Copyright, GPL, Licensing, Plugins, Themes
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Theme and plugin shop terms of use versus GPL freedoms

Introduction

For a while now I’ve wanted to address an issue that niggles away at me every time I see it. I touched on the subject slightly at the end of Readers ask: About reselling commercial plugins (updated) but I wanted to explore it a bit more in its own post.

There are so many theme and plugin shops out there now that you probably couldn’t count them all with even 20 hands. Perhaps not surprisingly, this multiplicity of WordPress businesses has resulted in a wide range of terms of use and licensing statements in relation to the themes and plugins they sell.

Of course, what these businesses say in their terms is constrained – or should be constrained – by the requirements of the GPL, at least in situations where they’ve created derivative works of WordPress or other GPL’d code or where they’ve otherwise chosen to apply the GPL to their themes or plugins.

In this post, I’m going to focus on theme and plugin shops that have expressly applied – or purport to have expressly applied – the GPL 100% to their themes or plugins. I’m going to discuss four kinds businesses:

  • businesses that clearly understand the GPL and get their licensing statements right;
  • businesses whose licensing statements are difficult to understand;
  • businesses that either don’t understand the GPL or do understand it but cloud or misrepresent (either innocently or deliberately) the freedoms that the GPL confers on purchasers of their themes or plugins; and
  • businesses who just get the GPL plain and unambiguously wrong.

I’ll also comment on businesses whose terms purport to reserve a right to change the licensing of their themes at any time. Note that almost all of the theme shops I’ve reviewed are commercial theme providers with a listing on WordPress.org.

Before I get into things, I should note that I’m not talking in this post about access to support and upgrades being restricted to paying customers. That’s all perfectly legitimate under the GPL. What I’m focusing on here is what businesses’ terms of use or pricing pages say in relation to the GPL and what a customer is entitled to do with a theme or plugin it purchases when that theme or plugin is GPL-licensed.

Businesses that get it right

There are many businesses whose terms of use are clear in their GPL licensing and there are generally two variants of the terms used by such businesses. Under the first variant, the businesses keep things simple and say something like: “Our products are licensed under the GPL” or “[name of theme/plugin] is licensed under the GNU general public license” (e.g., WooThemes, Rocket Genius/Gravity Forms). And within this variant there are those who inject some humanity into their terms. For example, Array themes says this:

“All digital goods provided by Array are released under the GNU Public License version 2.0. Go create something beautiful and share it with us.”

Nice. Even within their minimalist terms they want to delight their customers.

Businesses that opt for the second variant go a bit further and say something like this:

“All [our] themes are licensed under the GPLv2.You can use our themes for personal and commercial projects and for as many websites as you like.”

Many businesses’ terms are along these lines. In my view, they provide helpful guidance to purchasers.

Businesses whose terms are difficult to understand

I’ve come across one theme shop that says, without more, that its ‘theme code’ is licensed under the GPL. But what does ‘theme code’ actually mean? Would theme code include non-code assets within a theme’s zip file? Arguably not. This sort of licensing actually looks more like a split licence to me than full GPL. The intended meaning is unclear.

Businesses whose terms cloud or misrepresent the GPL freedoms

Some businesses who say their themes are GPL-licensed offer basic versions of themes or plugins for free or a low cost as well as ‘premium’ versions of the themes or plugins which have more functionality. That’s all fine. What’s not so fine is when they draw a distinction – either expressly or implicitly – between what can be done with a basic or low cost version as against what can be done with the premium version. I’m not referring to the different levels of functionality. Rather, I’m referring to the number of sites on which the theme or plugin can be used. For example, some theme shops say very little or nothing about what can be done with the basic or low cost version but then say, for the premium version, that it can be ‘used on unlimited websites’ or that purchasing a premium version comes with ‘the right to use the theme on an unlimited number of websites’.

To my mind, this may prompt some users to infer that the basic version cannot be used on unlimited websites. Logically, of course, the fact that ‘unlimited websites’ is stated for the premium version whilst nothing is said for the basic or low cost version doesn’t necessarily mean that the basic or low cost version can only be used on a small number of websites or a single website. However, drawing the distinction I’ve mentioned isn’t helpful and does nothing to explain to users of the basic or low cost version that, under the GPL, they too can use their version on unlimited websites. It seems that some theme or plugin businesses draw this distinction to encourage more customers to buy the premium version but I’d suggest that, in doing so, they’re not being as transparent as one might expect in relation to what the GPL allows.

