WordPress v. Thesis, No Place for Legal Rule Enforcement

cfm_fb[The WordPress GPL license requires all licensees of its code to make their modifications to the WordPress code available to the public. Thesis is a very popular WordPress theme (27,000 users) that is sold by Chris Pearson, who does not make the Thesis code available. A WordPress theme, for we non-programmers, functions by symbiotically being integrated with the WordPress code that operates our blogs.]

[For the record, I am not writing today to pass legal judgment on the Mullenweg/Pearson debate on the application of the WordPress GPL to the premium WordPress Thesis theme.]

The WordPress point of view was well presented recently by Mark Jaquith here: Why WordPress Themes are Derivative of WordPress.

The Pearson position and the entire transcript and video of the articulate debate between these two outstanding talents can be found at Mixergy.

For those of you who insist on a rules based view of this dispute, the Software Freedom Law Center has opined that certain crucial parts of Thesis are derivative work that are subject to the WordPress GPL.

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For those of us who generally favor the digital freedom/EFF view of copyright, Pearson presents us with a problem.

At first blush, Pearson appears to be seriously subverting the open source paradigm. At the very least, he is certainly not playing very nicely with the thousands of developers who embrace the WordPress paradigm and believe that their economic interest is best served by refusing to build black boxes.

Mullenweg and WordPress also seem to have the “law” on their side, and for some reason the CopyLeft community seems to want to embrace cogent legal analysis to deem Pearson’s work derivative and in violation of the GPL license.

I suggest, however, that Pearson presents to the WordPress community an opportunity to truly embrace digital freedom by not imposing the rule of law to abort Pierson’s experiment. WordPress has the power and “legal” right to do so, but I urge it to refrain from doing so. The true power of the open source adventure is that it is an idea that is right, not a legal straightjacket that has to be tightened.

The triumph of WordPress here will be when Pearson does not cause a massive explosion of black box solutions. The Mullenweg toleration of Pearson’s conduct without legal redress will be the true cultural revolution.

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