Background

Back on 4 August of this year, I published a post called Theme and plugin shops – Discouraging public redistribution – User poll.  The poll that was included in the post sought people’s views on the reselling of commercial themes and plugins. It did this because people’s views on this issue are relevant to the inclusion of a contractual mechanism I’d proposed for theme/plugin shop terms of use. The contractual mechanism I’d proposed would seek to discourage purchasers of a commercial theme or plugin from making the 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.

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:

“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.”

Poll results

I closed the poll today. In the intervening period, 121 people had taken the poll. Here’s a graphical depiction of the results (thanks to the wonders of Gravity Forms and its Polls Add-On):

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

Each person that took the poll was asked to assume he or she is a purchaser of commercial themes or plugins. Each person was then asked whether he or she would support a commercial theme or plugin business including the kind of term I’ve mentioned in its terms of use. (As a reminder, the term gives the business the power to terminate support and access to updates if the customer were to openly redistribute the commercial theme or plugin on a public website, either for a price or no charge.)

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.

The first additional question they were asked was whether they like the idea of including the suggested clause in their terms of use (in answering this, they were told to assume they wouldn’t be criticised for including the term). 47 of the 67 said they like the idea of the proposed term. 13 didn’t like the idea of this term and the remaining 7 didn’t know or didn’t care.

The second additional question they were asked, on the assumption that they would include the proposed term in their terms of use, was whether they’d be concerned that vocal stakeholders in the WordPress community might openly criticise them for not complying with the ‘spirit’ of the GPL (even if the term doesn’t actually remove any GPL freedom). 26 of the 67 answered yes (they would be or are concerned), 17 answered no (not concerned) and the remaining 4 didn’t know or care.

Comments

General conclusions

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;
• there is widespread support for the inclusion of a term in theme and plugin shops’ terms of use that would entitle the theme or plugin shop to deactivate a customer’s access key (if that’s how they’ve set things up) and to terminate their access to support and updates;
• 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

The WordPress theme/plugin shop terms of use that you can build online if you purchase the business package of A Practical Guide to WordPress and the GPL will provide you with terms that, among other things:

• 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.

Happy developing!