The GPL FAQ Has No Legal Validity! Get That And Stop Rubbing It In My Face!

Dec 5, 2010   //   by Hackadelic   //   Blog  //  4 Comments

365.274In virtually every debate about whether or not WordPress themes and plugins need to be GPL or not, sooner or later the proponents of the idea inevitably come up with the GPL FAQ. This is as annoying as it is ridiculous. The GPL FAQ has no legal validity! Period!

Once more I feel a strong urge to oppose such BS, and this time I will borrow the words of somebody much firmer in copyright law than me. 

Import this:

The GPL FAQ is not the GPL. The opinions of the authors of the FAQ may illustrate what could be fair use, but ultimately fair use is a legal determination, made by judges and juries, not FAQ writers.

The FAQ has no legal effect – only the license does, and the license expressly invokes copyright law.

The GPL derives from copyright law. Without copyright law, there is no legal basis whatsoever for the GPL, and no enforcement mechanism. To the extent that any “definitions” in the GPL contradict definitions in the law, the law will prevail.

The GPL has nothing to say regarding the “use” of WordPress – execution of the code is not a protected right under copyright. The GPL applies only to modification, distribution, and other exclusive rights under copyright law.

There are plenty of reasons to disagree with the expansive GPL view […]. First and foremost, it’s just not enough to say that themes running on top of, and using function calls from, a piece of software are “derivative” of that software. If that were the case, then any software application would be a derivative work of the operating system it runs on – such as Windows, Linux, or OS X – which in turn would be a derivative work of the software hard-coded into the chips running the computer. For that is the way all software works, down to the bare iron – it sits on top of, and makes function calls to, the software layer beneath it, until to get down to the silicon pathways in the chip itself. No software could run without those lower layers, and nothing is truly independent of them. But “dependent” and “derivative” are not the same thing.

[It is] copyright law [that] controls the definition of what constitutes a “derivative work” (and therefore, a covered work); and, the GPL expressly invokes the standard embraced by the Galoob court, namely, that some part of the original work must be contained in another work in order for that work to be considered derivative.

But most importantly, WP’s (or anybody else’s) ongoing attempts to expand the GPL beyond it’s legal reach are nothing more than an abuse of the license to assert their own interests as software vendors against the interests of other software vendors. As such, it is a betrayal against the very spirit of the GPL, which was designed to limit the ties that software vendors imposed on end user and ensure the rights of those end users. It was not designed as one more tool for software vendors to control the market. Let’s not pervert the GPL’s intention and turn it into a monopoly instrument.1

Some more borrowed words:

I simply believe that the disinformation being spread about the impact of the GPL harms both open and non-open software communities – the former, because its overreaching will backfire; the latter because it chills contributions from those who may not want to release their code into the wild.

It’s great to talk about open source software as “free” and speak of the GPL – as Matt does – as a “Bill of Rights” – but what Matt seeks to do would reduce freedom by expanding copyright restrictions to non-derivative – and therefore legally independent – works . At its core, the GPL is simply a fancy way of controlling other people’s work through the imposition of copyright restrictions. Those who seek to extend the GPL beyond the bounds allowed by copyright law, do not promote freedom but instead take freedom away.

Yes, I may be pissed off by the debates and the false arguments used, but I’m a strong proponent of the GPL spirit, and the idea of freedom in general. What bothers me most is when people abuse their (undisputed) authority in one field (WP development), to promote pseudo-truths and spread misbelief in a completely different field (copyright law) – a field clearly outside their competence.2 But let’s face it: What they preach is just that – Opinions. Well, the problem with opinions is, they are like assholes – everybody has one. Which leads me to my final quote:

And that’s why we’ll be having this debate next year, and the year after – because the authors of the allegedly infringed works would rather talk then test their theories in court…. at least, so far.

Nothing more to add.

  1. Alas, that’s the way it often goes. Sooner or later every good ideas gets perverted into its opposite for the sake of gaining money, power, influence, market share… whatever. []
  2. I’m not sure what upsets me more: The fact that people  preach stuff they know sh*t about, or the fact that too many others believe it. Anyhow, the net effect is that a lot of damaging misbelief is created. []


  • Sorry Hackadelic, there is no exclusive right to distribute a derivative
    work of distinct authors. The Copyright Act of 1976 left the distribution
    of derivative works to contract law. The GPL’s requirement concerning the
    distribution of derivative works “as a whole” is a matter of contract law.
    This is a result of 17 USC 103(b). The GPL requires a contractual agreement before the distribution of derivative works.

    • I never claimed, or talked about, any form of “exclusive right” to do anything, let alone “distributing derivative work of distinct authors”. I really don’t know where you were heading to, or why.

      Anyway, this whole discussion only dilutes the post’s main point, which is that it’s the law defines what derivative work is, not the GPL (let alone their FAQ). That definition clarifies why plugins and themes are dependent, but not necessarily derived work, at least in relation to WP code.

      Now, if you want to have more and truly in-depth discussion, you may want to follow the links to the quote sources and argue with their author.

  • The statement “The GPL derives from copyright law. Without copyright law, there is no legal basis whatsoever for the GPL, and no enforcement mechanism” is simply a half truth.

    The legal application of copyright law is always through contract interpretation when a license is involved. Since 1927 when the United States Supreme Court declared a license was in fact a contract, no federal court has ever ruled to the contrary, see De Forest Radio Tel. Co. v. United States, 273 U.S. 236 (1927).

    The United States Court of Appeals for the Seventh Circuit summarized this fact concisely:

    “Although the United States Copyright Act, 17 U.S.C. 101-
    1332, grants exclusive jurisdiction for infringement claims to the federal courts, those courts construe copyrights as contracts and turn to the relevant state law to interpret them.”; Automation by Design, Inc. v. Raybestos Products Co., 463 F.3d 749, 7th Cir. (2006).

    • D. Wallace, on the contrary. That statement is 100% true. Law is the only legal basis to enforce anything. Any other enforcement mechanism would be, per definition, outside the law and thus illegal. And the law that applies to copyright is copyright law. It’s a 100% correct statement, so much so that it’s even trivial.

      What you probably meant to say though is that copyright law itself strongly takes the contractual nature of a license agreement into account.

      However, that is irrelevant in this particular case. If you would have read the source of that quote in full (link), you could have noticed that the statement applies to the definition of “derived work” specifically. And if you read the GPL, you’d see that it invokes copyright law expressly, and it is copyright law that defines “derivative works”.

I have come here to chew bubblegum and kick ass...
and I'm all out of bubblegum.
-- Nada in They Live