Well, my comment at the Thesis blog is “awaiting moderation” for over 2 weeks, so I guess it won’t happen anymore. Unsurprisingly so, I might add. The folks at Thesis are apparently, essentially, doing illegal things. The only reason why they can do it is because nobody sues them.
First things first: WordPress themes are GPL, they have to be redistributable under the GNU General Public License. Necessarily, the PHP code (although not the CSS or image elements of a theme) has to be, since it is based on WordPress’ GPL code, GPL. Legal wording:
The PHP elements, taken together, are clearly derivative of WordPress code. The template is loaded via the include() function. Its contents are combined with the WordPress code in memory to be processed by PHP along with (and completely indistinguishable from) the rest of WordPress. The PHP code consists largely of calls to WordPress functions and sparse, minimal logic to control which WordPress functions are accessed and how many times they will be called. They are derivative of WordPress because every part of them is determined by the content of the WordPress functions they call. As works of authorship, they are designed only to be combined with WordPress into a larger work.
Speaking of our specific case of Thesis again, the logic is probably less sparse than in your everyday theme, but every other word except “sparse” fully holds, so I guess it’s not that exceptional in this regard. Or can anybody with legal training assist me, am I wrong there?
The guys at Thesis now go and forbid owners of Thesis to remove the backlink to the Thesis site. I appreciate that such a backlink is a great marketing and SEO measure, but I don’t see the legal grounds for such a thing really. They can certainly sell push-style upgrades, and the images they provide with the theme, and of course their support and forums. But the theme itself seems to be necessarily open source, so the Thesis pricing model seems to need re-evaluation.
Edit 2009-07-19 16:20: Just do clarify, unless I am mistaken they can certainly ask money from people for the theme – there are no limits for monetizing distribution in the GPL. However, they don’t seem to be allowed to restrict people’s rights to redistribute and alter the theme.
Particularly in the Swiss blogosphere, with the recent Thesis craze, I think this is fairly important information. What do you think? Or did I misunderstand some legal background?
July 21st, 2009 @ 12:56
Thesis is showing up all over the place. I have not worked with it yet though. I am experimenting with Artiseer to create the basic files, then go back and add code to create what I want. It is a great time saver.
I think it respectful to leave a link to the theme developer in place, but I do not think that they have the right to insist that it not be removed, particularly when working under GPL.There are times when it may be appropriate to remove that link. I was thinking about a related topic this weekend: the idea of creating an open source theme that allows users the flexibility to change the theme’s files to create what they wish. Thesis is a tool, but the person who works with it to create is the real designer.
July 21st, 2009 @ 16:26
Thanks a lot for your comment
I think the problem is twofold in this context:
1) The Thesis developers may be aware that they are working on a GPL project, but they do not make that fact public – in fact, their public communication clearly sends the message that Thesis is not GPL.
2) Customers are not aware of the fact that they can freely redistribute Thesis if they want to, and they can make as many changes to the framework itself as they like. The Thesis creators have no right to forbid them either of these things.
Furthermore, those who should be the messengers in this becoming public knowledge, the ones advertising Thesis, don’t have any interest in that messenger job: After all, they are Thesis resellers, and want to continue to sell that which technically needn’t be sold in the first place.
It’s an entire micro economy built on air and lies. The entire “premium WordPress theme” marketplace is.
July 21st, 2009 @ 18:40
The web developers who use Thesis for their clients do not seem to be aware of your points under (2). Many of these developers do not really know much more than their clients when it comes to code.
Agreed that the premium theme market is a micro economy built on air and lies. I also admit that I would love to take advantage of it
Seriously, a developer who is adding code or creating graphics should be paid for that service, but basic themes are quick to produce now. When not using Artiseer, I created a series of php and css files where all I have to do is plug in some values, and these files are pretty standard to any site; no reason to charge for that.
July 21st, 2009 @ 19:21
Sure, the graphics and CSS are a different thing altogether, and are a major part the actual design for most sites anyway. As that WordPress blog article points out, it’s recommended but not required that those are GPL. It’s perfectly valid and makes perfect sense for many contexts to charge for these.
