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A summary of the Thesis for WordPress legal saga and outcome

July 15, 2010 · 33 comments

UPDATE 4. The former thesis business partner Brian Clark has joined forces with a different WordPress theme framework, StudioPress.

UPDATE 3. Well, everything has changed. Here’s a quote from the founder of WordPress. Thesis has done the bare minimum not to be sued for its license violation and the code it copy/pasted from WordPress.” And the minority business partner of Thesis Themes, Brian Clark, has left the business.As has one of its largest-profile users, Chris Brogan.

For more details, see: WordPress Theme Thesis Maker Backs Down, Adopts GPL.

UPDATE 2: Practicing copyright lawyer Michael Alex Wasylik has commented about this here. Chris may not have represented accurately whether code was copied from WordPress into Thesis.

UPDATE 1 : Drew Blas (and others) have pointed out that Thesis 1.7 (and older) incorporated GPL’ed code. Chris (Thesis founder) has implied all potentially GPL’ed code is being removed for version 1.8. But that appears to mean versions before 1.8 are subject to GPL, unless fair use applies.

There has been a lot of argument between Chris Pearson, creator of the Thesis Theme/Framework for WordPress, and Matt Mullenweg, founder of WordPress, as to whether it’s legal for a WordPress theme not to be licensed under the GPL. Thesis is not licensed that way, and costs money. UPDATE: According to Aaron Brazell, this argument came about after a hacker compromised some of the Thesis source code.

Here are several key references for this disagreement:

As stated in the Mixergy interview:

If Chris creates a theme that’s built to work on top of WordPress, does he have to use the same GPL (general public license) that WordPress has? Just as important for me as a businessman, if he does, does it mean that Thesis, which many people today pay for, does it mean that it has to be given away as freely as WordPress?

Chris makes one clear statement via Twitter in response to the question: “Does the licensing issue affect Thesis users in any way?”

No. Everything is the same as it’s always been.

What free software advocates want to be legal may not be

I’m not sure I’m happy that GPL advocates seem to be on the wrong side of this legally, but after a LOT of reading and re-reading, Thesis seems almost certainly to be on very solid legal ground.

Here is my summary:

Legally, Thesis is not a derivative work

Practicing copyright lawyer Michael Alex Wasylik writes:

The test for whether something is derivative is whether, at the time it is “fixed in a tangible medium,” (i.e., the code file is saved to disk) whether it contains, at that time, any code from a protected work…. Advocates of an expansive GPL cling to the run-time analysis although there is no real authority for it in the law.

Software experts disagree with this, based on the degree to which Thesis is integrated (or choose your word) with WordPress. Wasylik simply points out that it doesn’t matter, legally, as long as Thesis does NOT contain any significant amount of code copied from WordPress.

As several updates to this post have pointed out, where Thesis was thought NOT to contain WordPress code, it appears it does, and the founder of Thesis is removing all of that code.

But Leo Babauta disagrees strongly with Wasylik’s interpretation!

They had a fascinating back-and-forth, but I’m swayed by the copyright lawyer’s statement quoted above. Leo didn’t address this. He argued that the degree of integration was the key point. Wasylik argued that that wasn’t relevant.

It doesn’t matter anyway, because it’s fair use.

Again, copyright lawyer Michael Alex Wasylik writes:

The GPL is a copyright license: it allows people other than the author the right to copy, distribute, and modify a work – in this case, a piece of software – that otherwise would be restricted to the author only under copyright law… [but] If a use qualifies as “fair use“, then copyright law expressly allows it without a license.

The Software Freedom Law Center (SFLC) told the WordPress founder that Thesis was derivative

SFLC is a free software advocacy group. A common approach of such groups is to suggest that there is a legal basis for what they feel, philosophically, is just. This is to avoid going to court and risk losing. It’s easier to intimidate people into fearing that there might be a legal basis for the philosophy of such a group.

That said, I’m not necessarily against their philosophy. It just doesn’t appear to be law. A common criticism leveled against Matt is well-expressed by lawyer and Thesis user Brian Clark:

…your position is a blend of philosophy (how things should be) and law (how things are). I have nothing but respect for your ideas about the way things should be, but the GPL issue has been presented as if it’s settled in line with your philosophy, when the reality is, copyright law does not support the way you wish the GPL worked.

There hasn’t been a real legal test case to know for sure

Accurate. But probably not relevant. Copyright lawyer Michael Alex Wasylik writes:

This specific issue appears to have never been fully litigated…. However, the legal test for what makes a derivative work in general copyright terms is many decades old, well-settled, and fairly clear.

Also, Wasylik writes extensively about how a case that is very relevant supports the view that Thesis is NOT derivative in Why The GPL Does Not Apply To Premium Wordpess Themes.

Thesis contains GPL’d code!

This is based on Drew Blas’s analysis. However, Chris Pearson has addressed that here:

[Rick Beckman] put that code into Thesis when he worked for DIYthemes. I am removing it this week; it will not appear in 1.8 final.

