is quite possible the entities have been messed up a bit due to different code plugins, but it seems relatively ok, though the BR should really be stripped out.

 <a href="http://www.copyblogger.com/writing-for-stumbleupon/" rel="bookmark" title="Permanent Link to Writing for StumbleUpon:&lt;br /&gt; High Impact Content “Above the Scroll” in Four Easy Steps">Writing for StumbleUpon:<br> High Impact Content “Above the Scroll” in Four Easy Steps</a> 

This is what is used on a similar post currently on the Copyblogger home page

<div class="post-9508 post hentry category-1 category-creativity category-editing post_box top" id="post-9508"> <div class="headline_area"> <h2 class="entry-title"><a href="http://www.copyblogger.com/writing-perspective/" rel="bookmark" title="Permanent link to The Foolproof Cure for Weak Content: <br />4 Ways to Get Some Perspective">The Foolproof Cure for Weak Content: <br />4 Ways to Get Some Perspective</a></h2> <p class="headline_meta">by <span class="author vcard fn">Ali Hale</span></p> </div> 

This is what the code looks like from a search page (I know Brian uses Lijit but that doesn’t stop someone adding a parameter to pull up a search result)

<div class="post-426 post hentry category-social-media post_box top" id="post-426">  <div class="headline_area">  <h2 class="entry-title"><a href="http://www.copyblogger.com/writing-for-stumbleupon/" rel="bookmark" title="Permanent link to Writing for StumbleUpon:<br /> High Impact Content &#8220;Above the Scroll&#8221; in Four Easy Steps">Writing for StumbleUpon:<br /> High Impact Content &#8220;Above the Scroll&#8221; in Four Easy Steps</a></h2>  <p class="headline_meta">by <span class="author vcard fn">Muhammad Saleem</span></p>  </div> 

This is what the same code looks like from a related link

<li><a href="http://www.copyblogger.com/writing-for-stumbleupon/" rel="bookmark" title="Permanent Link: Writing for StumbleUpon:<br /> High Impact Content &#8220;Above the Scroll&#8221; in Four Easy Steps">Writing for StumbleUpon:<br /> High Impact Content &#8220;Above the Scroll&#8221; in Four Easy Steps</a></li> 

Just to show I am not making this crap up I just added a break to one of my old blog posts on my home page to see how it is being handled by my theme, Thematic which is one of those free theme frameworks that have been downloaded 200K+ times (but I use SVN) – one of the ones being disparaged in the Thesis sales video.

<a href="http://andybeard.eu/2637/internet-marketing.html" title="Permalink to I Use Aggressive Hype &amp; Obnoxious Tactics To Fool People" rel="bookmark">I Use Aggressive Hype <br />&#038; Obnoxious Tactics To Fool People</a>

Strangely the BR doesn’t make it into the anchor title attribute on a well coded theme.

  • It would have looked ugly
  • It wouldn’t have validated
  • If HTML was making it into the attribute I would question code security

It seems the poor output also appears when used in the sidebar… I really hope the input data is being sanitized.

Is Valid Code Important For Ranking?

Matt Cutts said it isn’t

Edward Lewis followed up reasons it might be with lots of detail.

Alan Bleiweiss followed up with more details on why he doesn’t do validation checks as a SEO.

The sad part of this is that Matt Cutts for some reason has allowed his photo to be published on the Thesis sales page, immediately under the video making all the claims about how the clean valid code enhances SEO.
It does however seem Matt is considering switching back to “vanilla” WordPress, though he doesn’t mention whether he will use the 2010 Theme or maybe a free framework.

I sometimes get a little confused listening to Matt when talking about WordPress, as he might not be fully aware which panels within his “write” interface were added by his theme, Thesis, including options for custom meta descriptions and custom titles.
Those are features that can be added by one of 50+ WordPress plugins, which is why he no longer feels he needs the All In One SEO plugin or similar (go for Headspace 2 if you want something created by WordPress core developers).

I also wonder (just curious) whether Matt paid for a developer version of Thesis so that he could remove the credit link.

My primary issues with Thesis SEO features such as adding meta nofollow on archive pages were apparently fixed with Thesis 1.7.

