GPL, Licensing, Plugins, Terms of use, Themes

Theme and plugin shops – Discouraging public redistribution – User poll

FreeBeer

Context

Last week I sent an email to subscribers on my email list. I hadn’t proposed to publish the content of that email but, given some questions I’ve received in response, I thought it might help to publish it. I also thought it would be helpful and interesting to take a quick poll of people’s views on the reselling of commercial themes and plugins because people’s views on this issue are relevant to the inclusion of the contractual mechanism in theme/plugin shop terms of use that I discuss below. I’ll set out the email then take the poll.

(Please retweet as the more that take this super quick poll the better.)

So, the email

This is what I said:

“I’m in the process of finalising my 10 chapter ebook called A Practical Guide to WordPress and the GPL. The ebook will be offered in a range of packages, from just the ebook through to a package that will offer the ebook, an audio book and a terms of use builder for WordPress theme and plugin businesses.

In working on the terms of use builder yesterday [now last week], I had an idea as to a means by which theme and plugin shops might seek to discourage customers from making a theme or plugin available on a website for download by others (whether for free or a charge), even when the theme or plugin is 100% GPL-licensed. As you’ll know, this sort of behaviour hits legitimate businesses in the pocket and can threaten their sustainability. I thought some of you might like to know about the idea now. Note that I’m only talking here about widespread, open/public redistribution of commercial themes or plugins. [In other words, this would not affect your ability to use a theme or plugin on as many of your own or your clients’ sites, for example, as you wish.]

As you’ll know, the sale of a commercial theme or plugin usually entails access to the theme or plugin for download as well as a right to support and updates for a defined period, usually 12 months. It seems to me that some ‘public redistributors’ leverage the fact that they, as purchasers, can get access to support and updates. In other words, they use this access to seek support relevant to ‘their customers’ and/or they use it to get access to updates which they then release for download on their own sites.

Now, this sort of activity is generally permitted by the GPL, as long as they do it in the right sort of way and don’t breach any trademark rights or relevant laws. This might make you think that this kind of behaviour can’t be controlled contractually. But I think it can, at least to some extent.

How? Well, you include a clause in your terms of use which says 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.

Is this contrary to the rights they have under the GPL? I think not. This approach doesn’t stop them from distributing the theme or plugin, as they originally obtained it, on a website. But it does say this to them: “if you decide to exercise your GPL rights in that way, as you’re entitled to do under the GPL, you run the risk of losing your contractual right to support and updates under these separate terms of use”. This is a commercially-oriented mechanism that is distinct from, and doesn’t prevent the exercise of, one’s freedoms under the GPL. It does say “you can’t have it both ways, folks”, but the GPL rights are left intact. Only the separate, commercial support arrangements are affected. There may be those who would cry foul, but – legally – I don’t think their cries would be well-founded.

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.

Theme and plugin shops need to be aware that, if they cut off access and support in practice but in a situation where their terms of use don’t regulate public redistribution in the way I’ve described or don’t reserve rights to withdraw support for any reason, they may face allegations of breach of contract if they remove a redistributing customer’s access.

The terms of use that my builder will create will (if a business wishes) contain a term that addresses this situation. If you’ve any thoughts on it, please feel free to fire me a message through my contact form at WP and Legal Stuff or email me … . This email is only being sent to my email list. For that reason, you won’t be able to leave a comment on the site itself. [No longer the case obviously. Instead of emailing me, please complete the poll below.]

All the best.

Richard

P.S. I appreciate that a mere legal term relating to support won’t stop people who are hell-bent on redistributing GPL’d themes or plugins on a publicly accessible website from doing so. But it may stop a subset of people who actually care about their access to support and updates. The inclusion of such a clause might also make would-be redistributors wonder whether that kind of redistribution is ethical.”

Now for the poll

The poll has now closed. Thanks to all those who spent the time taking the poll. Much appreciated.

 

(Thanks to The Art Gallery of Knoxville for the “FREE BEER 3.3 Ready to Drink!” image https://www.flickr.com/photos/16038409@N02/2327155978/, licensed under a Creative Commons Attribution-ShareAlike 2.0 Generic licence https://creativecommons.org/licenses/by-sa/2.0/)