WordPress Themes, GPL, and Copyright Case Law

Filed in Web DevelopmentTags: Copyright, GPL, Judiciary, Plugins, Themes, WordPress

Within the WordPress community, the question of GPL inheritance of WordPress themes erupts into contentious debate with the reliability - if not the frequency - of Old Faithful. While I understand that, according to the GPL interpretation of Matt Mullenweg, the Free Software Foundation (FSF), and the Software Freedom Law Center (SFLC), WordPress themes are derivative of WordPress and therefore must necessarily inherit WordPress' GPL, I would like to investigate the issue not in light of their interpretation but rather in light of copyright law and precedent case law.

Before I begin, let me add an important caveat: I have no qualms with the GPL. I have always released - and will continue to release - under GPL anything I develop related to WordPress. I do so because I choose to do so, as a means of making even a minor contribution to a project from which I believe I have personally benefited. I do have issues with how the GPL-inheritance question has been handled - but those issues are out-of-scope for this post.

Having (hopefully) made that point clear, let's begin!

What US Copyright Law Says

US Copyright law defines a "derivative work" as such:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

Note the key adjectives: recast, transformed, and adapted.

Consider also Section 102(b), which states:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

This clause establishes the boundary around copyright between copyrightable expression, and non-copyrightable ideas.

Summarizing GPL Inheritance Requirements

To summarize GPL requirements regarding license inheritance for derivative works 1:

  1. The GPL only applies to distribution of a (modified or unmodified) GPL-licensed work, or a derivative work. Any activity involving use, modification, or creation of derivative works that does not involve distribution is outside of the scope of the GPL.
  2. Distribution of a (modified or unmodified) GPL-licensed work, or a derivative work, requires that such distribution be licensed under GPL.

The GPL is what is now referred to as a "copyleft" license: a modified public-domain license that takes advantage of the exclusive rights granted by copyright law to prevent derivative works from being restrictively licensed. Since the copyright owner has exclusive right to produce and to distribute derivative works based on the copyrighted work, the GPL intends to grant unlimited usage rights (to use, study, modify, etc.) to the end-user, while forcing follow-on developers of derivative works to release those works under the same license.

It is important to understand that, because the GPL explicitly defines any activity not involving distribution to be out of the scope of the license, and since right of distribution is solely derived from copyright law, that GPL derives its legal basis from copyright law alone. This distinction separates the GPL from most other traditional software licenses, which derive their basis for usage and modification restrictions not from copyright law, but from contract law.

Notes:

  1. WordPress is released under GPL version 2.0. I'll try to summarize below the parts of the license germane to derivative works.

    First, from the Preamble:

    The reason we have a separate public license for some libraries is that they blur the distinction we usually make between modifying or adding to a program and simply using it. Linking a program with a library, without changing the library, is in some sense simply using the library, and is analogous to running a utility program or application program. However, in a textual and legal sense, the linked executable is a combined work, a derivative of the original library, and the ordinary General Public License treats it as such.

    ...

    The precise terms and conditions for copying, distribution and modification follow. Pay close attention to the difference between a "work based on the library" and a "work that uses the library". The former contains code derived from the library, while the latter only works together with the library.

    Terms and Conditions, Clause 0:

    The "Library", below, refers to any such software library or work which has been distributed under these terms. A "work based on the Library" means either the Library or any derivative work under copyright law: that is to say, a work containing the Library or a portion of it, either verbatim or with modifications and/or translated straightforwardly into another language. (Hereinafter, translation is included without limitation in the term "modification".)

    Terms and Conditions, Clause 2:

    These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Library, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Library, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.

    Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Library.

    Terms and Conditions, Clause 5:

    A program that contains no derivative of any portion of the Library, but is designed to work with the Library by being compiled or linked with it, is called a "work that uses the Library". Such a work, in isolation, is not a derivative work of the Library, and therefore falls outside the scope of this License.

    However, linking a "work that uses the Library" with the Library creates an executable that is a derivative of the Library (because it contains portions of the Library), rather than a "work that uses the library". The executable is therefore covered by this License. Section 6 states terms for distribution of such executables.

