The ThemeForest and WordPress GPL Explosion

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The debate over WordPress’ use of GPL and how that applies to elements of the WordPress eco-system which “add on” to WordPress, such as plugins and themes, is something which has been simmering for a number of years, but recently hit boiling point…

The last major flare-up of this debate was in 2010 when Chris Pearson and Matt Mullenweg got in a scrap about how themes, specifically Pearson’s Thesis theme, should be licensed. Mullenweg argued that all WordPress themes were derivative works of WordPress (and had legal research to back this up). This means that they legally have to inherit the same GPLv2 License used by WordPress itself. Chris, however, disagreed, arguing that with his business and his theme, he could do what he wanted.

The issue was settled shortly after a Mixergy interview, when Thesis adopted a split license, where any parts of Thesis that use WordPress code inherit the GPL License, but CSS and Javascript remain proprietary.

This solution was the bare minimum that was required for Thesis to comply with the GPL, but nonetheless, it satisfied all parties involved and set an important precedent: if you don’t want to release your themes completely under the GPL, then a “split license” is the appropriate way to license your themes.

Since this incident in 2010, the issue has largely been untouched; a number of theme shops and marketplaces such as ThemeForest adopted the split license and the matter was effectively resolved. The issues remaining are essentially philosophical, rather than legal.

WordCamps and Licensing

The theme licensing issue reared its head again early this year when the WordPress Foundation, the not-for-profit charity which owns the WordPress and WordCamp trademarks, started enforcing its guidelines on “Representing WordPress“, which outline who is allowed to be involved with a WordCamp in an official role.

The guidelines have a number of points, including the following:

[People/companies organizing, speaking, sponsoring or volunteering at a WordCamp must:] Embrace the WordPress license. If distributing WordPress-derivative works (themes, plugins, WP distros), any person or business should give their users the same freedoms that WordPress itself provides. Note: this is one step above simple compliance, which requires PHP code to be GPL/compatible but allows proprietary licenses for JavaScript, CSS, and images. 100% GPL or compatible is required for promotion at WordCamps when WordPress-derivative works are involved, the same guidelines we follow on WordPress.org.

As the guidelines state, they go beyond what is legally required of theme or plugin authors, requiring both any WordPress-related code and any accompanying JavaScript, CSS or images to be released under the GPL.

The first reported instance of this particular item in the guidelines being enforced was reported in January 2013, when Jake Caputo published a post on his blog entitled “Automatically Blackballed“. Jake reported that he had been contacted two days earlier and told that whilst he continued to sell his themes on ThemeForest (with the ThemeForest split license), he “may not speak or volunteer at WordCamps”.

Jake’s post continued, making the point that as a theme author who made a living out of selling themes, and wanted to continue to do so, he had little choice but to take advantage of the huge reach of ThemeForest, with its 2+ million members. Jake saw the WordPress Foundation’s suggestion that he stop selling themes on ThemeForest for the sake of being able to participate in WordCamps as unworkable:

At this point, I have one option that I personally can do; Remove my themes from ThemeForest. Doing so would mean my income would drop to $0 and I would have to lay off my one employee. This is not reasonable. Even if I moved my themes to another marketplace I’d take a hit of thousands of dollars a month.

“A Casualty In A War Between Giants”

One of the subheadings in Jake’s post summed up his feelings on the situation: he personally would have been quite happy selling his themes under the GPL, but he could not do so without leaving Theme Forest which would mean serious financial implications.

The post sparked a series of comments, response blog posts and even podcasts on the subject. General consensus was that Jake was being used by both sides to make an ideological point, and that this was something that needed to be sorted between ThemeForest (and its parent Envato) and the WordPress Foundation. Brian Krogsgard commented on the post:

{The WordPress Foundation’s guidelines] just punish people that care about the platform. Matt or whoever and Envato need to settle their differences – fine. But do not punish people that are a part of that ecosystem, and make their living building products on WordPress.

Envato have responded by way of CEO Collis Ta’eed publishing a response post on WPDaily. Collis argued that the ThemeForest License was merely protecting his work:

Our licensing approach (recently updated) is one that I, as a designer, would want to sell under. It gives protections for my work to ensure I can keep selling and profiting from that work, whilst also satisfying the appropriate level of buyer needs for that price point.

However, the discussion quickly moved to Envato’s refusal to let ThemeForest authors publish their work under whichever license they chose, including the GPL. Matt commented on Jake’s original post:

Many things about this make me sad, including Envato forcing their authors to break WordPress.org guidelines and all that entails.

And then again on Collis’ response post:

Why not allow authors who want to the ability to license their themes as 100% GPL? Give people the choice, they deserve it.

This point was also made by others, and the ball was very much put in Envato’s court as to how the issue was going to be resolved.

License Review

Nearly a week went by without much progress, but six days later Collis once again responded with a post on WPDaily. Collis wrote about how he’d met with Matt at the PressNomics conference a couple of months before, and after that meeting he still felt that the ThemeForest License was correct to protect sellers, and the move towards full GPL adoption was the result of pressure from the WordPress Foundation, rather than due to the belief in open-source principles:

One of my big fears around giving license options is that our authors will feel pressure to make a switch. I’ve met with many of the independent theme shops who have switched their licensing, and not all of them were happy about the decision. Some of our authors have reported being asked to push for completely GPL licensing on ThemeForest. And the recent exclusion from WordCamps feels like it would add further pressure.

Collis continued to state that he felt his refusal to let people choose their own had been “wrong”. Collis then explained that he’d like to sort this by asking the ThemeForest community what they wanted:

[I] feel that ThemeForest should offer an option for authors, if they choose, to sell their themes with a GPL license covering the entirety of the theme. I am going to take this option to our community.

Resolution

On 28th February, 2013, Collis announced the results of the GPL survey on ThemeForest. The results were compelling enough that ThemeForest made the decision to allow their WordPress and Drupal developers the option of choosing whether to sell their themes using a split license or using a GPL license.

This puts the decision firmly in the court of theme developers, many of whom will now choose to GPL their themes. This means that they’ll be able to get involved with WordCamps and other activities representing WordPress. Of course, there will be theme developers who will choose to stay with the split license, but other developers will no longer be penalised for it. And, who knows, we may see an influx of established GPL theme shops finally making use of the huge audience at ThemeForest.

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Author: Holly Bentley

 http://wordsforwp.com

3 Comments

  • nice recap here! thanks for calling attention to the great blogs including WP Daily!

  • i also curious how the license work on premium plugin like revolution slider that were sometime included in the premium theme.

    did the theme seller bought the extended license and include the plugin in theme? what prevent the theme buyer from distribute the premium plugin or used the plugins in many of his/her site. i think its a loss situation for plugin author.

    • I’d imagine they would have either an agreement with the plugin author, or would have purchased an extended license – if they didn’t I’m sure Envato would have taken care of it. It creates an interesting situation for the plugin author, but for the buyer to make use of it, they’d need to know how to pull it out of the theme and implement it elsewhere.

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