Re: “This function is mostly copy pasta from WP” Chris writes “It’s gone in 1.8.

About licenses and copyrights

  1. Wikipedia: GNU General Public License
  2. Why “Free Software” is better than “Open Source”
  3. The GNU General Public License – GNU Project – Free Software Foundation (FSF)
  4. This matrix tries to express some proprietary-EULA, GPL, CDDL and BSD licenses in terms of the rights in copyrights and patent rights.

The Thesis founder acted like a jerk in the interview

Maybe. Chris admits “I reacted poorly to accusations of ‘breaking the law.’”

But his business was attacked over a long period of time, and then he seems to have been baited just before being interviewed. User skitzzo on hacker news wrote that:

Guys, it’s important for you to not frame your opinion solely on this interview. Take a look at Matt’s tweets prior to this as well as his comments elsewhere. He’s far from a gentleman or patient.

He was asked for examples, and gave these:

  1. Matt’s sarcasm: I’m just so broken up that WordPress is useless without #thesiswp, best theme in the world, responsible for all innovation.
  2. Matt claiming Chris verbally abused Jane Wells
  3. Matt calling Chris a “non-coder” and impugning the Thesis theme
  4. http://twitter.com/photomatt/status/18533505517
  5. Matt blatantly patronizing Chris

The Thesis founder seems to be acting out of self-interest, not legal correctness

True to a degree. He is protecting an excellent product, in my opinion.

But Chris Pearson’s seeming common-sense expectation that he is doing nothing wrong appears to be legally correct.

Your comments?

There has been an enormous amount of disagreement on this topic. I have no expertise in law or software to apply. All I have done is try to summarize a close reading of what has been written.

I would love to hear your thoughts. Many Thesis users would like reassurance that the product they purchased is legal, and has a long healthy life ahead of it. Conversely, if this is not likely, they would like to know why.

What is community worth to you? — NevilleHobson.com
July 16, 2010 at 3:22 am
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links for 2010-07-16 « Lelapin’s Weblog
July 16, 2010 at 11:06 pm
WordPress – Thesis Disagreement | Mullenweg vs Pearson
August 8, 2013 at 9:14 pm
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2 gayatri April 4, 2012 at 9:46 pm

Drew says “I think if Chris removes all WordPress derived code from 1.8, then he will be free to license 1.8 as he sees fit…”

why should he do such an idiotic thing

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3 alfiesaden January 4, 2012 at 4:59 am

hi – is it just me !! can any one explain why when i type in the yahoo browser “www.davidglarson.com” i get a different site yet whe i type it in google its ok? could this be a bug in my system or is any one else having same probs ?
alf saden

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4 Dave Larson January 10, 2012 at 3:59 am

I’ve never heard of the Yahoo browser. Do you mean bing.com, the Yahoo! search engine? And when you say “type it in google” do you mean Google.com, the search engine, or Chrome, the Google search engine?

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5 branchenverzeichnis online October 24, 2010 at 4:20 am

Nice post! GA is also my biggest earning. However, it’s not a much.

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6 keti July 23, 2010 at 1:34 am

it was very interesting to read.
I want to quote your post in my blog. It can?
And you et an account on Twitter?

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7 Dave Larson October 26, 2010 at 12:07 am

Absolutely. Feel free to copy or link as needed :)

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8 Mike Wasylik July 17, 2010 at 8:20 am

Oh, one more thing: the notion of a “hacker” who “exposed” the Thesis code is more than faintly ridiculous: the Thesis code is right there in the .zip file. The only 133t hacking skills you’d need would be the ability to open a zip file and read the raw text contained therein.

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9 admin July 17, 2010 at 9:25 am

Agreed. I haven’t had time yet to determine what was meant by that. Will clear up or reword.

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10 Mike Wasylik July 18, 2010 at 5:38 pm

Sorry about the somewhat snotty tone on the “hacker” thing – I didn’t mean it that way.

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11 admin July 18, 2010 at 9:44 pm

hehe I found it humorous…and accurate :) The incident was that Thesis source code “became compromised by a hacker.” Have updated to reflect.

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12 Mike Wasylik July 16, 2010 at 10:59 pm

David, thanks for covering the issues.

In response to Brian Layman, I’ve said from the beginning that incorporation of WordPress code into themes would likely render them derivative. If, as it seems, large chunks of code have been copied from WordPress into Thesis (and I just checked Thesis 18b1 – the “copy pasta” section is in there) then it’s much, much harder to argue that the theme, or at least portions of it, wouldn’t be derivative. It also impacts the fair use argument.

DIYThemes, and Chris Pearson in particular, have known my position for some time. They linked to it extensively when I first wrote it, and Chris refers to it in the interview with Matt (although Matt actually got my name right – we’ve known each other since Matt wasn’t old enough to drink). Chris cultivates the impression that he is intimately familiar with all the Thesis code, and if so, would have surely known about the “copy pasta” of code into Thesis. For him to cite my articles as support, when so clearly they would NOT support the inclusion of copied code, is either a surprising blunder or deliberate misdirection. I don’t know Chris well enough to know which, and he hasn’t offered me any insight as to what he knew and when.

