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.