Why WordPress Themes are Derivative of WordPress
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No, Themes are NOT Derivative of WordPress
At least, not according to extant copyright case law:
http://www.chipbennett.net/2010/07/20/wordpress-themes-gpl-and-copyright-case-law/
The reality is, the Copyright Act gets to define "derivative work"; insofar as the FSF's interpretation of "derivative work" differs with the wording of the Act and the court decisions in relevant cases, the FSF's interpretation is wrong.
Unless a Theme incorporates actual, copyrightable code from WordPress core, it is not a derivative of WordPress core, period. Interoperability via function calls and use of WP global variables and filter/action hooks does not cause a Theme to be considered derivative.
Wrong
Wordpress runs just fine without any external themes.
Can a external theme run without Wordpress - no, so of course themes are derivatives of Wordpress - without Wordpress the theme has no function.
Besides, copyright isn't the issue, the issue is that Wordpress is GPL, and there are some "pay me" Themes that are not. That's strictly against the GPL license, and that's the whole crux of the argument.
If the Theme writers don't want to abide by GPL, they should have developed for a different platform other then Wordpress.
Nice try, but patently wrong
Dependent != Derivative
That a Theme is completely dependent upon WordPress does not, in any legal sense, cause a Theme to be a derivative work of WordPress.
That's just not how copyright law defines a derivative work. As the Altai court clearly established, in order to be considered a derivative work, a work must incorporate copyrightable content of a protected work in some concrete form.
No incorporation; no derivative work.
Galoob's Game Genie was not a derivative work of the Nintendo gaming console for which it was designed. Accolade's Sega-compatible video games were not derivative works of the Sega Genesis gaming console for which they were designed. Veritel's emulator was not a derivative work of the Sony console whose games it was intended to emulate.
Copyright case law is quite clear on this point: dependency does not cause a work to be derivative of the work on which it depends.
Copyright is exactly the issue. The GPL is a copyright license. It derives its validity entirely from the Copyright Act.
If they're not dependent works, then they are not encumbered by the restrictions imposed by the GPL. Period.
Meh
You're basing your argument on 20 year old cases involving console gaming?
Hope you have a really really really good lawyer to swing that in a modern court.
Because the wordpress lawyer is going to use the exact argument that I presented, and if you base your argument on old fixed cartridge console code, and it's ruling, in all likihood, it will be proved non-relevant to modern CMS based code.
But it doesn't really matter to me. I don't use Wordpress or the stupid Thesis theme. Just seems underhanded to base a money making scheme on free and open source software and not have the common courtesy to follow the license it's released on.
Since WP can make money under GPL it just points out how slimy Thesis is since they figure they would be unable to bilk more clients out of their cash if the Thesis code was released under GPL.
Of course Thesis has a miniscule market share in the world of WP premium themes, so WP probably won't waste their time in court unless way way way way more people go brain dead and buy that crap.
Time will tell.
Not just Sega
Read my post that I cited in my first comment. I'm not looking at just one case. I'm looking at every relevant case I could find. Sega, Sony, and Galoob all directly correlate to the WordPress/Theme question.
But, the key court decision is actually Altai, which represented a clear shift from an expanding definition of "derivative work" to a much narrower definition, with respect to computer software.
If you can cite other court cases since any of the ones that I cited, that refute my conclusions, then I welcome them. I approached the issue not from a perspective of wanting to prove that Themes aren't derivative of WordPress, but rather from a perspective of genuinely wanting to learn what case law had to say on the matter.
If you can't cite other, more recent case law that refutes my conclusions, then I would argue that my conclusions remain perfectly valid, and would stand up in court.
As for Thesis: I'm not a Thesis user or developer or affiliate, or in any other way invested in that particular issue. My comments aren't meant to address Thesis in particular, but Themes in general.
(But, as of two days ago, Thesis became split-license GPL anyway, so that debate is pretty much moot at this point.)