Another and perhaps worse variant of this is where a theme shop says that, if you buy one of its GPL’d themes, you can use it ‘on any websites you own’. To my mind this is misleading. You do not have to own a website to use the GPL’d theme for that website.  You can use it on any website, regardless of whether you own it. Now, I’m not suggesting that this excellent theme shop that is listed on wordpress.org is intending to mislead anyone, but the wording is misleading as it implies that one cannot use the theme on a client’s site. This is particularly so when the terms go on to say that, if you purchase a developer package, you can use the theme on an unlimited number of client sites.

Businesses whose terms get the GPL plain wrong

Sometimes businesses’ terms of use just get things plain wrong. For example, one business that purports to license its themes under the GPL says that, with a single purchase, you can use the purchased theme ‘for multiple sites of your own’ but you can’t redistribute or resell it to any of your customers or clients. This just isn’t right. If I obtain a 100% GPL-licensed theme, I can use it for my own sites, I can use it for client sites, I can give it to my friends, I can give it to clients, I can sell it to clients and I can otherwise redistribute it as I please, as long as I comply with the GPL’s terms.

Another business that licenses its themes under the GPL (and it makes it clear that the GPL applies to the PHP, javascript, CSS and images) says its customers are not permitted to reproduce, duplicate, copy, sell, trade or resell its themes. Again, this is wrong. A recipient of a fully GPL’d theme is actually entitled to do all these things.

Purported rights to alter licence terms

Sometimes a business will include a term in its terms of use by which it “retains the right to change… the licensing of … our themes at any time”. On one interpretation, this is contrary to the generally accepted proposition that the GPL is irrevocable (GPL version 3 is much clearer than version 2 on this issue but even version 2 is generally regarded as being irrevocable). A licensor of all the copyright in a work that it GPL licenses may stop distributing the work under that licence and/or license it under a different licence to others, but it is generally considered that people who already have the GPL’d software can continue to use it and that a purported revocation of those people’s rights under the GPL would be ineffective. Similarly, where a GPL’d work consists of a chain of copyright components, all successively licensed by various people under the GPL, one licensor cannot take the whole and purport to apply a more restrictive licence as it won’t have the right to do so from the upstream licensors.

The short point is that a theme shop that purports to retain the right to change the licensing of its themes, when those themes have already been licensed under the GPL, should not be read as restricting those who already have the themes from exercising the freedoms that the GPL gives them.

Conclusions

Theme and plugin shops deploy a range of approaches as to how they describe the GPL-licensing of their products, from good to not-so-good to bad. I’m not suggesting that all theme and plugin shops whose terms fall in the not-so-good or bad camps are deliberately misleading customers. I suspect the reality is that some are doing this, for economic reasons, while others or their lawyers have either misunderstood the GPL or used language which just isn’t quite right, if not quite wrong.

(Thanks to Japanexperterna.se for the ‘See no evil speak no evil hear no evil‘ photo, licensed under a Creative Commons Attribution-ShareAlike 2.0 Generic licence.)

15 Comments

  1. Thank you for this article. It is a subject that seems to cause no end of conflict and to have someone sharing such valuable insights is comforting.

    I do have one question though and that is on the use of a licence being restricted to numbers of Websites. I note that the Woo licence as listed on their website seems to indicate that the licence is for updates and support. So does this mean that the software itself is freely usable on any website but that you will only get support and automatic updates for up to the number of sites you have registered for?

    If so does this mean that if I bought a single license for say the Woo Bookings Extension http://www.woothemes.com/products/woocommerce-bookings/ then I could use it on as many sites as I wanted and by extension I could let other people use it – which they would if they were clients. I suppose that if this is the case then there is nothing to stop the software being distributed infinitely?

    • Richard Best says

      Hi Andrew and thanks for your comments. The answer to your first question is yes. Unless a more restrictive licensing statement were provided in the context of a particular WooCommerce extension (and I’ve not seen one), the GPL applies 100% (as per WooThemes’ terms and conditions) and you can use the software on as many websites as you like. You could also, for example, give it away to a friend if you wanted to. However, your friend wouldn’t be able to access updates and support from WooThemes itself. In the case of WooCommerce extensions, for example, WooThemes makes it clear that “[e]ach installation of the plugin will require a licence key in order for you to receive updates and support”.

      The answer to your second question is also yes, but the fact that your clients, for example, couldn’t get direct access from WooThemes to updates and support (unless their use of the plugin had their own support licence/keys) can – depending on the circumstances – operate as a significant practical constraint.

      There is then the big issue of legality versus what some in the WordPress community consider to be ethical/unethical behaviour. I won’t wade into that one here… .