The real work is customizing something so it really fits the target audience and/or website goal anyway, and for most clients, slapping everything nicely together and deploying it.
I guess I’m just a bit worked up that people who sell premium themes essentially sell the work of others. Without the awesome piece of software that WordPress is, Thesis would not even be an empty shell.
As an aside, my quick glance at its features didn’t reveal anything that a coder couldn’t do faster and with less hassle directly in a regular theme’s template files. So I’m not really interested in Thesis myself. I do see that the added UI goodness can make things a bit more accessible for a non-coder of course though.
July 22nd, 2009 @ 16:35
Addendum, it seems I’m beating a dead horse to some extent:
http://www.keenerliving.com/gpl-wordpress-thesis-whats-a-guy-to-do
http://www.anotherblogger.com/2009/07/02/wordpress-gpl-thesis/
http://unlettered.org/2009/06/09/is-the-thesis-wordpress-theme-threatening-to-the-gpl/
It is as I thought – Thesis clearly violates the GPL terms it’s operating under, but nobody is going to sue them, so they’ll continue to do so. And, everybody involved knows that already.
And the public doesn’t.
July 29th, 2009 @ 9:37
AS long as I am concerned thesis will violate GPL terms….Many web developers who use their thesis for the clients are not aware of their clients when it comes to codes…
April 28th, 2010 @ 3:26
We should become link partners. Our sites share a lot in common
April 28th, 2010 @ 9:38
Not really. For one, my site does not endorse comment spam.
I took the liberty of removing your link.
June 26th, 2010 @ 11:40
So, please clarify me. Does it mean that it is completely legal to use Thesis Theme even without buying it?
I have downloaded a Thesis Theme from a Torrent Site. I tested it. I love the adds on feature, I love the way it looks, but really, I am hesitant to use it on my site because I don’t want to be violating any copyrights.
Please advice. Thank you very much!!!
June 30th, 2010 @ 15:04
Monetizing websites, blogs, etc is a good way to earn some passive income.:`~
June 30th, 2010 @ 23:22
@Vince I’m not a lawyer, and the solution for me is boycotting companies like that, not supporting their products, even if I’d be using them in a somewhat gray area. Also, until there was a process in your jurisdiction, there’s no true answer to your question. No clue whether either side plans to stress one, and who pays for what if they do.
But, all the evidence points towards the terms of use of Thesis being illegal for the Wordpress context they’re used in. So if they’d stress a process, you’d probably stand a good chance of winning it. If you can afford it, get a good lawyer,don’t use any of the pictures and bits which don’t need to fall under the GPL, etc. etc.
In other words, it would probably be legal to use without paying, but don’t take my word for it, and don’t hold me accountable
Oh, and apologies that my answer comes so late…
@Kyle Off topic, with a spam link which I removed – I’m sure you can do better…
July 1st, 2010 @ 0:50
@haslo. Thanks for the this valuable info.:) I really do appreciate it.
Right now I am trying to investigate it myself. I also tried emailing Matt Mullenweg for this issue but no response yet.
July 19th, 2010 @ 0:12
I have been monitoring whole #thesiswp debate. Though being a Thesis skin dev. I still believe Matt was right till a point. Though the way he reacted on twitter was far away from professionalism and least expected from him. I will rather wait to see Matt filing a lawsuit against Thesis if he things he is also right legally.
July 19th, 2010 @ 14:35
Well, actually it seems like Thesis is not the only problem. There are several WP developers like Headway, Ultimate blogging theme and several more are in the Market.
I hope there will be someone who will try to develop these kinds of themes for free. I know one, Atahualpa, but it is not so friendly compared to Ultimate Blogging Theme and Thesis.
Calling all WP developers… please develop themes like these that are FREE… This is the only way to fight the paid themes.
July 22nd, 2010 @ 12:19
Entirely agreed, Vince. Although with a bit of php knowledge, such elaborate themes aren’t really necessary – I can hack all I want directly in the source :p