Thesis Refunds

Thesis officially has a 30 day refund policy – that is probably sufficient for normal situations.

However you can’t expect users to understand the nuances of copyright violations, SEO claims that might not be as valid as they appear at first especially in regards to valid code etc.

Then of course before you actually pay any money there is no indication that Thesis has some kind of proprietary license different to the WordPress project as a whole.

So when I see people attempt to get a refund based upon the current licensing issues, it makes me sad that such requests are being refused, no matter how long after initial purchase.

As stated on our website, refunds are available within 30 days of purchase. Therefore you are not eligible for a refund. I want to assure you that DIYthemes in no way deceived its buyers. When you purchased Thesis you purchased software. The GPL is a license not a law. Customers are not liable as you can see in this tweet by Mark Jaquith of WordPress: http://twitter.com/markjaquith/status/18808836688

Customer Support
DIYthemes

If I was a customer of DIYThemes, and for whatever reason maybe due to all the recent GPL debate you couldn’t live with yourself to continue using the theme, and wanted a refund, this is how I would play it based on UK law. How it applies where you live is up to you.

Possibly the goods are not fit for purpose based upon whatever you might wish to state. That could be based upon what you read above that you think applies, but lots of the above could very well be based upon flawed logic – even the validation errors on the Copyblogger site could be due to beta code or some specific customization.

This does not necessarily entitle you to a refund outside the refund period that is stated, but that does not exclude a manufacturer from having to come up with a remedy within a suitable period.

I have no idea how they can come up with a remedy for complying with the GPL – code can always be fixed, though it might be hard to prove a benefit in SEO performance claimed on the sales message which by its very nature takes a lot longer to evaluate than the refund period allowed.

The Which magazine has a good guide for understanding the Sale of Goods Act in the UK.

You have the right to get a faulty item replaced or repaired, if you’re happy with this (or if it’s too late to reject it). You can ask the retailer to do either, but they can normally choose to do whatever would be cheapest.
Under the Sale of Goods Act, the retailer must either repair or replace the goods ‘within a reasonable time but without causing significant inconvenience’. If the seller doesn’t do this, you are entitled to claim either:

  • reduction on the purchase price, or
  • your money back, minus an amount for the usage you’ve had of the goods (called ‘recision’).

If the retailer refuses to repair the goods, you may have the right to arrange for someone else to repair it, and then claim compensation from the retailer for the cost of doing this.
You have six years to make a claim for faulty goods in England, Wales and Northern Ireland; in Scotland you have five years.

Now apparently if you read the article, within the first 6 months of purchase it is up to the person selling the goods to prove that your claim is wrong.

So if you happen to be in the UK, and you have purchased within the last 6 months, and wanted a refund of your Thesis purchase you could just quote the sale of goods act and ask for proof that your reason… copyright/license compliance/uncertainty for instance is unfounded – as this matter hasn’t been to court, there is no proof that could be provided that I am aware of.

In the US I have no idea whether the UCC (Universal Commercial Code) could potentially be applied to software, or whether you might be able to argue that there is an Implied Warranty of Merchantability that based on this article on the FTC site might last 4 years.

Generally, there is no specified duration for implied warranties under state laws. However, the state statutes of limitations for breach of either an express or an implied warranty are generally four years from date of purchase. This means that buyers have four years in which to discover and seek a remedy for problems that were present in the product at the time it was sold. It does not mean that the product must last for four years. It means only that the product must be of normal durability, considering its nature and price.

I certainly wouldn’t advocate contacting your local trading standards office, the BBB, FTC, Paypal, Ripoff Report, Consumer Report etc unless you felt you had significant cause and weren’t gaining satisfaction by other means.
Let me emphasise I am saying DO NOT DO THIS – The Thesis people are nice people, you are a nice person, I try to be a nice person – it is only a few bucks and Matt Mullenweg keeps tweeting thaat he will buy you a free replacement.

Personally I think that is over generous of Matt and he shouldn’t bare the financial brunt if customers are dissatisfied for whatever reason.

My personal opinion on warranties is that as a marketer it just isn’t worth fighting refund requests where there is even a slightly valid reason. You might choose to block perpetual refunders but ultimately they are a buyer, and if they don’t buy from you now, they could still buy in the future.