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77 Responses to “WordPress Themes, GPL, and Copyright Case Law”
  1. chip_bennett says:

    WordPress Themes, GPL, and Copyright Case Law – http://www.chipbennett.net/2010/07/wordp

  2. Like I said earlier. Excellent just excellent. or was it awesome? =)
    You are an excellent writer I must say.

    This really is how one must approach this subject. Find case law, talk about how things interact and why different cases is pro or against a certain interpretation.

    Now I’m awaiting an as detailed response from the themes/plugins are GPL camp. They really need to step up since none of the themes are GPL articles/posts comes even close to the depth of this article.
    From what I’ve understood the WP core crew are going to present their view on things on WP.org. I hope their pro-GPL article is as well researched as this one and includes references etc to cases that is in favour of their interpretation. Given that the only source of their arguments for at the moment is an biased response from SFLC the really need more unbiased sources.

  3. Mark Jaquith says:

    A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

    I’d absolute describe a WordPress code extensions (themes or plugins), as “elaborations, or other modifications.” Themes necessarily have WordPress code in them. They necessarily use code from the original (and GPL’d) WordPress themes. Plugins and themes absolutely “transform” and “recast” the WordPress application. That’s what makes them so great!

    In the end, neither of us are lawyers, and even if we were, this is new legal territory. Actually, it’s rather exciting to be involved in a passionate debate over something new like this that could have such broad-reaching implications, wouldn’t you say?

    I regard a WordPress extension, as an “elaboration” of WordPress code. You may consider it to be a separate work that is not at all “based upon” WordPress. It doesn’t sound like either of is coming closer to changing the other’s mind. We’ll see how it shakes out, I guess!

    P.S. how is this post shorter than the comments you left on mine? ;-) I kid, I kid.

    P.P.S. No website left because your OpenID functionality was just hanging when I tried.

  4. Mark Jaquith says:

    Totally missed the other pages. I take back my comment about brevity!

  5. Chip Bennett says:

    Mark,

    Thanks for stopping by and taking the time to read and comment. I agree that it is indeed exciting to be involved in such a passionate debate – though I appreciate that we can discuss such controversial and potentially incendiary topics as dispassionately as possible.

    As I said up front: I have no problems with the GPL, and appreciate the benefits it has provided to me. But, I also see a community benefit to discovering the truth, which I believe will cut through the emotional and sometimes propagandistic rhetoric (from both sides of the debate), so that it can cease being a source of division for the community.

    What I specifically wanted to look at with this post is not the logical or common-sense arguments, but what the courts have had to say on the matter. With something like copyright, in a common-law jurisdiction like the U.S., the law is written fairly open-ended, and the specifics are defined by court decisions. So, we can debate the logical and common-sense arguments into eternity, but what really matters is the reasoning behind the various court decisions involving copyright – and especially those involving software copyright.

    And, as I said in the post: I don’t see copyright case law supporting the argument that themes are derivative of WordPress because they are “elaborations” or “modifications” of WordPress. I’d love to hear another interpretation of this or other copyright case law, that would support such an argument.

    I agree that neither of us is a lawyer, and I would certainly welcome a lawyer explaining how I am misinterpreting the cases I’ve cited (or, for that matter, backing me up on that interpretation!). Regardless, I find it interesting – and instructive – for us to discuss these decisions, even as laymen.

    (And I do apologize for getting overly wordy in my post and in my comments.) ;)

    p.s. thanks for the OpenID heads-up. I’ve not checked in on it for a while. I’ll go do some investigation, and figure out what’s wrong.

  6. Chip Bennett says:

    @Mark:

    Totally missed the other pages.

    Are the footnotes obscuring the pagination? I’m still experimenting with both.

  7. Ryan says:

    Hell of an article Chip!

    Can’t wait to see if there’s an outcome on this topic from the potentially upcoming Matt vs Chris legal battle.

  8. Doug Stewart says:

    Chip:
    As I said on Twitter — well done.

    While I, too, am sympathetic to the GPL side of things, the more I read, the less convinced I am that the Foundation, Matt, et al. would prevail if they take Chris up on his request to be sued. There are simply too many factors, including the necessity of a technically-competent jury, to declare a potential suit as an easy win and the substantive downsides to a loss are indeed severe.

