Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview • Hacker News Board

Re: Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview

#111

Post by eavc » Thu, Jul 15, 2010, 6:06 PM UTC

jholloway wrote: post #97

I guess I'm the only one who saw Matt as the obnoxious one in that conversation? He kept putting words in Chris' mouth, playing slap-fight, and making snarky statements like, "Oh, I'll be sure to consult you in the future before I say anything." And the worst was when he said that "literally the whole legal community except for one guy in Florida" agrees with his interpretation of the GPL. That's just ignorant and ir…

Nobody likes going to court. It's expensive and contentious.

Matt made an impressive effort to appeal to law, ethics, the golden rule, economics, majority opinion, and more, and for the vast majority of the interview, he did it politely.

Chris essentially said, "There's no way I'm going to change my mind no matter what because it's my opinion. Why don't you sue me?"

Matt cited IP lawyers and organizations. He also cited that large corporations have wanted to challenge but decided not to.

I found it to be a lopsided argument in the most complete way possible.

Re: Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview

#112

Post by jholloway » Thu, Jul 15, 2010, 6:24 PM UTC

eavc wrote: post #111

jholloway wrote: post #97

I guess I'm the only one who saw Matt as the obnoxious one in that conversation? He kept putting words in Chris' mouth, playing slap-fight, and making snarky statements like, "Oh, I'll be sure to consult you in the future before I say anything." And the worst was when he said that "literally the whole legal community except for one guy in Florida" agrees with his interpretation of the GPL. That's just ignorant and ir…

Nobody likes going to court. It's expensive and contentious. Matt made an impressive effort to appeal to law, ethics, the golden rule, economics, majority opinion, and more, and for the vast majority of the interview, he did it politely. Chris essentially said, "There's no way I'm going to change my mind no matter what because it's my opinion. Why don't you sue me?" Matt cited IP lawyers and organizations. He also ci…

I think the point here is that Chris is one of the first people to stand up and challenge the assertion made by Matt that the GPL automatically applies to all WP themes and plugins. Everyone has just sat there and accepted it up to now. Everyone on HN and elsewhere that is just telling Chris, "Oh, just follow the rules, why are you fighting this?" — why should he follow rules that may as well be arbitrary?

Even if this does go to court and it turns out that Chris is indeed in violation of the GPL, I still applaud him for having the courage to stick to what he believes in. In my opinion, the GPL needs to be tested either way. I think at this point we can all speculate, but no one really knows what will or won't stand up in front of a judge and jury.

Re: Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview

#113

Post by p_alexander » Thu, Jul 15, 2010, 7:01 PM UTC

slantyyz wrote: post #31

pavs wrote: post #27

Earlier quoted context omitted.

So find me a lawyer (more than just a blog post) who have successfully contented against such a case. Did you watch the whole interview? His views has nothing to do with laws, nothing to do with grey areas within the license (from my understanding GPL is very explicit about this); he basically said "I don't wanna do this because, I don't wanna do this." How can you rationalize with that?

Look at the two links provided in one of my other comments pointing to perpetualbeta.com. That guy is an IP lawyer who provided some opinion that is not on the side of Wordpress. EDIT: Not many licenses have been challenged in court, including the GPL. Do you have any cases to cite in favor of GPL?

He isn't an IP lawyer. He's a real-estate foreclosure and bankruptcy lawyer. In his bio at the law firm he co-founded I can't find a mention of any IP-related expertise: http://ricardolaw.com/michael-alex-wasylik/

Not to say that his argument couldn't fly, but I'm not sure I would give it that much credence either.

Re: Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview

#114

Post by Otto42 » Thu, Jul 15, 2010, 7:25 PM UTC

tzs wrote: post #91

Otto42 wrote: post #83

Earlier quoted context omitted.

It does actually go deeper than that, but really that's beside the point. Function calls into the WordPress code is enough. WordPress has a public API... several of them, in fact. A theme doesn't use those, it makes direct calls to internal WP code, and it uses WordPress internal data structures. This is enough to make it a derivative work. From http://www.gnu.org/licenses/old-licenses/gpl-2.0-faq.html#Me... : "Combi…

> Ultimately, it is a matter of interpretation, but all previous interpretation, including those made in courts of law, pretty much universally agree with Matt on this one. There have been no court cases I'm aware of that have dealt with this in the context of a GPL program. There are, however, numerous cases where the code being called was not GPL, and they have pretty much universally ruled that the FSF position is…

In the specific context of a GPL program, no, but there is case law backing up my argument. Micro Star v. Formgen for example, held that a Duke Nukem 3D map file (which contained no code or anything else from the game itself) was a derivative work because it referenced artwork and other materials from the game's files.

Re: Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview

#115

Post by mattw » Thu, Jul 15, 2010, 7:34 PM UTC

jholloway wrote: post #112

eavc wrote: post #111

Earlier quoted context omitted.

Nobody likes going to court. It's expensive and contentious. Matt made an impressive effort to appeal to law, ethics, the golden rule, economics, majority opinion, and more, and for the vast majority of the interview, he did it politely. Chris essentially said, "There's no way I'm going to change my mind no matter what because it's my opinion. Why don't you sue me?" Matt cited IP lawyers and organizations. He also ci…

I think the point here is that Chris is one of the first people to stand up and challenge the assertion made by Matt that the GPL automatically applies to all WP themes and plugins. Everyone has just sat there and accepted it up to now. Everyone on HN and elsewhere that is just telling Chris, "Oh, just follow the rules, why are you fighting this?" — why should he follow rules that may as well be arbitrary? Even if th…

I would have been very interested if this had gone to court to test the GPL purely in the context of themes/plugins, because to me that's the grey area. As it is, I wish (for the sake of both parties) that the matter could be settled without legal intervention. Now that it's been demonstrated that Thesis outright copies and incorporates portions of WP source code, it seems unlikely that a court decision would directly answer the question of plugins, because it wouldn't need to. (I don't think anybody argues that such copying isn't a GPL violation.)