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13 admin July 17, 2010 at 9:23 am

Thanks, Mike. Neither Chris nor Matt seem to be credible sources on this, but in different ways for different reasons.

Chris has made several indications in replies to questions on Twitter that there will be no inclusion of copied code from 1.8 final going forward, but definitely seems caught out by how much was included.

My interest has mainly been whether to recommend thesis to clients going forward, and that turns on several issues.

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14 Drew Blas July 16, 2010 at 8:32 am

Outside of Thesis I took a more in-depth look at what everyone thought was the Thesis issue: Does the GPL apply to themes and plugins?: http://bit.ly/cygoRV

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15 admin July 16, 2010 at 9:04 am

Well covered. Your post and Wasylik’s Why the GPL/Derivative Work debate doesn’t matter for WordPress themes I would now suggest are the two most important to read.

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16 Ozh July 16, 2010 at 4:56 am

Interesting summary. I’ll just remember from all this that Pearson seems to be a huge dickhead, though.

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17 admin July 17, 2010 at 11:23 am

I think that is the primary takeaway for most folks, unfortunately. Chris certainly tweeted a lot of regrets.

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18 zota July 15, 2010 at 10:28 pm

Keith,

I’m not leveling an accusation of further infringement. I’m pointing out that themes must necessarily have extremely similar code, and that among GPL themes, this is not an issue. As I said, this is the point of the GPL. When someone — inevitably — finds extremely similar code to other GPL themes in Thesis, it will become an “issue.” If Thesis were GPL, it would not be any issue at all. I think that noting the unnecessary shot in the foot is certainly helpful.

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19 Keith Casey July 15, 2010 at 8:31 pm

@Drew – Actually, Matt’s position is that regardless of if there is derived code or not, the PHP portion of the themes can only be GPL. The only exception is the CSS and images that go along with it. Therefore, Chris still won’t be able to license his work as he wishes.

@zota – You’re making an accusation and implying further infringement without any supporting facts. That doesn’t help anyone.

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20 zota July 15, 2010 at 6:49 pm

That analysis of the “suspect” code was only for the WordPress core. I’d be very surprised if there weren’t also code from other themes and frameworks, which are all GPL.

This is the whole reason for the GPL — to make it okay to re-use code in this way. Trying to dance around it like this (using free code while trying to lock it up) is going to end badly.

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21 Drew Blas July 15, 2010 at 6:20 pm

I think if Chris removes all WordPress derived code from 1.8, then he will be free to license 1.8 as he sees fit (then we get back into a debate about if themes are derivative, for which I lean towards siding with the themes rather than WordPress, although it’s a very grey area).

However, 1.7 would still be subject to the GPL and as such anyone who bought it is entitled to distribute freely as they see fit. There’s no “putting the cat back in the bag” on that front.

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22 admin July 15, 2010 at 6:24 pm

Interesting. That seems to fit with what I have heard as well, unless fair use applies.

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23 Brian Layman July 15, 2010 at 5:55 pm

Is “Legally, Thesis is not a derivative work” affected by the lines of WordPress code now found in Thesis (source: http://www.andrewnacin.com/2010/07/15/thesis-gpl/ ) and the comments in the thesis code:
* This function is mostly copy pasta from WP (wp-includes/media.php),
* but with minor alteration to play more nicely with our styling.
(source: ./lib/functions/content.php)?

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24 admin July 15, 2010 at 6:02 pm

I’ve updated the post to reflect Chris’ response: He’s removing from 1.8 any “suspect” code.

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25 anon July 15, 2010 at 5:21 pm

I see that @GrayWolf recently referenced this:

Matt manipulated search results for personal gain by posting complete crap to something hidden years ago, got banned by Google: http://www.seobook.com/archives/000755.shtml

His tweet: http://twitter.com/graywolf/status/18634945853

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26 anon July 15, 2010 at 5:11 pm

I think Thesis users are safe. Chris points out:

“My plan now is to continue to develop Thesis. Besides, if a lawsuit occurs, it won’t end for years. It’s a non-issue, really.”

http://twitter.com/pearsonified/status/18631167859

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27 Bill Queener July 15, 2010 at 4:54 pm

Boy, I REALLY didn’t like the way Pearson came off in that interview. Interesting to see how Matt (“Mr. Nice Guy”) was messing with him beforehand.

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28 admin July 15, 2010 at 4:57 pm

I’m not sure how fair seeing those comments by Matt in isolation are, but it certainly shows a different side than came across during the interview on Mixergy.

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29 Lillian Bryant July 15, 2010 at 4:52 pm

Thanks for the summary. I was getting a headache reading all those posts!

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