There's a straightforward way to resolve this once and for all: if Thesis is indeed GPL, then it doesn't matter what license Pearson uses - anyone can legally copy/distribute/modify/fork/sell Thesis publicly right now, even if Pearson continues to opine that the code is distributed under a different licence. GPL is GPL.
Pearson will most likely sue the first person who actually does this (and refuses the Cease-and-Desist that precedes the suit). The courts will then determine whether or not Thesis is indeed GPL, or whether the distribution was in violation of Pearson's intellectual property rights.
Until someone actually does this, the debate will continue - there's enough ambiguity that the issue won't be resolved until ruled upon by the courts. I really doubt Matt/Automattic will push the issue - there's a lot to lose and almost nothing to gain. (Matt said in a previous thread he thinks Thesis' code is "junk" and doesn't want it in core.)
Until Thesis is publicly distributed and legally challenged, the status quo will continue: Thesis will effectively be private code, and Pearson's position will prevail.
I think that this is a misconception that results from the frequent failure of people to make the distinction verbally between "Thesis is legally required to be GPL if redistributed" and "Thesis is GPL". I expect most of the people who make this mistake are aware of the distinction and are simply using "Thesis is GPL" as shorthand for "Thesis is required to be GPL", but it leads to confusion as in your comment.
IANAL, but the following is my understanding based on the my lack of awareness of anyone licensing code as GPL (even the FSF) who has ever claimed that what you suggest is legal.
Thesis is currently under whatever proprietary license Pearson distributes it under. He probably is legally required to distribute it only under the GPL. There are two obvious ways he can deal with this: stop distributing it or distribute it under the GPL. In the event that he takes the latter path, then people will be able to legally copy/distribute/modify/fork/sell Thesis. However, for now, no one has any license to Thesis' code other than what Pearson has granted them.
The GPL can't force code to be released under the GPL. It can only forbid releasing it under other terms.
5. You are not required to accept this License, since
you have not signed it. However, nothing else grants
you permission to modify or distribute the Program or
its derivative works. These actions are prohibited by
law if you do not accept this License. **Therefore, by
modifying or distributing the Program (or any work based
on the Program), you indicate your acceptance of this
License to do so, and all its terms and conditions for
copying, distributing or modifying the Program or works
based on it.**
IANAL but it looks like Thesis could be implicitly GPL'ed.
You have to prove first that Thesis is a derivate work ... it might seem obvious to some, but it's better to ask a real lawyer or at the very least people with adequate paralegal experience ;)
This is a good point, but honestly I doubt this particular provision will be enforced by the courts.
If Thesis is to be held to this provision, it actually requires a contract formation, which means that the Thesis owners must have been aware of this GPL provision and must have intended to enter into a contractual relationship and all the other conditions of contract formations must have existed. This is really questionable. The Thesis owners could say that they were never aware of this provision and they never intended to be bound by it.
Of course if they say that, they will not qualify under the GPL, which may mean they are guilty of copyright infringement (if they do use GPLed code). But it is still possible that they can hold this position and accept their copyright liability (or perhaps try to use other arguments to deny their liability under copyright law). And if they do hold this position and if you have copied the Thesis code, then you are yourself guilty of copyright infringement and have no excuse.
So, I would not rely on section 5 of the GPL in this case.
This is all academic discussion, none of this is legal advice, and if you are actually considering using the Thesis software, please consult your own attorney.
It does not actually work like this. I am sure Thesis does include at least some original (i.e., not previously GPLed) work. Thus, the person that created that original work is the proper copyright holder. Thus, if you copy Thesis you will be guilty of copyright infringement, and the fact that it does include some GPL code won't help you.
As the matter now stands, if it is true that they use GPLed code, that means that whoever distributes Thesis is guilty of copyright infringement, which means that the owner of the original GPLed code can sue Thesis for lots of money. But that does not mean that anyone can copy Thesis.
Put in other words, the viral effect of the GPL is not automatic. If you use GPLed code in your code it does not mean that your code is automatically GPLed. It means that you have a choice to (i) voluntarily GPL your code, (ii) get rid of the GPLed code from your code or (iii) be guilty of copyright infringement and face the consequences.