In the past I have fought extremely hard to ensure people were universally given refunds after I was personally refused a refund on a particular product I paid for. In that particular case it wasn’t the primary product owner but his new business partner on that venture and their support staff trying to “save the sale”.

Guess what? That is how Zappos & Amazon grow their business… ensuring customers are happy even when something they buy doesn’t work out.

Conversely not givng refunds can have a negative effect on good will – for me any and all good will evaporates when I hear of problems with refund decisions.

As an example a large portion of this post I already had stored in my bookmarks for my own reference – I would never have posted them.

But there is a tipping point… and for me that is refund policy.

Disclosure

Just to reiterate… these are my personal notes, subject to change and not in any way shape or form to be looked on as some kind of legal advice.
This blog post is like my personal wiki on GPL stuff, if you quote me on something written here, just like Wikipedia it might not be there the next day.

I personally made the decision 3 years ago, having paid someone 4 figures to develop a WordPress plugin without using any 3rd party code in a “black box” environment, to publish it as GPL… because it was the right thing to do. There was absolutely no pressure to do it. I actually gave the plugin away for free as well, but that was a commercial decision.
I also didn’t abuse credit links in any way.

Most of the current crop of commercial theme developers were still giving away themes so they could sell links – some people are now selling themes with licenses preventing you to remove design credits… possibly to sell links or it may be just to add more leverage for an upsell to a developer version.

If you don’t pay for the upsell to a dev version, financial logic is that you have a discounted version of the theme because of the link, thus you are paying someone to also have a paid link on your blog to them.

Google hasn’t yet interpretted things that such a link is paid, at least as far as PageRank penalties go, but they could. From my personal perspective which is worth nothing it seems to be abused.

Responses

I refuse to respond to tweets as Twitter still haven’t removed robots.txt preventing me finding my own historical tweets

Thus I am going to respond here on the blog

@ Andy Beard is suggesting harassment & fraud. Is this what WordPress has degenerated to? Are you/WordPress endorsing that? #thesiswp
@CaseySoftware
D. Keith Casey, Jr.

Harassment & fraud? I don’t think so

I compiled a lot of research which hadn’t been mentioned anywhere else to my knowledge in connection with this situation, and as I am in Europe there is a little more European perspective. Lots of factors regarding copyright are international.
I would have also drawn on some German decisions as well but they were a little too hardware focused, and I wanted to get away from Linux driver/hardware related stuff as it just adds fud.

What the product claims to do, the way that is worded in relationship to the product it is meant to be enhancing/replacing and actually achieves has a lot to do with fair use, especially considering my own opinion that the WordPress Project is more than just the core.
I am someone who spent a lot of time up until Thesis 1.7 was released, when asked to do a site review, informing people that they should switch off certain Thesis features because they had the potential of having a negative effect on indexation.
I very clearly stated above that that was fixed in 1.7 (as far as I am aware, though the default options might not be optimal)

If the comment was in regard to the information on refunds… I don’t think I encouraged casual refunds just for the sake of it. I provided factual information to the best of my ability which I think is far better than the Thesis support referencing a Tweet.
They are the ones without a terms of service of sale before you purchase, and no visible license agreement.

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Comments

    • says

      I have always had a lot of respect for K2 – it did lots of the things I wanted in a theme but sometimes a little too much for my own personal taste.

  1. says

    Let me preface this by saying I have read a number of well written and very intelligent posts on this issue since it hit the fan the other day. With that said; hands down, this is the best post on the subject. Nothing more to say than that.

    • says

      I really appreciate the comment as writing this was a real balancing act to ensure what I covered had some meaning.

      Chip has done a killer job here as well in digging stuff up that might be relevant, though he is still comparing with WordPress core… but for me that isn’t how the WordPress community really works.
      http://www.chipbennett.net/2010/07/wordpress-themes-gpl-and-copyright-case-law/

      I probably drop into WordPress trak once a month by mistake or from a search, maybe a few times before a major release or when I am trying to solve something, but I almost always come across stuff that is submitted as a patch, and it is kindly suggested that the functionality should be part of a plugin.