      All the best
      Richard

  2. The quality shops I have patronized that fall into the “cloud or misrepresent” category do not actually offer any “terms” — it is just vague and virtually unenforceable marketing language clearly intended to deceive without literally saying anything that actually violates the GPL. In fact they do not mention the GPL anywhere in their TOS or address what you can or cannot do beyond the scope of your member account access on their website, which can be revoked for any reason or none. This has always bothered me because it indicates the theme/plugin vendor believes many of their customers do not understand or care about the GPL and should not be educated about it because they will not behave in a mutually beneficial way.

    I understand I am buying convenient access to updates, support (if I need it), and helping the vendor stay in business, which is in my interest for them to do. Marketing that is explicitly based on this type of ethic would be wonderfully community-minded, educational, honest — and refreshingly ethical. But it seems like most shops, even highly admired ones, are afraid to do this.

    I do feel somewhat ripped off when I pay $100 more for “developer” status that supposedly “allows” me to use a theme/plugin for clients as opposed to sites I own. (IIRC, this replaced an earlier policy based on limitation to a certain number of sites.) I choose to see this more as a donation to support a company and relationship I want to see go on existing for a long time. But the vague implied threat of being cut off for doing things the GPL allows introduces distrust and the impression of a shakedown.

    Why not ask people who use your product commercially on numerous client sites to look at their net profits and join the developer tier — which might have some nice bonuses? (Use carrots rather than sticks, but feel free to drop the extreme free riders and abusers.) Why not recognize customers who are in the mutually beneficial relationship you want to have and make this key to marketing/educating your market?

    • Richard Best says

      Thanks for the great comments Dan. I agree that transparency around what the GPL allows coupled with the kind of marketing you suggest would be refreshing.

  3. John says

    Thanks again for this very informative post!

    I also came across those guys stating that we have to “own” the sites we use their themes for and I was quite confused. As far as I’m concerned, the only result so far is that I stayed away from buying anything from them…

    Thanks to the recent wpdrama, I tried to better understand how GPL works and I have to say, the more I read about it the more I get confused!

    I learn there is Open Source, Apache, GPL and even more licences out there and that none of them means the same thing. I even followed the links Matt provided here http://wptavern.com/mullenweg-and-pearson-square-off-on-patents-gpl-and-trademarks#comment-70931 and tried to understand what means the sentence that states that “To understand the concept (of GPL), you should think of “free” as in “free speech,” not as in “free beer”.” Really?

    After reading further, it seems it is rather free beer than free speech. I see here above that you say that GPL allows to “reproduce, duplicate, copy, sell, trade or resell” any product, plugin or theme that comes with a GPL licence. Isn’t it “free beer”?

    What can I really do with a product that sells or is given away with a GPL licence? Can I really buy a commercial plugin for instance and sell it cheaper at my own site, with a different name, as long as I still keep it under the GPL licence? This is what I understand and I’m certainly not the only one.

    Why is there so much literature about those licences and nowhere a summary of what people can or can’t do with them?

    For instance, when you go to Envato, you learn that with their standard licence you may “Use, by you or one client, in a single end product which end users are not charged for. The total price includes the item price and a buyer fee.” Is this GPL or something else again? I tried, but still can’t understand what is an “end product which end users are not charged for”. When I design a website for a client, I’ll charge for it. Is this the end product?

    In fact, I don’t expect you to answer all those questions. I just wanted to highlight the total confusion that prevails around those questions and the lack of informative guidelines, with down to earth examples, for users – mainly WP designers and simple end WP users. I, personally, buy WP themes or plugins only to companies that clearly state, in summary, something like that “with our licence you may use our products as long as you want, for as many clients as you want; you pay for our support and updates for a given period of time (monthly, yearly or lifetime)” – and just ignore any others that provide distorted statements, such as the ones that say that I have to own the site for which I use their products.

    The examples you provide in your own post here proves that even commercial entities selling WP themes and plugins didn’t yet get it, so you can imagine what happens in end users brain…

    • Richard Best says

      Thanks for your comments John. I’ll be releasing an ebook shortly that contains almost all my thinking to date on WordPress and the GPL. Stay tuned.

      • John says

        Thanks for this but still: since your reply, I can’t find any answer to my questions. Your latest poll is more confusing for me as it shows that nothing is really clear for anybody…

        I mean what is this complete nonsense that states that GPL is more like free speech than free beer? That doesn’t mean anything to me. If you create a theme/plugin and you distribute it for free, I really can’t see where the free speech is. It’s just free stuff. Period.

        And, again: I’m I able to sell this theme/plugin you distributed for free?

        Those down to earth questions are never clearly answered and we rather always swim in mud waters.