This is intended as an intellectual discussion of the matter and is not legal advice.
I was about to argue this, but the more I thought about it, I agree with it.
To put it as I understand it, using GPL code doesn't automatically make your code GPL; it places a legal requirement on you to either license your code as GPL, or to not distribute the source or product. If the author doesn't license his software, then nobody else can take and use it, but the author is in violation of copyright due to the unlicensed use of GPL code.
The virality of the GPL is a requirement of the license, not an automatic effect upon using GPL code.
People are taking issue with the specific legal test you're proposing, but the fact that you are proposing a legal test as a way of resolving the issue is very sensible. This is a legal issue, and it should be tested using the law.
Unfortunately, or fortunately, this doesn't seem to be the way suspected GPL violations are resolved. More frequently there is a community consensus and a public shaming of the responsible company (e.g. http://news.ycombinator.com/item?id=790316). The issue then becomes one of how much negative publicity the company is willing to take.
IOW although "GPL violations" are described in legal terms, could be legally tested, and refer to legal documents, the issue of illegality takes second place to a fuzzier issue of "fairness", which changes from community to community and project to project.
Absolutely - in this case, I don't think any amount of public shaming will convince Pearson to give up millions in ongoing revenue. The only way to test this legally is for someone to step up and take the risk of legal action, so a court can rule on it.
I can tell if he's guilty. I just look at SCO. Emporer has no cloths. I can tell how much Microsoft has sinned by how much piracy.
God does justice.
It's almost like laws of physics. Atheists are the stupidest animals. Get smacked all the time and can't figure-out why.
24
20 When he began the accounting, a debtor was brought before him who owed him a huge amount.
25
Since he had no way of paying it back, his master ordered him to be sold, along with his wife, his children, and all his property, in payment of the debt.
26
21 At that, the servant fell down, did him homage, and said, 'Be patient with me, and I will pay you back in full.'
27
Moved with compassion the master of that servant let him go and forgave him the loan.
28
When that servant had left, he found one of his fellow servants who owed him a much smaller amount. 22 He seized him and started to choke him, demanding, 'Pay back what you owe.'
29
Falling to his knees, his fellow servant begged him, 'Be patient with me, and I will pay you back.'
30
But he refused. Instead, he had him put in prison until he paid back the debt.
31
Now when his fellow servants saw what had happened, they were deeply disturbed, and went to their master and reported the whole affair.
32
His master summoned him and said to him, 'You wicked servant! I forgave you your entire debt because you begged me to.
33
Should you not have had pity on your fellow servant, as I had pity on you?'
34
Then in anger his master handed him over to the torturers until he should pay back the whole debt. 23
35
24 So will my heavenly Father do to you, unless each of you forgives his brother from his heart."
Hello! This is how God's world works, ya animal morons.
11
8 Give us today our daily bread;
12
and forgive us our debts, 9 as we forgive our debtors;
13
and do not subject us to the final test, 10 but deliver us from the evil one.
14
11 If you forgive others their transgressions, your heavenly Father will forgive you.
15
But if you do not forgive others, neither will your Father forgive your transgressions.
Why is it you can't sell your hobby software or music?
Is it a crime to put your life into creating something, marketing it extremely well, attracting a ton of avid fans/users, and deciding that he or she doesn't want others undercutting the price?
If by doing so you violate copyright law by using someone else's code in a way disallowed by the license under which you got access to the code in the first place, then yes.
(I'm not well enough versed in this particular debate to weigh in, but there is an answer to that question, in general, and it hinges on specific details of one's implementation of "creating something.")
It is illegal to take someone else's copyrighted code and create derivative works of and redistribute it in ways they have expressly forbidden you to do so in the license which gives you your right to use it.
It is a crime under US federal law, as well the laws of most industrialised countries. However, you are right in a way in that not all copyright infringement is a crime under US law.
Christians are not under the law but they're not stupid.
19
13 14 Why, then, the law? It was added for transgressions, until the descendant came to whom the promise had been made; it was promulgated by angels at the hand of a mediator.
20
Now there is no mediator when only one party is involved, and God is one.
21
Is the law then opposed to the promises (of God)? Of course not! For if a law had been given that could bring life, then righteousness would in reality come from the law.