      I have seen tons of discussions and interviews on the positive & negative side of publishing GPL licensed WP Themes, but the #1 benefit must be not so much people contributing, but not having to black box development.

      He has a few Game mod references which I also saw but decided weren’t necessarily relevant because the judge made the decision based upon the storyline, not the code. That doesn’t necessarily mean the the code made a difference, in the same way with the Mod Chip the verdict was based upon images but could have been based around the amount of code.

      • says

        Thanks for the mention, Andy.

        You’re completely right: I looked merely at the question of whether or not copyright case law would support a claim that Themes are derivative of WordPress core – primarily because that is currently the statement be pushed the hardest for the past couple years.

        The question of whether one theme is derivative of another theme is another question entirely – and, IMO, a very interesting one. I can say, though, based on my previous research: the answer to that question will probably depend entirely upon which two themes are compared. I don’t think any conclusion could be considered in any way universal – though, the method of determination (as established by Computer Associates and Altai) certainly could be.

        As for the question of whether the court would look at the code versus the output of the code (story, audiovisual content, etc.): that determination would depend upon the answer to the question of what is the purpose of the software? While courts initially took a very high-level abstraction (e.g. “dental office management” in Wheelan), subsequent courts have taken much deeper levels of abstraction in determining that purpose.

        WordPress would be run through the same process. Where Wheelan would have said “the purpose of WordPress is content management”, Altai would break that “content management” into, say (to reuse examples I’ve given in other comments), Widgets, Comments, etc.

        (The same process would apply when comparing two Themes, coincidentally.)

        I’m considering all of this as potential future-post material. I think it might be instructive to try to put WordPress (or, a Theme) through Altai’s Abstraction-Filtration-Comparison process, and make a guess as to what might fall out as non-copyrightable methods of operation/scenes a faire, and what would remain as copyrightable, creative expression.

    • says

      That means it doesn’t really make much sense to leave a comment.

      Some of this stuff blows my brain too, but then what I tend to do is read it all a few times if it is something I really want to understand, sleep on it if need be, think about it, research some more etc.

  2. says

    You neither hack or crack WordPress.
    Cracking is the removal of copy protection, trials, alter date checks etc.
    Hacking is altering something to gain access to stuff not available to the user. With WP everything is accessible to the user. So hard to hack an open book.

    Everything before “Supplanting demand” really doesn’t have much to do with Thesis.
    Is there a reason why you just didn’t make two posts of?

    Personally I think all this focus on Thesis in the WP community looks like a witch hunt. There are many more non-GPL plugins/themes out in the wild. It seems the reason there is so much focus on Thesis because people just don’t like Chris.

    • says

      You really think I am not aware of official definitions and also common use?

      Why do you think in the initial part of this post I linked through to the removal of protection? Link condoms / Nofollow

      Many of the programmers I used to work with here in Poland started off in “The Scene” though primarily the demo part of it. SoftIce was like their right arm.

      They wanted to use OpenGL in an DirectX world (at the time) so the obvious thing for them to do wasn’t to write their 3D code twice, but to create an abstraction layer / shim that allowed OpenGL games to run on DirectX – we also did some other stuff which whilst no longer subject to NDA I wouldn’t feel comfortable talking about.

      There are certainly differences between applying a crack to counter copy protection, and applying one that allows infinite smart bombs, skip levels or making the primary character quote Captain Pugwash.

      I also seem to recall having conversations similar to this with software publishers

      Us: “Hey, we want to publish your software on the Polish market as a fully localized version”
      Them: “It is not worth our while digging out the source code of that old game and preparing it for localization, espcially with the different character set & custom fonts”
      Us: “We already have a finished beta version – remapping fonts and creating custom fonts took a little more work – all we need is to negotiate terms – it is free money”

      There are huge similarities – hacking & even cracking software for personal use is really hard to prosecute, most cases revolve around distribution, and that doesn’t require that the full product be included with the crack which circumvents the software “feature”

      If you are a competent programmer everything is accessible

      If you then look at Jacobsen, you will see that there was a decision in court that the GPL license was copy protection – it was added by a script – the way WordPress and components such as plugins are prepared for release by SVN could be looked on as a script, thus taking any code from that distribution could be looked on as breaking the copy protection.

