The story

Perhaps not surprisingly, Matt’s recent post “The Wix Mobile App, a WordPress Joint” caught my eye. Indeed, it caught both eyes. I’ve read through his post and I’ve read the Wix CEO Avishai Abrahami’s prompt reply, “Dear Matt Mullenweg: an open letter from Wix.com’s CEO Avishai Abrahami” as well as a Wix engineer’s reply in “How I Found Myself Accused of Stealing Code from WordPress”.

The key points, it seems to me, are these:

• Matt has said that “Wix copied WordPress without attribution, credit, or following the license. The custom icons, the class names, even the bugs. You can see the forked repositories on GitHub complete with original commits from Alex and Maxime, two developers on Automattic’s mobile team.”

• Matt has also said:

“This explicitly contravenes the GPL, which requires attribution and a corresponding GPL license on whatever you release publicly built on top of GPL code. The GPL is what has allowed WordPress to flourish, and that let us create this code. Your app’s editor is built with stolen code, so your whole app is now in violation of the license.”

• In his reply, Mr Abrahami says:

“Next you talk about the Wix App being stolen from WordPress. There are more than 3 million lines of code in the Wix application, notably the hotels/blogs/chat/ecommerce/scheduling/booking is all our code.

Yes, we did use the WordPress open source library for a minor part of the application (that is the concept of open source right?), and everything we improved there or modified, we submitted back as open source, see here in this link – you should check it out, pretty cool way of using it on mobile native, I really think you guys can use it with your app (and it is open source, so you are welcome to use it for free). And, by the way, the part that we used was in fact developed by another and modified by you.”

Main issues

There is, it seems to me, a range of issues. I think the main ones (but not the only ones) are these:

1. Has Wix published on or in relation to its mobile app an appropriate copyright notice and disclaimer of warranty, kept intact all the notices that refer to the GPL and to the absence of any warranty, and included a copy of the GPL (or at least a link to it) along with the app?

2. Has Wix created a derivative work of WordPress code and, if so, what is that derivative work? Is it the React Native WordPress Rich Text Editor or the whole Wix mobile app?

3. If so, when releasing the relevant derivative work, has Wix released it under the GPL as the GPL would require and, if not, what are the consequences?

I’ll give my preliminary thoughts on each of them.

Inclusion of appropriate copyright notice and disclaimer of warranty and copy of or link to GPL

I’ve downloaded the Wix mobile app onto my iPhone and taken a look at the listing page on the Apple app store and the app’s various pages. As far as I can see, there’s no reference to the app including WordPress code, no copyright notice to that effect, no disclaimer of warranty in relation to that code and no copy of or link to the GPL (by contrast, the WordPress mobile app links to the source code in the relevant Github repository which also contains the GPL licensing statement and a copy of the GPL).

Whilst Wix has taken some steps to comply with these requirements in its own Github repository, I think we need to appreciate that Github is only one form of distribution and it’s not the form that most users of the mobile app would experience. Distribution of the app itself, which I assume embodies the relevant WordPress code, is a separate distribution. For this reason, to my mind, partial compliance with the GPL’s requirements on Github (in relation to inclusion of appropriate copyright notices etc) is no answer. In my view, to comply with the GPL, Wix needs to meet the requirements I’m discussing here – and which Matt is concerned about – in the distribution of its mobile app. As far as I can see, it hasn’t done so. If that is right, it is not complying with the GPL.

Derivative work

I can’t profess to know all the factual detail in relation to how the Wix mobile app works so am reluctant to nail my colours to the mast on the derivative work question. With that caveat in mind, I’d say that the ‘React Native WordPress Rich Text Editor’ in Wix’s Github repository does seem to be a derivative work of the WordPress Rich Text Editor. As far as I can tell, Wix has more or less conceded that point.

The harder question is whether the Wix mobile app is also a derivative work. Neither I nor, I suspect, any lawyer would want to give a firm view on that in the abstract, that is, without knowing how the app is architected, how the WordPress code is used, the volume of Wix’s original code, whether it’s separable from the WordPress code, and so on. Some will know the answers to those factual questions. I don’t. I wouldn’t want to hazard a guess on that in the abstract. Even with a full factual understanding, depending on the factual landscape different lawyers may have different views on this issue given the paucity of case law on the key provisions of the GPL. I think we need to appreciate that this is one of the harder and more controversial aspects of the GPL when applied in practice.

