7 ms·

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 c

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.

ekiru 16y ago
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.
- deleted 16y ago
  [deleted]
- jp_sc 16y ago
  The clause 5 of the GPL v2 says: 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.
  - bad_user 16y ago
    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 ;)
  - hristov 16y ago
    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.
hristov 16y ago
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.
- cheald 16y ago
  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.
  - cschwarm 16y ago
    IIRC, the following article by Pamela Jones of Groklaw discusses the issue: http://lwn.net/Articles/61292/ http://lwn.net/Articles/61292/
wzdd 16y ago
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 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.
- joshkaufman 16y ago
  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.

ekiru 16y ago

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.

deleted 16y ago
[deleted]
jp_sc 16y ago
The clause 5 of the GPL v2 says: 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.
- bad_user 16y ago
  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 ;)
- hristov 16y ago
  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.

hristov 16y ago

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.

cheald 16y ago
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.
- cschwarm 16y ago
  IIRC, the following article by Pamela Jones of Groklaw discusses the issue: http://lwn.net/Articles/61292/ http://lwn.net/Articles/61292/

wzdd 16y ago

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 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.

joshkaufman 16y ago
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.