      You might think that is odd, I might think it is odd, but a competent judge who determines these things has made that decision

      It seems you have a personal interest in the way this plays out
      Creating a theme
      Creating a back end interface “Im writing a wrapper for WP backend. Would be interesting to hear about your frontend approach.” (from one of your tweets)

      You might find it important to disclose things like this when you leave comments, as it adds a certain level of bias to your perspective.

      As for “outing” other plugins & themes, I haven’t seen anything and the mention was fleeting.. I didn’t press for clarification, but I believe the net is quite a bit wider with smaller holes now.
      I almost left a comment somewhere a few days ago listing 50+ themes and 100+ plugins that I know about, many of which I might have bought but refuse to promote as an affiliate because of the unclear licensing information, enforced links back to the author etc.

      Thesis is unusual in a number of respects – a very outspoken developer, a business partner who is a lawyer specializing in things like IP/Licensing, I read somewhere a graduate of University of Houston, specific wording in the sales message.
      In some ways it could be looked on as “The Perfect Storm” (in a teacup)

      SHould I have made this 3 or 4 posts, possibly, but I just dumped what I was prepared to publish now into one, thus why I stated it is my notes posted in public rather than a highly poished article with specific flow.

      • says

        You really think I am not aware of official definitions and also common use?
        […]

        Then why use the terminology if you know they don’t apply?

        If you are a competent programmer everything is accessible

        So? Has nothing to do with WP. In WP it is a design choice that everything is accessible. You neither hack, crack etc to create a theme. Even a complete noob can make a basic theme. Thankfully they seem to be moving away from the use of globals.

        You might find it important to disclose things like this when you leave comments, as it adds a certain level of bias to your perspective.

        Why should I it has nothing to do with the case at hand. Also writing an interface and implementing that to hook into WP is not considered to be violation of GPL. Dynamic linking and all that you know. (WP leads, FSF are biased so their view holds zero value.)
        And the framework is licensed under MIT license. Which means ppl can do whatever they want with it basically, contrary to GPL.
        So in ya face ;).

        • says

          Most of the competent programmers I know would regard themselves as hackers, and the title certainly applied to how I used it in the opening few paragraphs of my post.

          But the references in this post go far deeper than that

          For instance in you looked up hacker on Wikipedia you would find that the free software movement started at MIT including their Tech Model Railway Club.

          In some ways it is interesting to note that Jacobsen was all about the JMRI project (JAVA Model Railroad Interface)

          Then the astute among my readers would recognise that the legal precedent set in Jacobsen was that Katzer when they copied the GPL data, didn’t include the GPL license. A competent judge has determined that that was a breach of the DMCA because they removed copy protection.

          Whether I agree with that verdict or not, as far as I can understand (I am not a lawyer) that is a legal precedent, possibly set in the same jurisdiction as someone related to the WP project such as the Free Software Foundation might use.

          Removal of copyright in such a way has been legally found to be “cracking”.

          FSF might be biased, but as far as I can understand the copyright of WordPress it would be them being the official plaintifs possibly on behalf of the WordPress Foundation – the official license agreement on the wp.org site states copyright FSF not Matt Mullenweg.

          You can relese your themes that use the Framework under MIT if you want, but I have a feeling (& again I am not a lawyer) the framework itself would need to be GPL, or at least the sections that interface directly with WordPress.
          I have no idea whether you read my previous post but as far as I am concerned that is still pissing in the WordPress well – 7 years of WordPress developers contributions under a license they can’t themselves change, and you on an ego trip to prove a point want to release under a different license.
          They may not take you to court over it, but that doesn’t make it right.

          Oh, and in this neck of the internet, disclosure is important, and when it affects a discussion materially I have had one lawyer leave comments suggesting it is even a legal requirement.

          • says

            Then the astute among my readers would recognise that the legal precedent set in Jacobsen was that Katzer when they copied the GPL data, didn’t include the GPL license. A competent judge has determined that that was a breach of the DMCA because they removed copy protection.

            Different subjects. Datafunction names. Even your astute readers would know that.