Now, I suspect some will say:

“But look at clause 2(b) of GPL2. It says: ‘You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License’. It is clear that the Wix mobile app contains at least a part of WordPress GPL’d code and, therefore, needs to be licensed as a whole under the GPL.”

The potential problem with this position is that it overlooks these words of the GPL, also in clause 2:

“These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.

Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program.

In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.”

You might think the words, “[b]ut when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License”, apply here. However, is the “whole” here “a work based on the [WordPress program]”? To be honest, factually, I don’t know, and I suspect different lawyers might return different answers on this question (see, for example, GPLv3 myth#2: You can’t mix GPL software with other software). Automattic seems to think the answer is yes. Maybe it’s right. As I say, though, I don’t know. I just don’t have enough information.

And let’s not forget the Software Freedom Law Center’s opinion on the GPL and WordPress themes. If I create a WordPress theme, comprising not only the standard PHP files but also a range of other assets (different stylesheets, javascript, fonts, images, etc), does the whole theme file need to be licensed under the GPL? Is the overall theme “a whole which is a work based on the Program”? Well, no, not according to the Software Freedom Law Center. They’ve said only the PHP and integrated HTML are derivative of WordPress.

So, as you can see, this broader derivative/collective work issue is not straight-forward. The deeper you venture into the rabbit hole, the darker it gets.

GPL licensing

From this point, when I refer to the derivative work, I’m only referring to the React Native WordPress Rich Text Editor, not the entire Wix mobile app.

If, as I suspect, the React Native WordPress Rich Text Editor is a derivative work of the WordPress Rich Text Editor, then Wix was obliged, when distributing it, to license it under the GPL. However, and despite some of the old GPL licensing being retained in the WordPress files, the relevant Wix Github repo says that the code in the repo is licensed under the MIT licence (I know the relevant statement also says “please consider the licenses of the dependencies separately” but that doesn’t exactly foster clarity).

Now, if the entirety of the code in that repo is a derivative work, then it all needs to be distributed under the GPL.

This is where, in some people’s minds, the question of GPL compatibility comes in. They think it’s OK if a so-called GPL-compatible licence is used for a work that is derivative of GPL-licensed code. This is a problem, and it’s a problem that one even sees, to some extent, in the WordPress.org theme and plugin guidelines (a point I can explain in more detail if anyone likes). This is why it’s a problem: to the extent that a work/program is truly a derivative work of pre-existing GPL-licensed code, that derivative work must be licensed under the GPL upon distribution. If you purport to license a true derivative of a GPL-licensed work under a different licence, you’ll be breaching the GPL. The GPL does not allow you to license a derivative of a GPL-licensed work under a GPL-compatible licence. MIT code can be absorbed into a GPL work but a derivative of GPL’d code cannot be licensed under the MIT licence.

Conclusions

Whilst Wix appears to have been open-source minded in relation to the React Native WordPress Rich Text Editor in terms of its MIT-licensing on Github, I think it should have applied the GPL, not the MIT licence. If Wix were to agree then, as long as the new code contributions were original or GPL-compatible, this particular issue would be capable of an easy fix (distribute the repo code under the GPL). The more significant issue, I suspect, is how it approaches the distribution of its mobile apps via the app stores. If my analysis is correct (and if anyone disagrees feel free to say), Wix will need to do more to comply with the GPL so as to rectify what, at present, seems to be copyright infringement caused by non-compliance with the GPL.

As to the broader issue of the licensing of the Wix mobile app as a whole, as I’ve indicated, that’s a factual-legal swamp into which I don’t propose to tread any more than I already have.

(Thanks to Ming Jun Tan for the featured image I’ve used in this post, released on Unsplash.com under CC0.)

Update, 2 November 2016

This post was first published on 31 October 2016. On 1 November (where I live at least) Wix updated the licence in its wix/react-native-wordpress-editor Github repo to the GPL.