GPL and the courts - a case against a case

Written by Jeremy Wilken 15 Jul2010

Where does the GPL's jurisdiction end? Some rather stimulating discussions have risen over the past few days on Twitter and on blogs across the net. Its hard to know who is the protagonist and antagonist, but the main players are Chris Pearson (left), creator of Thesis (a popular Wordpress theme) and Matt Mullenweg (right), founder of Wordpress.

Andrew Warner (middle) of Mixergy invited the two to have a little chat. Please watch/listen to this debate for a lot of insight into the arguments. Also, see several posts by Jane, Joel, Drew, Mark (my personal favorite), and hundreds of posts around the net. The good intentions of Andrew were to hopefully bring the two together and possibly find a common ground and solution to this issue, but that didn't happen.

Listening for more than a few minutes will show a lot of the personality behind both individuals. I'm completely turned off by Pearson's attitude and lack of respect for Mullenweg, but that's not my concern here. Quite simply, it boils down to Pearson claiming if Mullenweg and Wordpress want to force GPL compliance on Thesis, they'll have to challenge it in court. Sounds logical, but I'm pretty sure its a bad way to solve this.

We've come so far only to cry to the courts?

I'm against going to court in this case. Thesis is not hurting Wordpress, at least not in any noticeable way. The number of sales of Thesis is only equal to about the number of times Wordpress is downloaded every four hours. That's what I'd call a pretty small margin, but Thesis is still well known.

Regardless of your position on if themes are required to be GPL and if they are considered derivative works (this is the core of the debate), you don't want a court to decide this. Why not? Simple, nobody really wins.

Why the courts are a bad place to settle this

I'm assuming this is the case, but if this were to go to court it would happen in the US. My first concern is that the court case would either be enforceable only to US based entities, or that the US court decision would become the hallmark for all cases of this nature. Thus, my comments related to courts are all based on the US court system.

Courts would have a hard time making a decision because of the lack of precedent. Generally, part of the way a case is decided is to look at previous cases. Since they're aren't any good previous cases to draw on, this will be more than just a case about Wordpress and Thesis. It will most certainly turn into a microcosm for open source projects around the world.

Courts are often very disruptive to the lives of those involved in an active case. Its unlikely that a case would be seen for many months. Therefore, the amount of money, energy, and time required to take this to court would likely have a major impact on the Wordpress community as a whole, and that's a major risk to take.

Judges are usually lawyers, who are good at law. However, I don't believe the courts will have much concept for what open source means or stands for. To me it doesn't make a lot of sense to leave the decision in the hands of a court, which likely won't be up to date on open source. They might be able to catch up, but if the case lands in front of a judge who has been sitting for 30 years, I'd be a little fearful for that judge's ability to understand the concepts of the rapidly changing open source world.

Let's consider the two possible outcomes shall we?

Wordpress takes Pearson to court and wins

If Mullenweg and Wordpress won, it would provide a clear and definitive answer to the debate that themes must be GPL. This would then likely be extended to anything that is build on Wordpress, including plugins, custom modifications, etc. Then this would spread to other OS platforms. Sounds like a win for Wordpress right?

Wordpress would then have the right, and arguably the duty, to enforce GPL licensing for any item built for Wordpress. Let's think about those implications. There would need to be a new task force and budget setup to enforce this and I would bet that it wouldn't be cheap or easy.

I don't know how much money Pearson has to handle a lawsuit like this, but it would certainly cost him. I don't think this would bode well for the future of Thesis financially, and also I would imagine many of his user base would leave. I've seen numerous comments about people who didn't understand the licensing issue, and are now changing their minds about using his product. Chances are the financial obligations would drown Pearson and Thesis along with it.

This would have broad implications beyond themes in Wordpress. In fact, I'm concerned how far it might be interpreted, because court cases become precedent. This decision could be used to throw a lot of legal weight behind the GPL, which is interesting because in my opinion it tries to keep legal rights with the users and not with the licensee of the code. It seems like a potentially dangerous situation where entities with enough money could benefit from the ruling, or in another sense, it could allow people to use the GPL as a club to hammer others.

Wordpress takes Pearson to court and loses

If Pearson won, it would probably mean a few things, but mainly that non-GPL plugins and themes would probably come back into fashion a little more. Other licenses (like the one Pearson is using now) can add further restrictions to users, which is the main reason to use them. It means that you have more 'legal' right to restrict your user's rights.

Pearson would retain his license, and if he was lucky wouldn't have to pay his lawyer. That alone would save him a lot of trouble, but I'm not so sure it would help him bring in more sales. Since it would air out so much dirty laundry, take months to decide, and probably drain him, I fear even a win would strangle Thesis. Not exactly what I'd call success.

Wordpress might be forced to open its theme and plugin directories to non-GPL code again. Courts have a funny way of deciding a case, and then adding additional requirements beyond the scope of the case. Wordpress will have spent a lot of money to lose, and that money could have been put to much better usage elsewhere.

This case would basically lead to the belief that themes and plugins are not considered derivative works (which might be quite true), but likely will carry over into just about any other GPL licensed platform. Again, the decision would become the precedent forcing an unknown number of additional issues around the open source world. It would even dampen the credibility of open source.

If not the courts, then what?

The reason people go to the courts is because they don't know how else to make a decision. Both sides won't back down, and I don't see it going anywhere unless someone else steps in. Luckily there are people in the world who aren't judges, but are capable of helping to mediate.

In fact they are called mediators. One possibility (of many) is for Mullenweg and Pearson to agree to a third party person or group of people who will settle the decision for them. The main thing is that everyone has to agree to follow the decision of the mediator(s) as if it were a court decision.

This assumes that both sides could agree to a set of people to mediate, and that they would actually follow the decision of the mediator(s) after the fact. That comes down to honor, and I only hope that both sides would be able to accept the outcome.

The best option (that's probably not an option)

I'm in favor of Thesis going GPL voluntarily, if for no other reason to be respectful to Wordpress and its community. Taking an example from Joomla, JomSocial (a popular social networking extension) refused to use GPL for many years. Recently, it made the switch and has now been promoted by Joomla and is actually used by Joomla for the people.joomla.org website. That additional publicity has pushed JomSocial even further than before.

Likewise, Thesis could get a major boost simply by going GPL and by the extensive coverage that would receive (especially after the past week of debate). It would forbid Pearson to limit the usage of Thesis by domain as he currently does, but many business models have arisen around commercial GPL that are working. GPL is a selling feature in today's market, and that is why (if Pearson could accept it) Thesis would be more successful under GPL than it is now. People who don't care about GPL won't care if it is GPL, so he wouldn't continue to push out those who want GPL products.

Pearson's biggest argument (in the debate above) is he doesn't want to go GPL, not that GPL isn't a good business decision. It doesn't fit with his personal feelings, which carry over into his business practices. I don't actually think he would go GPL unless forced, which leaves us at the beginning.

This is all my opinion, but it seems that we'll be seeing legal action to settle this debate. I can only hope for the best if that happens.

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