            Whether I agree with that verdict or not, as far as I can understand (I am not a lawyer) that is a legal precedent, possibly set in the same jurisdiction as someone related to the WP project such as the Free Software Foundation might use.

            Again different subject. Data versus function names. If I write a book I can’t use names for my characters that has already been used by other authors?

            You can relese your themes that use the Framework under MIT if you want, but I have a feeling (& again I am not a lawyer) the framework itself would need to be GPL, or at least the sections that interface directly with WordPress.

            It depends. If I use actual code it would have to be GPL. Otherwise no. You know dynamic linking and all that. If not read about it. Reread Chip Bennetts article. He aint making stuff up and actual lawyers, OSI representatives, law departments on universities all think the same way.

            I have no idea whether you read my previous post but as far as I am concerned that is still pissing in the WordPress well – 7 years of WordPress developers contributions under a license they can’t themselves change, and you on an ego trip to prove a point want to release under a different license.

            I have contributed a little to WP core one change got in others did not for the 3.0 version. And will probably do more in the future.

            And its not an ego trip. What a stupid accusation.
            php.MVC uses LGPL, Ruby on Rails,CakePHP uses MIT, CodeIgniter uses Apache/BSD license. Its standard to use that sort of license for frameworks.
            So again you jump to unfounded conclusions.

          • says

            I know the dynamic linking arguments, and I read Chip’s post, all 4 pages including all the small print, and I had already read most of the articles he linked to, which all predated the Jacobsen appeal.

            I can see situations where the dynamic linking argument becomes tricky.
            1. If someone creates 1 or more CMS applications which have identical plugin hook & filters to WordPress, but under a different license – that might sound like a lot of work, but maybe someone in the Habari project might decide they want people to use WordPress plugins in some way. You wouldn’t need all hooks/filters to make a few waves as a large number of plugins use common output hooks for header/footer, or work with data such as the post content.
            2. Very simple plugins – as an example filtering the_content() or hooking wp_footer() to add a Rick Astley video from Youtube

            In the first case I have no idea what might be the final result – I suppose it would come down to effect on the market & intent – it isn’t theoretical either, there is a project out there.

            In the second case it doesn’t have any effect on the market place – the amount of code/data doesn’t really matter e.g. HD DVD DRM Key & Digg fun 3 years ago.

            If you can somehow come up with a templating engine which only works using what WordPress regard as external APIs, good luck to you.

            In some ways it isn’t that hard – even at my level of programming incompetence I could create something that outputs content with embedded tokens that could then be used to add theme elements as a 3rd party application.

            Matt Mullenweg himself pointed out this is possible 6 days ago on Neville’s post
            http://www.nevillehobson.com/2010/07/16/what-is-community-worth-to-you/#comment-62596376

          • says

            The Jacobsen case has no value in standard plugin/theme development.
            All you do in those cases is use function names.

            If you can somehow come up with a templating engine which only works using what WordPress regard as external APIs, good luck to you.

            Ain’t doing a template engine that replaces WPs. And what WP regards external API differs. Codex says the hook systems is an API. Mark says its not etc. WP itself is more like a platform. Like Android or something.
            Also if I were to use the interface approach I could call all WP functions to my hearts desire. Hence the case for dynamic linking.

          • says

            I think I can see where the confusion is coming from

            The linked documents stated very clearly that copyright stuff had to be determined first, though the DMCA would be part of that.

            Jacobsen is an alternative to arguments that then the case would come down to purely contract law, or possibly a counter for fair use.

            Mark looks on it as dynamic linking
            I look on it as a big ass software patch
            You look on any use of those APIs as fair game despite the frequently stated intention by the authors that they consider those interfaces to be internal.

            I am not disputing that the courts may determine that you are right regarding dynamic linking in certain circumstances – my Rick Astley example would be an extreme case that I doubt would ever get that far. If someone replaced the whole front end of WordPress or Drupal it would be at the other extreme.
            Themes & plugins are somewhere in the middle.

          • says

            You look on any use of those APIs as fair game despite the frequently stated intention by the authors that they consider those interfaces to be internal.

            They are not internal. There is no such thing really with WP. Thats how its designed. If they were internal external software wouldn’t have easy access to them and their use would be discouraged.

