The proposed term would say that, if a customer decides to make your commercial theme or plugin available on a website for download by others, you may exercise a right to deactivate their access keys (if that’s how you’ve set things up) and to terminate their access to support and updates. I explained why, in my view, this sort of clause is not contrary to the freedoms conferred by the GPL:
After I wrote this, I did a search on the web to see whether I could find other businesses doing something similar to what I’m proposing. Lo and behold, it seems that Red Hat did this a few years ago. See GPL expert gives Red Hat the all-clear.”
Majority consider redistribution of commercial themes or plugins on a public website to be unethical
A majority of those who took the poll – 76 of the 121 people – think the practice of purchasing or otherwise obtaining a commercial theme or plugin and then either reselling it on a public website or giving it away on a public website, is unethical, regardless of whether it’s permissible under the GPL. A further 10 people don’t know whether it’s unethical but don’t like it. The remaining 35 didn’t have a problem with it if the GPL is complied with.
Widespread support for inclusion of proposed term
An overwhelming number of those who took the poll – 101 out of 121 – supported the inclusion of such a clause, as they selected this option:
“Yes, I would support that as I understand the business is trying to protect its investment and it poses no threat to my use of the themes or plugins.”
Of the remainder, 17 did not support the inclusion of such a clause even if the GPL freedoms remained intact, and 3 didn’t know or care.
Views of theme and plugin businesses on the idea of including the suggested clause
Of the 121 people who took the poll, 67 were from a business that develops commercial themes or plugins or were thinking of becoming one. These people were asked some additional questions.
To the extent that one can draw general conclusions from this poll (and admittedly the sample is not exactly huge), they would appear to be that:
- a significant majority of people either think that the practice of purchasing or otherwise obtaining a commercial theme or plugin and then either reselling it on a public website or giving it away on a public website is unethical or they don’t know whether it’s unethical but still don’t like it;
- a significant majority (more than two thirds) of people from businesses that develop commercial themes or plugins (or who are thinking of becoming one) like the idea of the proposed term; and
- a bit over a third of those from businesses that develop commercial themes or plugins or are thinking of becoming one would be concerned about being openly criticised by vocal stakeholders in the WordPress community if they were to include such a term (even if the term doesn’t actually remove any GPL freedom).
Businesses should be able to protect themselves in legitimate ways without fear of attack
In my view, it’s unfortunate that the third of people mentioned in the last bullet point would be concerned about being criticised by vocal stakeholders in the WordPress community if they were to include such a term, because – for reasons already given – in my view such a term would not be contrary to the GPL.
I think it’s undeniable that the development of robust commercial themes and plugins supports rather than detracts from the growth of the WordPress ecosystem. Just look at Automattic’s acquisition of WooCommerce as an example or the power that Gravity Forms brings to WordPress as another. Businesses that depend on and support the WordPress ecosystem should be able to protect their legitimate commercial interests without fear of verbal attack from those who cling to misconceptions of what the GPL does or doesn’t allow.
Bear in mind here, too, that the GPL is not an open source licence created for WordPress. Rather, it is simply the open source licence that governed the use of B2/cafelog when Matt and others forked it to become WordPress. WordPress users don’t have any monopoly over what the GPL does or should mean or allow.
The wording of the proposed term
- explain the GPL licensing of the themes or plugins;
- accommodate the use in themes or plugins of public domain assets (such as images) or assets that have been licensed by another under a Creative Commons licence (such as photos);
- refer customers to a human-readable summary of the GPL for more information;
- contain an explanation of the redistribution that the GPL allows but together with information on the investment that the business has made in developing its themes or plugins and the adverse consequences (for the business, its staff and in some cases their families) that open redistribution could bring;
- explain a customer’s access to support and updates; and
- regulate a customer’s use of its access key, login and right to support and updates.
It is the last item in this list that contains a right for the business to deactivate a customer’s access keys (if that’s how the business has set things up) and to terminate the customer’s access to support and updates if the customer decides to make a purchased commercial theme or plugin available on a website for download by others. The suggested clause (which may need tweaking in certain cases to reflect how a business has set things up) is as follows (I’ve italicised the key part relevant to this discussion):
No legal advice
I hope this helps. Needless to say, I’m not providing legal advice to anyone in suggesting this kind of clause. It is for each business to make its own decision on the inclusion of such a clause, with its own legal advice if required.