[wp-hackers] Re: Removal Of Over 200 Themes?

[Otto]

On Sat, Dec 13, 2008 at 12:05 PM, Jennifer Hodgdon
<yahgrp at poplarware.com> wrote:
> From that article:
>
> ***
> 1) The primary indication of whether a new program is a derivative work is
> whether the source code of the original program was used, modified,
> translated or otherwise changed in any way to create the new program. If
> not, then I would argue that it is not a derivative work.
> ***
>
> So if they start from a GPL theme as a starting point, and then use and
> modify that source code, it is a derivative work. Right?

I almost always agree with Lawrence Rosen, but on this one he's really
stating more of how he thinks it should be rather than how it
currently is. Note he used the phrase "Here's how I would decide in
the cases described above." I'd say that case law on this sort of
thing, such as it is, doesn't generally back up his opinion here.

I would agree that themes should generally not be held to be
derivative works. However, given the current law, my opinion is that
they are. Of course, that's only my opinion, and I doubt anybody is
going to be pursuing anybody for selling non-GPL'd themes anytime
soon.

For those in doubt on this issue, let me restate something I said
earlier that might have gotten overlooked: All of our opinions are
basically meaningless. The only opinion here that matters is that of
the copyright holders of WordPress. Since it's a collective work, that
would be the core commit team's opinion, basically. Only they have
standing to sue anybody for WordPress license violations. Only they
can take it to court. From what I've seen and the direction things
appear to be taking, that seems unlikely to me. They appear to be
using the carrot, not the stick.

So really, anybody making premium themes shouldn't worry much about
that. However, I still think that if you make a premium theme, you
should not expect to get any theme listed on wp.org. That's only my
opinion, of course, but if you're making a business without really
contributing anything back, then why should you get free promotion
from the core? Makes no sense to me. Of course, if your themes are all
GPL-compatible and you sell support or custom theme services, then by
all means, you should have them listed. The idea is to sell service
and support, not software.

-Otto