        • Richard Best says

          Hi John

          I take your point about the free speech / free beer distinction. My use of a “free beer” image in the poll post was a bit of a pi– take on that distinction.

          To answer your question: if you buy a 100% GPL’d theme or plugin, yes, you can distribute it, for free or for a charge. You just need to be careful how you go about it. You need to be careful not to do anything that might breach the developer’s trademarks (if any), not suggest any association with the developer and not mislead your customers. I hope that is clear enough.

          All the best.

          • John says

            Thanks Richard for this.
            Of course, I have absolutely no intention in distributing a theme or plugin someone else created, but I just wanted to point out that the literature around GPL is more than confusing and really EXTREMELY BADLY drafted.

            In that sense I fully agree with Christian Nelson in this following reply below.
            The GPL guys should hire you for drafting something that would make some sense!

  4. Christian Nelson says

    I’m not a developer, although I am a writer, an editor, and a designer – so I’ve been interested in copyright and licensing for many years.

    Even though your poll questions (that you put up recently) are interesting, I’m not going to answer them. Why? Because even though I’ve read (tried to read?) licensing agreements many times over several years, and even though I’ve read your interpretations of GPL, etc., I still don’t think I know enough to answer these questions intelligently.

    Every time I use something that a developer offers “for free” or when I purchase paid versions (as I often do), I always feel a gnawing worry that I may not totally understand the limits of the GPL or other agreement.

    It’s an uncomfortable feeling, whether it relates to using stock photos, plugins, themes, or whatever.

    None of these licenses or contracts are simple. Even the ones that claim to be simple are *not* simple. Every GPL or contract contains confusing and/or ambiguous language.

    Yes, there are people out there who want to game the system. They want to steal the work of writers, photographers, designers, and developers. And those people are despicable.

    But I think there are many others out there who are violating the terms of GPLs and contracts unknowingly. These people are either unaware that these licenses even exist, or they have tried to understand the terms, got confused, and just said “To hell with it,” and just went off and did whatever they wanted with the intellectual property they had just purchased or gotten “for free.”

    I am 100 percent *for* the rights of the creators of software, artwork, writing, etc. But the GPLs are too complicated. The wording often brings up more questions than the wording answers.

    Even your own well-meaning “explanations” are ambiguous and unclear. Of course you understand what you’re writing, but many of us don’t understand everything you’re saying, and are still confused.

    Is there an answer for all this?

    I don’t know.

    It would be great (although probably unwieldy and unworkable) if the GPL could include all the lawyer-written text that no one can understand (as it is now), but *also* could include some real-life examples of how the plugin or theme or whatever might be used.

    That won’t ever happen in a contract or GPL, I suppose, but maybe someone who really understand the existing language and also understands the real-world application of these plugins, themes, etc. could write something to clarify these issues.

    Maybe something like:
    John Doe just bought a theme from GreatAmericaThemes. John is a developer and he wants to…blah blah blah. Can he legally do these things? (And then you would make up a scenario that would apply to the various ways a developer might want to use this particular theme on his own site and on sites he builds for his customers, etc. But rather than using ten-dollar words, and long, winding sentences, you could write this up in plain English that the average person could understand.)

    If you have any interest in doing this, I would be happy to help by writing up some scenarios…just to get things started.

    It’s great the way you share your legal knowledge with us…I really appreciate what you’re doing…but I think many of us are still confused, and a bit of simplifying could help a lot.

    This would clear things up for those of us who use the plugins, themes, etc., and would very likely make life better for the developers who work so hard to create these great tools, and who deserve to not be cheated (knowingly or unknowingly) out of the profits they deserve.

    • Richard Best says

      Hi and thanks for your detailed comments Christian. I take your point that many online contracts and licences are challenging, in some cases to say the least.

      Many aspects of the GPL are clear but other aspects are vague and ambiguous, so much so that not only did the GNU/Free Software Foundation folk write a version 3 (WordPress is under version 2) but others have written what they consider to be a simpler licence that is, in essence, the GPL but is easier to understand.

      In terms of real life examples, have you taken a look at this post: Understanding the GPL licensing of WordPress? If you scroll down a bit, you’ll see it contains a range of common GPL-related WordPress questions and short answers to them. I hope it helps. The post also seeks to summarise the GPL in more plain English terms.

      Other posts explore more nuanced issues in more detail. I know a couple of them can be a bit complex (e.g., the post on derivative works). I’ve tried to be as clear as I can but the subject-matter is not always straight-forward and in some areas the law is simply not clear which means definitive answers cannot always be given. In edge cases involving derivative works that’s annoying (to put it mildly) but unfortunately it’s the way it is.