22
But scripture confined all things under the power of sin, that through faith in Jesus Christ the promise might be given to those who believe.
23
15 Before faith came, we were held in custody under law, confined for the faith that was to be revealed.
24
Consequently, the law was our disciplinarian 16 for Christ, that we might be justified by faith.
25
But now that faith has come, we are no longer under a disciplinarian.
26
For through faith you are all children of God 17 in Christ Jesus.
Morality, Ethics, Capitalism, License Agreements and the Law... no matter how you may see that they overlap, they're all separate things.
In the end, it's the laws of the land that you're in that matters. As far as I know, I don't believe that these arguments on what is a derivative work are anything more than opinion. Settled cases are not equivalent to legal precedent.
The best thing that could happen for everyone involved is that it goes to trial and ends with a judgement, and then all this posturing and pontificating will hopefully come to a merciful end.
If you violate a license as the foundation of that work? Not a crime, but certainly a civil violation of said license. Thesis' author has ignored the terms of the license of the software that he used in the construction of his own software, but ignorance does not merit pardon. Thesis, by inclusion of GPL code, is required to be licensed under the GPL. Failure to do so is unlicensed usage of the code; ie, copyright infringement. Either he is in violation of copyright by using code outside of the license, or he is in violation of the license by not GPLing Thesis itself. Either way, the author is in breach of someone's rights, and Thesis, as a work, may only be legally distributed under a GPL license.
I can't say I blame him for putting up a fight, since it's his bread-and-butter and GPLing it would cut his financial knees out from under him, but it's not even a debate at this point whether or not GPL code is included in Thesis. This is a fight that he can't win.
23 comments
[ 4.9 ms ] story [ 49.0 ms ] threadPearson will most likely sue the first person who actually does this (and refuses the Cease-and-Desist that precedes the suit). The courts will then determine whether or not Thesis is indeed GPL, or whether the distribution was in violation of Pearson's intellectual property rights.
Until someone actually does this, the debate will continue - there's enough ambiguity that the issue won't be resolved until ruled upon by the courts. I really doubt Matt/Automattic will push the issue - there's a lot to lose and almost nothing to gain. (Matt said in a previous thread he thinks Thesis' code is "junk" and doesn't want it in core.)
Until Thesis is publicly distributed and legally challenged, the status quo will continue: Thesis will effectively be private code, and Pearson's position will prevail.
IANAL, but the following is my understanding based on the my lack of awareness of anyone licensing code as GPL (even the FSF) who has ever claimed that what you suggest is legal.
Thesis is currently under whatever proprietary license Pearson distributes it under. He probably is legally required to distribute it only under the GPL. There are two obvious ways he can deal with this: stop distributing it or distribute it under the GPL. In the event that he takes the latter path, then people will be able to legally copy/distribute/modify/fork/sell Thesis. However, for now, no one has any license to Thesis' code other than what Pearson has granted them.
The GPL can't force code to be released under the GPL. It can only forbid releasing it under other terms.
If Thesis is to be held to this provision, it actually requires a contract formation, which means that the Thesis owners must have been aware of this GPL provision and must have intended to enter into a contractual relationship and all the other conditions of contract formations must have existed. This is really questionable. The Thesis owners could say that they were never aware of this provision and they never intended to be bound by it.
Of course if they say that, they will not qualify under the GPL, which may mean they are guilty of copyright infringement (if they do use GPLed code). But it is still possible that they can hold this position and accept their copyright liability (or perhaps try to use other arguments to deny their liability under copyright law). And if they do hold this position and if you have copied the Thesis code, then you are yourself guilty of copyright infringement and have no excuse.
So, I would not rely on section 5 of the GPL in this case.
This is all academic discussion, none of this is legal advice, and if you are actually considering using the Thesis software, please consult your own attorney.
As the matter now stands, if it is true that they use GPLed code, that means that whoever distributes Thesis is guilty of copyright infringement, which means that the owner of the original GPLed code can sue Thesis for lots of money. But that does not mean that anyone can copy Thesis.