          • says

            There is a 30+ page thread over on the Warrior forum about people discussing/complaining about new rules for product promotion in WSO, strategy discussions etc.

            It is primarily to do with link building

            They have decided that they will no longer support/condone people using strategies that are explicitly against the terms of service of Web 2.0 properties, or even non-explicitly in the case of forum owners.

            It is quite far reaching – they are no longer accepting WSOs or promotion of “link packages” – places to get links just by creating profiles of forums or dofollow comments – the powers that be have decided that it is against the wishes of the sites to be hit by a plague of visitors and maybe forum signups just for the purpose of gaining a backlink.

            They decided that it was pissing in the well.

            You wrote yourself that 50% of fixes for WP3.0 were by just 5 people (iirc) over on WPTavern – what do you think the chances are that those people support Matt’s view, and that has been the view for a long time.

            It is quite possible that the guys who skipped over to the Habari project were those who might object to some of Matt’s interpretations

            http://wiki.habariproject.org/en/FAQ

            Habari uses the Apache License (http://www.apache.org/licenses/LICENSE-2.0). For those unfamiliar with this license, the Apache License FAQ page should answer most of your questions.
            Developers contributing to the Habari project itself should note that, unless explicitly stated otherwise, any contribution intentionally submitted for inclusion shall be under the terms and conditions of the license used by Habari, without any additional terms or conditions. However, plugins and themes designed to work with Habari are not required to have the same license as Habari itself.
            You can find our license included in the source, and http://svn.habariproject.org/habari/trunk/LICENSE in our code repository.

            All the legal opinions are just that, but I have seen experts suggest that consistant messaging about what is considered internal, and what is considered external will be important. Certainly for the last 3-4 years Matt and other project members seem to have been fairly consistant when they have written about this topic.Whether that was the case with B2, and the early days of the WP project are hard to tell, but the people involved were probably less aware of the legal intricacies, less sure of what they believed in etc.
            Also they can be a little lax in communication. The registered trademark isn’t proclaimed on every page, and the domains policy is buried fairly deep and still abused by people who should know better.

          • says

            Habari is an interesting project. But not very well advertised and their UI is not that good. And it was top 4 apparently. Remembered wrong. http://www.wptavern.com/forum/general/1790-whats-new-drupal-7-a.html#post17608

            Certainly for the last 3-4 years Matt and other project members seem to have been fairly consistant when they have written about this topic.

            Really I’ve only seen it mentioned by Mark Jaquith. Still using the term external and internal with WP is not correct. There also is really no such thing as external and internal APIs.

            It facilitates interaction between different software programs similar to the way the user interface facilitates interaction between humans and computers.

            So its again arguments of the type. “Thats not what we mean” =).
            And on the GPL and people not interpreting the “internal API”same way as Mark J.

            I think that punishing WordPress for having a flexible plugin system is unfair.

    • says

      Hello Andreas,

      Two minor points to consider: the “So sue me!” attitude probably didn’t help, especially when it was determined that wholesale copy and paste of other peoples code occurred. Granted, that discovery happened after the famous tweets but so what? It just makes the copyright violation more obvious.

      The second point is does a person have to be liked to be called out on something? Others may be doing the same thing as Chris, but that doesn’t get him a pass. That sort of excuse doesn’t work for speeding tickets either.

      • says

        The second point is does a person have to be liked to be called out on something?

        No, but when people just don’t like him its a whole other thing. Matt was the one that started the bad mouthing this time around but ppl just ignore that since the fans don’t like Chris either. Then all hell broke loose in the twittersphere.
        And for “violators”:
        We got [redacted by moderator] etc. That can also be targeted. But people don’t know whose behind those so the devs don’t get any heat.

        • says

          You seem to have an alternate agenda

          If you want to “out” potential competitors please do it on your own blog though many of the projects are hardly invisible. I am sure many of them are considering their choices right now.

          • says

            If you want to “out” potential competitors please do it on your own blog though many of the projects are hardly invisible. I am sure many of them are considering their choices right now.

            Out potential competitors? Again with the unfounded conclusions. It was to make a point. I don’t consider them violators of any license. I have not read any ranting on their choice of license thats all. Which is why I think has more to do with the person Chris.