  9. Mark Jaquith says:

    Trying my comment again, now that I’ve seen pages 2 through 4.

    A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

    I’d absolute describe a WordPress code extensions (themes or plugins), as “elaborations, or other modifications.” Themes necessarily have WordPress code in them. They necessarily use code from the original (and GPL’d) WordPress themes. Plugins and themes absolutely “transform” and “recast” the WordPress application. That’s what makes them so great!

    WordPress is non-compiled code; therefore by definition, no static linking exists between WordPress core and Themes.

    Why the distinction on static linking? PHP is compiled into bytecode on the fly (or, not on the fly in the case of using a PHP opcode cache). PHP code can also be compiled. Why should that make a difference? I don’t think the compiled or non-compiled nature of the code, or the file in which code is contained, makes it any more or less separate, as they all are all one as one application. Not WordPress and a Theme communicating or interoperating, but running together as one functional unit (etc, you’ve read my post).

    The Nintendo court distinguished Midway by pointing out that the circuit board distributed in Midway substantially copied and replaced a portion of the original video game circuitry, whereas the Nintendo add-on did not actually incorporate any of Nintendo’s protected expression.

    The add-on was separate hardware that allowed the user to change three 6- or 8-byte values. It’s hardly on the level of a theme or a plugin which can change entire swaths of code, add new functionality, or disable existing functionality. In terms of modification, the Game Genie was about the equivalent of an air horn and “timing codes” so social conservatives can bleep out or distort swears in songs. And it’d only work three times a song, so it’d be useless against Kid Rock (ZING).

    Also, Galoob appears to refute the argument that Themes are derivative of WordPress due to their dependence upon WordPress core, their design to interact with WordPress core in the same way that WordPress interacts with itself

    It was a 24 byte one-way filter, completely external to the game. It didn’t even have the ability to add or remove code — only flip one of 192 light switches into a different position. It’s a far more subtle form of modification than WordPress extensions have.

    The Sega court held that a copyright owner could not erect barriers intended to prevent interoperability with follow-on works, and that copying of code required to accomplish that interoperability, in the expression of a separate, copyrightable expression, did not constitute copyright infringement.

    From what I can tell, Accolade did not substantially incorporate that code into their work. Sega was saying that Accolade privately converting decompiling their code was infringement, even though they never distributed it (at least, not substantially). That’s not what we’re saying.

    This incorporation must involve the actual creative expression of the protected work, not merely the mechanisms of interaction, which are non-copyrightable ideas.

    To be clear, expression means code, in this case. The implementation of an idea. So the idea of filters is not copyrightable. WordPress’ filter implementation is.

    In order to be derivative, a work must bear substantial similarity to a protected work, based on an Abstraction-Filtration-Comparison test.

    I think Thesis would fail this test (that is, it would bear substantial similarity). There may be a gray area where themes that don’t do much in their code and just display a list of posts have less similarity than themes which integrate themselves more tightly into WordPress code. We’d have to see how it went in court.

    Further, as Sega and Sony demonstrate, even a Theme’s use of WordPress core function/global variable calls and filter/action hooks merely constitutes incorporation of non-copyrightable mechanisms of interoperability.

    This is the crux of our disagreement. I do not consider them mechanisms of interoperability. They are mechanisms of changing WordPress. They are WordPress itself! WordPress has external APIs for interoperability. RSS, Atom, AtomPub, XML-RPC. If you want to look at the Sega case, having someone look at WordPress source code in order to figure how to interoperate with those APIs wouldn’t violate the WordPress copyright.

    Theme PHP files generally describe a semantic HTML markup. This semantic markup on its own is likely not copyrightable, as it falls under merger and/or scenes a faire principles.

    The HTML is a distraction. That’s not really the issue. It’s the PHP code.

    Even the basic PHP in Themes very possibly constitutes non-copyrightable expression of ideas, processes, or methods of operation – and as such is not covered by copyright law.