Re: Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview

#116

Post by eavc » Thu, Jul 15, 2010, 7:38 PM UTC

jholloway wrote: post #112

eavc wrote: post #111

Earlier quoted context omitted.

Nobody likes going to court. It's expensive and contentious. Matt made an impressive effort to appeal to law, ethics, the golden rule, economics, majority opinion, and more, and for the vast majority of the interview, he did it politely. Chris essentially said, "There's no way I'm going to change my mind no matter what because it's my opinion. Why don't you sue me?" Matt cited IP lawyers and organizations. He also ci…

I think the point here is that Chris is one of the first people to stand up and challenge the assertion made by Matt that the GPL automatically applies to all WP themes and plugins. Everyone has just sat there and accepted it up to now. Everyone on HN and elsewhere that is just telling Chris, "Oh, just follow the rules, why are you fighting this?" — why should he follow rules that may as well be arbitrary? Even if th…

I would admire Chris for that reason if any of his arguments had been even slightly cogent.

Maybe there's a reason people have accepted it up to now.

Re: Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview

#117

Post by regularfry » Thu, Jul 15, 2010, 7:48 PM UTC

tzs wrote: post #91

Otto42 wrote: post #83

Earlier quoted context omitted.

It does actually go deeper than that, but really that's beside the point. Function calls into the WordPress code is enough. WordPress has a public API... several of them, in fact. A theme doesn't use those, it makes direct calls to internal WP code, and it uses WordPress internal data structures. This is enough to make it a derivative work. From http://www.gnu.org/licenses/old-licenses/gpl-2.0-faq.html#Me... : "Combi…

> Ultimately, it is a matter of interpretation, but all previous interpretation, including those made in courts of law, pretty much universally agree with Matt on this one. There have been no court cases I'm aware of that have dealt with this in the context of a GPL program. There are, however, numerous cases where the code being called was not GPL, and they have pretty much universally ruled that the FSF position is…

You know when you take a stance, and you say "What would it take for me to change my opinion on this?" Yeah, this is one of those situations for me. Have you got a cite?

Re: Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview

#118

Post by tzs » Thu, Jul 15, 2010, 8:01 PM UTC

regularfry wrote: post #117

tzs wrote: post #91

Earlier quoted context omitted.

> Ultimately, it is a matter of interpretation, but all previous interpretation, including those made in courts of law, pretty much universally agree with Matt on this one. There have been no court cases I'm aware of that have dealt with this in the context of a GPL program. There are, however, numerous cases where the code being called was not GPL, and they have pretty much universally ruled that the FSF position is…

You know when you take a stance, and you say "What would it take for me to change my opinion on this?" Yeah, this is one of those situations for me. Have you got a cite?

Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. is relevant, as is Sega v. Accolade.

Re: Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview

#119

Post by tzs » Thu, Jul 15, 2010, 9:06 PM UTC

Otto42 wrote: post #114

tzs wrote: post #91

Earlier quoted context omitted.

> Ultimately, it is a matter of interpretation, but all previous interpretation, including those made in courts of law, pretty much universally agree with Matt on this one. There have been no court cases I'm aware of that have dealt with this in the context of a GPL program. There are, however, numerous cases where the code being called was not GPL, and they have pretty much universally ruled that the FSF position is…

In the specific context of a GPL program, no, but there is case law backing up my argument. Micro Star v. Formgen for example, held that a Duke Nukem 3D map file (which contained no code or anything else from the game itself) was a derivative work because it referenced artwork and other materials from the game's files.

A Kozinski opinion. Those are always entertaining. Most judges write very dry and formal opinions. Kozinski opens with "Duke Nukem routinely vanquishes Octabrain and the Protozoid Slimer. But what about the dreaded Micro Star?"

A key point from the opinion:

"Micro Star further argues that the MAP files are not derivative works because they do not, in fact, incorporate any of D/N-3D's protected expression. In particular, Micro Star makes much of the fact that the N/I MAP files reference the source art library, but do not actually contain any art files themselves. Therefore, it claims, nothing of D/N-3D's is reproduced in the MAP files. In making this argument, Micro Star misconstrues the protected work. The work that Micro Star infringes is the D/N-3D story itself--a beefy commando type named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime. A copyright owner holds the right to create sequels, see Trust Co. Bank v. MGM/UA Entertainment Co., 772 F.2d 740 (11th Cir.1985), and the stories told in the N/I MAP files are surely sequels, telling new (though somewhat repetitive) tales of Duke's fabulous adventures. A book about Duke Nukem would infringe for the same reason, even if it contained no pictures."

They use that same notion, that the MAP file is encoding a D/N story, in dismissing the claim that it is the user making the derivative work, not Micro Star. It doesn't seem to be the artwork per se that's the problem for Micro Star--it's that it is telling a D/N story.

Re: Would WordPress Sue The Maker Of Thesis WordPress Theme? - Mixergy Interview

#120

Post by wingnutart » Thu, Jul 15, 2010, 9:48 PM UTC

freerobby wrote: post #38

pavs wrote: post #7

Earlier quoted context omitted.

Confirmed this guy is obnoxious: http://i.imgur.com/wffx2.png My respect for Matt just jumped ten-fold for being so calm with this guy and I am not even a fan-boy.

Agreed.

Chris was a jerk this entire interview. Over and over again he was ranting and shouting Matt down. Matt was superb throughout; calm, patient, and prepared. He had one blurt-out, while Pearson frantically dug his own grave. Totally agreed.