  3. says

    And he uses the work of others to generate this web site!! Shock, horror!! If only I knew and understood that I’ve been using this software for years without understanding!!

    Too bad HTML lacks a sarcasm tag. Nice right up and I especially like the “Fair Use” part.

  4. says

    Andy,

    Well, I have not taken too much notice of all this because I don’t understand the majority of it anyway, but that was a great help for me. :)

    Thanks, interesting post and I don’t have any bitching like Andreas above to say. :)

  5. says

    Andy me and the guy above Rob were just talking about you when he submitted one of your posts to a new blogger community we have. Anyway I was missing you since the tragedy and it’s so refreshing to get back to learning from you. I told Tony at BC YES we settled our beefs recently that your one of the very few bloggers I admire, Great to hear your Voice again.
    I watched the interview that day and will just say I don’t like Chris or Brian and all their shady tribe theme crap. Karma comes full swing eventually.
    We will be hipping people @ bloggerluv to your PURE Blogging
    You the da man
    Thanks

    • says

      Hi John

      Thanks for the kind words…

      The way I see it this is my blog, it has my name on it, not just in the header but the domain.

      That means it is personal… 100% no guest posts no matter how many times people ask, and at the same time I don’t go running around the blogosphere writing guest posts though I might submit the occasional article, and I license my content so it can be used anywhere people want to use it – I need to make that clear again as historically I had a GPL license in the footer of every post.

      People can call me a fing idiot in the comments as long as they have a point, and I write what I feel…

      There are quite a few posts I have written this year that I then didn’t publish – an attempt to stay away from negative content with a very short shelf life and to move in other directions – like most people I have more important things to do such as put food on the table.
      I even vowed I wouldn’t post anything until I had the guts to post one of them… I have broken my vow… but in some ways I kept it.

  6. says

    An absorbing post, Andy, thanks. I use Thesis, bought a developer license two years ago. As a non-technical WordPress user, I like it a lot.

    I was dismayed by this kerfuffle. I guess my tipping point in deciding to abandon Thesis and seek an alternative theme that is part of “the WordPress spirit” was that Mixergy interview between Chris Pearsaon and Matt Mullenweg on July 14. Neither really came out well but Pearson’s holier-than-thou attitude just pissed me off.

    The news today that Thesis will now become GPL’d (sort of) is great. But I’m ploughing a different furrow now, about to re-do my blog based on the Canvas theme from Woo Themes. A premium theme like Thesis but GPL licensed and no attitude.

    • says

      Hi Neville

      To be honest it was probably one of my most disjointed posts – my hope is that the decision to go GPL was made well before I posted and that it was unnecessary, though some parts of it I had been holding back for a long long time. I am not vain enough to think it had time to influence any decisions.

      I have always understood the attraction of premium themes, I have a few premium theme memberships myself, and I have purchased tons of premium plugins.

      My primary concern is not so much the freedom to distribute if something gets abandoned (though if that didn’t happen with B2, there would be no WordPress) but having access to source and ability to modify without restriction for my own use.
      I also am not a huge fan of credit links I don’t have a choice over, even more so if it is something I have paid for – they can be a little restrictive with certain linking structures I like to play around with.

      As an affiliate I also have real problems promoting something that doesn’t at least meet my own requirements in licensing… I am not a GPL fanboy though it is something I chose to use because it was the right thing to do.

  7. says

    Andy, no doubt you’ve done a heck of a job putting all this research together. But for most people who don’t care so much for the drama of all this and just want a “free of legal issues” premium theme, what does this mean for them and what are the best alternatives? Neville mentions Canvas theme from Woo Themes, any others?

    • says

      Totally free of all legal issues – WordPress themselves have a list
      http://wordpress.org/extend/themes/commercial/

      Those themes are 100% “free” as in you have access to source code, gfx & css licensed GPL. Thus yo wouldn’t be limited on the number of sites you can use a particular theme on, or how you could modify it.

      They all have various support options, many have a one-time fee for unlimited access, others have some kind of subscription for updates.

      If you were flipping a site… there would be no “tax” on the new owner as there might be with one of the themes with a split license, though for theme updates they might have to join whichever site you got the theme you used from.

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