Put in other words, the viral effect of the GPL is not automatic. If you use GPLed code in your code it does not mean that your code is automatically GPLed. It means that you have a choice to (i) voluntarily GPL your code, (ii) get rid of the GPLed code from your code or (iii) be guilty of copyright infringement and face the consequences.
This is intended as an intellectual discussion of the matter and is not legal advice.
To put it as I understand it, using GPL code doesn't automatically make your code GPL; it places a legal requirement on you to either license your code as GPL, or to not distribute the source or product. If the author doesn't license his software, then nobody else can take and use it, but the author is in violation of copyright due to the unlicensed use of GPL code.
The virality of the GPL is a requirement of the license, not an automatic effect upon using GPL code.
Unfortunately, or fortunately, this doesn't seem to be the way suspected GPL violations are resolved. More frequently there is a community consensus and a public shaming of the responsible company (e.g. http://news.ycombinator.com/item?id=790316). The issue then becomes one of how much negative publicity the company is willing to take.
IOW although "GPL violations" are described in legal terms, could be legally tested, and refer to legal documents, the issue of illegality takes second place to a fuzzier issue of "fairness", which changes from community to community and project to project.
God does justice.
It's almost like laws of physics. Atheists are the stupidest animals. Get smacked all the time and can't figure-out why.
24 20 When he began the accounting, a debtor was brought before him who owed him a huge amount. 25 Since he had no way of paying it back, his master ordered him to be sold, along with his wife, his children, and all his property, in payment of the debt. 26 21 At that, the servant fell down, did him homage, and said, 'Be patient with me, and I will pay you back in full.' 27 Moved with compassion the master of that servant let him go and forgave him the loan. 28 When that servant had left, he found one of his fellow servants who owed him a much smaller amount. 22 He seized him and started to choke him, demanding, 'Pay back what you owe.' 29 Falling to his knees, his fellow servant begged him, 'Be patient with me, and I will pay you back.' 30 But he refused. Instead, he had him put in prison until he paid back the debt. 31 Now when his fellow servants saw what had happened, they were deeply disturbed, and went to their master and reported the whole affair. 32 His master summoned him and said to him, 'You wicked servant! I forgave you your entire debt because you begged me to. 33 Should you not have had pity on your fellow servant, as I had pity on you?' 34 Then in anger his master handed him over to the torturers until he should pay back the whole debt. 23 35 24 So will my heavenly Father do to you, unless each of you forgives his brother from his heart."
Hello! This is how God's world works, ya animal morons.
11 8 Give us today our daily bread; 12 and forgive us our debts, 9 as we forgive our debtors; 13 and do not subject us to the final test, 10 but deliver us from the evil one. 14 11 If you forgive others their transgressions, your heavenly Father will forgive you. 15 But if you do not forgive others, neither will your Father forgive your transgressions.
Why is it you can't sell your hobby software or music?
(I'm not well enough versed in this particular debate to weigh in, but there is an answer to that question, in general, and it hinges on specific details of one's implementation of "creating something.")
19 13 14 Why, then, the law? It was added for transgressions, until the descendant came to whom the promise had been made; it was promulgated by angels at the hand of a mediator. 20 Now there is no mediator when only one party is involved, and God is one. 21 Is the law then opposed to the promises (of God)? Of course not! For if a law had been given that could bring life, then righteousness would in reality come from the law. 22 But scripture confined all things under the power of sin, that through faith in Jesus Christ the promise might be given to those who believe. 23 15 Before faith came, we were held in custody under law, confined for the faith that was to be revealed. 24 Consequently, the law was our disciplinarian 16 for Christ, that we might be justified by faith. 25 But now that faith has come, we are no longer under a disciplinarian. 26 For through faith you are all children of God 17 in Christ Jesus.
In the end, it's the laws of the land that you're in that matters. As far as I know, I don't believe that these arguments on what is a derivative work are anything more than opinion. Settled cases are not equivalent to legal precedent.
The best thing that could happen for everyone involved is that it goes to trial and ends with a judgement, and then all this posturing and pontificating will hopefully come to a merciful end.
I can't say I blame him for putting up a fight, since it's his bread-and-butter and GPLing it would cut his financial knees out from under him, but it's not even a debate at this point whether or not GPL code is included in Thesis. This is a fight that he can't win.