    Again, there may be gray area here where “basic PHP” is evaluated by courts differently than something like Thesis. Coincidentally, and tangentially, the integration with WordPress is roughly proportional to the benefit that would come from it being freely licensed, and as well proportional to the extent to which an anti-GPL theme developer might feel inclined to give a restrictive user license. No one would sue because of a foreach loop. :-)

    Anyway, thanks for writing this. It seems very much in the spirit of my post (the difference being that my post being more of a technical analysis, this being more of a legal exploration). It’ll take a court case to look at both technical and legal aspects and give us a conclusive answer. It was interesting reading all these other cases, but I think what they make most clear is that copyright in the digital age is complicated, and there is still a lot of legal ground yet to plow.

    I really do have to disengage from this whole debate. I just got in trouble with the Mrs. for spending so much time on it! I’m going to go back to coding with WordPress and releasing everything I distribute under a non-restrictive license. It’s easy to forget that beneath the bickering and the mountain of legal and technical minutia, there’s an amazing and fun publishing platform that was downloaded 10 million times in the last month! :-)

  10. Sean Kaye says:

    Great piece! Incredibly well researched and thought out.

    I agree with you that Themes are not derivatives and are effectively a working example of “fair use”.

    One thing I am struggling to get a grip on and your opinion would be interesting is, what exactly is WordPress protecting under the GPL? What is the copyrightable material?

    For example, the functions and things to make database calls or do screen layouts are not necessarily able to be covered and the output content belongs to the users. Most of what WordPress does is to shunt data to and from a database or organise the user’s data for presentation.

    So I ask, what exactly is covered?

    I also think your analysis on “loss” is excellent. As I’ve said on Twitter, themes are additive in their impact to the product so there really can’t be “loss” and therefore no damages. Would you agree?

    Excellent stuff.

  11. Chip Bennett says:

    @Doug Stewart:

    I think, even more so now, that Thesis is a special case, due to the extent of copying of core WordPress code. (Note: I don’t know what that extent is alleged to be, fully.) Interestingly, the Altai decision certainly implies that Thesis can be held accountable for infringement for version X.Y, even while version X.Y+1, which presumably has all core WordPress “copy pasta” removed, is held not to be infringing.

    But, I don’t think even Thesis would be a “slam dunk” case, because I don’t know what result the court would get from an Abstraction-Filtration-Comparison test. It is entirely conceivable that the court could rule either way (again: not knowing the full extent of what was copied from core into Thesis).

    If Thesis were ruled to be infringing, I don’t think the ruling would have that much reach into other Themes. But, if Thesis were ruled not to be infringing, the results would be devastating for advocates of GPL inheritance.

  12. Chip Bennett says:

    @Mark Jaquith:

    I appreciate your (as usual) thoughtful reply. I’ll incorporate your thoughts into the response it deserves, as free time, and its appropriate use, allow.

  13. Chip Bennett says:

    @Sean Kaye:

    Great piece! Incredibly well researched and thought out.

    I agree with you that Themes are not derivatives and are effectively a working example of “fair use”.

    Note: I believe themes are not inherently derivative. Unless and until a court actually considers a specific Theme, it will be difficult to say anything more definitively.

    Thesis is a good example: a court will have to determine if the “copy pasta” code constitutes infringement of copyrightable expression from WordPress core. I couldn’t even hazard a guess as to how that would turn out, because such a suit would be unprecedented, and because I’ve not seen the exact details.

    One thing I am struggling to get a grip on and your opinion would be interesting is, what exactly is WordPress protecting under the GPL? What is the copyrightable material?

    For example, the functions and things to make database calls or do screen layouts are not necessarily able to be covered and the output content belongs to the users. Most of what WordPress does is to shunt data to and from a database or organise the user’s data for presentation.

    So I ask, what exactly is covered?

    Here’s one quick-and-dirty example that I thought up: Widgets.

    The idea of Widgets isn’t copyrightable, and likely, WordPress’ specific means of implementation of Widgets isn’t, either. However, WordPress’ expression of Widgets – i.e. the specific Widgets defined in core – would likely be copyrightable.

    Another example: Comments.

    The idea of Comments isn’t copyrightable, and, likely, WordPress’ specific means of implementation of Comments isn’t, either. However, WordPress’ expression of Comments – i.e. the code defined by wp_list_comments() function call – would likely be copyrightable.