      If you have any specific questions you’d like a punchy answer to, please let me know and I’ll try to help out.

      • Christian Nelson says

        Richard…I’m really looking forward to reading your book.

  5. John says

    Thanks for this link to your previous post about GPL that I missed for some reason before. Indeed, there are already some answers in there.

  6. This has turned into a VERY important topic for us since we are just about to release commercially based plugins.

    From my reading of your site and of other comments on GPL there is no such thing a GPL Commercial Plugin, there cannot be since the copyright is such that there is an unrestricted licence to distribute and modify with this right being left in place for any derivatives. As it seems (although not I understand tested) that all WordPress plugins are derivatives and therefore must be GPL by definition it is impossible to sell a WordPress plugin legally.

    If this is correct then surely the easiest way to avoid all this confusion and bickering would be to ditch the use of Commercial Plugin when applied to WordPress or any other GPL derived items. Instead is it not more correct to say Commercial Services for Plugins.

    So what I am buying/selling and therefore contractually entitled to/obliged to give is the support service under whatever terms that is issued, e.g. limited to issues on x sites, for y developers or even z number of support tickets, with or without easy access to the plugin and its updates for whatever period and so on.

    Should a purchaser breach the terms of the contract then I have no problem with the supplier terminating service and suing for breach of contract. In fact surely this is the true ethics of it all in that anyone who has entered the WordPress ecosystem must do it on these terms. If there are folks out there who want to cry foul at this then so be it. There are folks who will cry foul whatever.

    As Ricky Gervais said just because you are offended doesn’t mean your right https://twitter.com/rickygervais/status/388984600112156672

    Perhaps the appropriate question is “Under the GPL system is it profitable to build plugins and only charge for support services?”.

    • Richard Best says

      Hi Andrew and thanks for your comments.

      I wouldn’t use the term “GPL commercial plugin”. Sometimes I use terms like “a GPL’d commercial theme or plugin”. All I mean when using terms like that is that a theme or plugin which been developed by a business for profit has been licensed under the GPL.

      As you say, if a theme or plugin is 100% GPL licensed, others that obtain access to it are permitted to distribute it and modify it. The GPL isn’t actually ‘left in place’ for derivative works. Rather, anyone that creates a derivative work is required to apply the GPL to their derivative work if they distribute it.

      It is not clear that all plugins would be derivative works of WordPress (or another GPL’d work) and therefore need to be GPL licensed when distributed. It’s not clear because there is no universally accepted legal test in this context as to when a plugin or module that supplements a CMS will be a derivative work. I suspect it is likely that some will be while others won’t be. There used to be a statement on WordPress.org that recognised this uncertainty but I couldn’t find it just now. In any event, you can’t get a plugin (e.g., a free version) into the WordPress.org repository without it being GPL licensed and, as you’ll know, if there’s a community norm around licensing it is that both themes and plugins ‘ought to be’ GPL licensed regardless of the legal position in each particular case.

      I don’t think it’s wrong or confusing to use terms like “commercial theme” or “commercial plugin”, at least not if all one means is that to get access to the theme or plugin you have to pay a price. That’s all legit.

      You’re entitled under the GPL to charge a fee for transferring a GPL’d product such as a theme or plugin. The GPL expressly recognises that. At the same time, I agree with the essence of your comments that what one is paying for is access, not only to the product, but to support and updates. Again, that’s all legit. This is how I’ve pitched it in the terms of use that my WordPress shop terms of use builder can create (which will be available shortly when I release my ebook on A Practical Guide to WordPress and the GPL):

      Copyright

      Unless we say otherwise for a particular Product or part of the Site, new copyright in our Products and in other material on the Site is owned by us or our licensors. When you purchase one of our Products, you are purchasing the right to access and download the Product together with the right to access support, and any updates we may release, for a period of 12 months (on the terms described below). You are not obtaining ownership of the intellectual property rights in the Product. Your licensing rights are specified below. [The next clause then talks about GPL licensing]”

      As to your final question, when one recognises that you’re charging for access to the product as well as to support and updates, I think the answer can clearly be yes. Just look at the likes of Gravity Forms, WooCommerce (with all its extensions), Easy Digital Downloads (with all its extensions), etc etc. These businesses are successful, in my view, not only because they build excellent products but because they provide access to excellent support and updates and because they market their products well and have managed to create respected brands. There is no denying that those who take these products and openly resell or give them away pose a risk to these businesses, but I think the majority if not large majority of users will purchase from the true developers. If they don’t, they will likely soon learn that they can’t get access to support and updates. In some cases, they may even receive products that have had link bait injected into them, or worse.

      Hope this helps Andrew. All the best.

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