    So, a court probably wouldn’t consider using WordPress’ defined mechanism of filtering wp_list_comments() to constitute a derivative work; however, a court very likely would consider the wholesale incorporation of wp_list_comments() to be derivative.

    I also think your analysis on “loss” is excellent. As I’ve said on Twitter, themes are additive in their impact to the product so there really can’t be “loss” and therefore no damages. Would you agree?

    In the post, I didn’t get into any of the relief specified by copyright law. It is likely a topic for its own post (if necessary). But, in brief: relief in a copyright infringement case isn’t necessarily dependent upon loss or damage incurred by the owner of the infringed work. The Act specifies statutory damages based solely upon the severity of the infringement, and that can be awarded at the court’s discretion. So, Thesis could be subjected to statutory fines, regardless of any loss incurred (or not) by WPF.

    Excellent stuff.

    And thanks for reading!

  14. chip_bennett says:

    @MikeWas I referenced your WordPress Theme/GPL derivative analysis post here: http://www.chipbennett.net/2010/07/20/wo… (would love your input)

  15. RJack says:

    Your “not a contract” claim is erroneous:

    “It is important to understand that, because the GPL explicitly
    defines any activity not involving distribution to be out of the
    scope of the license, and since right of distribution is solely
    derived from copyright law, that GPL derives its legal basis from
    copyright law alone. This distinction separates the GPL from most
    other traditional software licenses, which derive their basis for
    usage and modification restrictions not from copyright law, but
    from contract law.”

    The principle that a license is a contract was established by the
    Supreme Court in DE FOREST RADIO TEL. CO. V. UNITED STATES, 273 U.S.
    236 (1927). http://supreme.justia.com/us/273/236/case.html

    “No formal granting of a license is necessary in order to give it
    effect. Any language used by the owner of the patent or any conduct
    on his part exhibited to another, from which that other may properly
    infer that the owner consents to his use of the patent in making or
    using it, or selling it, upon which the other acts, constitutes a
    license, and a defense to an action for a tort. Whether this constitutes
    a gratuitous license or one for a reasonable compensation must, of
    course, depend upon the circumstances; but the relation between the
    parties thereafter in respect of any suit brought must be held to be
    contractual, and not an unlawful invasion of the rights of the owner”

    This contract principle applies specifically to copyright licenses:

    “Although the United States Copyright Act, 17 U.S.C. 101 – 1332,
    grants exclusive jurisdiction for infringement claims to the
    federal courts, those courts construe copyrights as contracts and
    turn to the relevant state law to interpret them.”; Automation by
    Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
    States Court of Appeals for the Seventh Circuit 2006).
    http://ftp.resource.org/courts.gov/c/F3/463/463.F3d.749.05-1172.html

    No federal court in the past eighty-three years has ever ruled that a
    copyright license is anything other than a contract. Eben Moglen’s
    assertion that “licenses are not contracts” is simply untrue under U.S
    law. A copyright license is either an enforceable contract or it’s not
    a valid license.

  16. Chip Bennett says:

    @RJack,

    I actually never said that the GPL isn’t a contract. To claim I made a “not a contract” claim is a mis-characterization of my point, which was that, in granting an implied license of unrestricted use (modifying, copying, et al) except in the case of distribution, the GPL eschews all protections granted by contract law outside of copyright law.

    The GPL is basically a modified Public Domain license, that grants full usage rights to the end user, and only imposes the restriction that any distribution be released under the same license. Explicitly stating everything other than distribution as out of scope causes the GPL to derive its enforceability solely from copyright law, rather than contract law in general.

    Hopefully that clears up the mis-conception.

  17. I’d absolute describe a WordPress code extensions (themes or plugins), as “elaborations, or other modifications.”

    WP extension does not elaborate or modify WordPress it self. Only the information created by the end user. No code is ever added, altered or removed from WP core.

    Themes necessarily have WordPress code in them. They necessarily use code from the original (and GPL’d) WordPress themes.

    Using code would mean for loops, if statements etc. They don’t necessarily use actual code from original themes. Then comes the question if traversing an array is copyrightable. Also ain’t there fair use principle. If the application is meant to be extended and you have to study its code to extend it sounds odd that use of the codelayout and function names would be enough to inherit GPL.

    Plugins and themes absolutely “transform” and “recast” the WordPress application. That’s what makes them so great!

    Thing here is that they don’t recast and transform WordPress application. They transform the information inputted by the end user. Themes/Plugins are also loaded by WP. Not the other way around.

    Why the distinction on static linking?

    Dynamic linking is considered by many to be allowed. Not by the biased FSF how ever.
    GPL#Linking and derived works

    PHP is compiled into bytecode on the fly (or, not on the fly in the case of using a PHP opcode cache). PHP code can also be compiled. Why should that make a difference?

    It is a matter of when and how it happens. It is done by the end user, not by the developer/distributor. The end user is the one that creates a derivative work by your own admission but it is not distributed so the GPL does not come into effect.

    The add-on was separate hardware that allowed the user to change three 6- or 8-byte values. It’s hardly on the level of a theme or a plugin which can change entire swaths of code, add new functionality, or disable existing functionality.

    Show me one piece of theme/plugin code that alters the actual WP core code and not what the functions return? Theme/plugins uses the turn on/off switches that is already in WP core code. They does not alter any code to make it work. If I remodel a keyboard to be an arcade control and then use that with a game meant for keyboards have I altered the game? If I change which keys the game should listen to through the interface the game provides have I altered the core code of the game?

    It was a 24 byte one-way filter, completely external to the game. It didn’t even have the ability to add or remove code — only flip one of 192 light switches into a different position. It’s a far more subtle form of modification than WordPress extensions have.

    Which theme/plugin adds and removes WP core code? By your own admission themes/plugins can turn off/on functions through the interface WP it self provides. No alteration of core code required.

    This is the crux of our disagreement. I do not consider them mechanisms of interoperability. They are mechanisms of changing WordPress. They are WordPress itself! WordPress has external APIs for interoperability. RSS, Atom, AtomPub, XML-RPC. If you want to look at the Sega case, having someone look at WordPress source code in order to figure how to interoperate with those APIs wouldn’t violate the WordPress copyright.

    Problem is the vague definition of an API and that you really have different definitions of it depending of the situation. In essence WP itself is a framework meant to be interacted with or a platform as Matt has called it.
    If its a platform then the systems library exception could come into effect.

  18. RJack says:

    You’re attempting to create new copyright law. The “distribution” of a derivative work as a whole is a matter of contract law. 17 USC § 106(2) governs only “preparation” of derivative works. The Copyright Act is silent concerning the distribution of derivative works as a whole.

    There are two distinct copyright owners in a newly created derivative work:

    17 USC § 103. Subject matter of copyright: Compilations and derivative works

    (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

    Absent a valid contractual agreement between the two distinct owners (preexisting and modifying) of their respective copyrights, no derivative work as a whole may be distributed.

    The GPL cannot create a new right or scope restriction concerning distribution of derivative works as a whole — that is the sole province of Congress.

  19. Chip Bennett says:

    @RJack

    Absent a valid contractual agreement between the two distinct owners (preexisting and modifying) of their respective copyrights, no derivative work as a whole may be distributed.

    I’m not disputing that GPL gains its validity under contract law. Clearly, it does.

    Rather, I’m saying that the exclusive right to make and distribute a work, or a derivative of that work, derives from copyright law, and that any other protections otherwise afforded by contract law have been eschewed by the implied license granted by virtue of the GPL. (In fact, most of the exclusive rights protected by copyright law have been eschewed by this same implied license.)

    Again: IANAL. I’m not understanding how we are saying vastly different things, or how the differences in what we are saying in any way impact the overall analysis?

  20. Ken Newman says:

    “Show me one piece of theme/plugin code that alters the actual WP core code and not what the functions return?” ~ Andreas Nurbo

    So code must modify the original program’s source code at runtime to be derivative? So I can copy code and modify it in my program as long as I don’t have the program write the changes back to the original source? Ridiculous. (And plugins have used preg replace for that)

    By the way, WordPress “provides “the interface” “for turning off/on functions” for it’s own use. Derivatives are by definition WordPress. WordPress and it’s licensed derivatives are the only programs which can legally use the internal APIs and interfaces in a distribution.

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