When a leading proponent of open source says something about the GPL, people notice

When one of the world’s leading proponents of open source software and the GPL makes pronouncements of what the GPL does and does not allow, many people will have a look and some may take it on blind faith to be correct. It’s pretty important, therefore, that what such proponents say about the GPL is in fact correct.

On 1 November, one of the world’s leading proponents of open source software and the GPL said this (the second paragraph is referring to litigation in the Netherlands by, it seems, Automattic and WooCommerce, against Festinger Vault):

“A quick followup on my prior conversation with Theo.

During that chat, I talked briefly about a trademark infringer that was also distributing nulled plugins. I said “Not illegal. Legal under the GPL. But they weren’t changing the names. They were selling their customers Pro Plugins with the licensing stuff nulled out.”

I want to be clear that my reference to legality and GPL was solely focused on the copying and modifying of the code. That is one of the key freedoms of open source and GPL: the right to copy and modify GPL code.

I was not speaking about their right to charge money for nulled plugins. GPLv2 prohibits that because they aren’t providing physical copies or support. This is very different from reputable web hosts, who provide hosting and support for websites and e-commerce stores.”

Pronouncements need to be correct

From a GPL perspective, if someone purchases pro plugins, and then removes the likes of licence activation key processes, and then charges a fee for access to them, that is okay in relation to the modification and distribution of the software. As long as the requirements of the GPL continue to be met, it is not a breach of the GPL. The main requirements are:

• Copying and distribution: You may copy and distribute the program as long as you comply with some copyright notice and disclaimer requirements. Those requirements are that you publish on each copy an appropriate copyright notice and disclaimer of warranty, keep intact all notices that refer to the GPL and the absence of any warranty, and give recipients a copy of the GPL along with the program. (Section 1)
• Modifications / derivative works: You may modify the Program or any part of it and distribute the modifications or new work as long as modified files contain notices regarding the existence and date of changes and any work that you distribute that contains or is derived from the Program or any part of it is licensed as a whole at no charge to all third parties under the GPL. (Section 2)

GPLv2 does not prohibit people charging money for access to nulled plugins, at least if – by ‘nulled’ – we are only talking about things like removing licence activation key processes (but not removing GPL licensing statements etc).

The statement in clause 1 of GPL v2 that “you may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee” does not prevent a seller of nulled plugins from charging a fee for digital access to them.

Importantly, the reference to “physical copies” was not intended to refer only to something we can touch in the physical world, like ‘distribution in a physical medium only’. It was intended to cover digital transfers and downloads as well. This is clear from footnote 41 at pages 11-12 of the Free Software Foundation’s document “GPLv3 Second Discussion Draft Rationale”.

In the GPLv3, the language was changed to make this clear:

“You may charge any price or no price for each copy that you convey, and you may offer support or warranty protection for a fee.”

In this context, note that many plugins are licensed under ‘GPLv2 or any later version’. For these plugins there would, therefore, be nothing to stop an onseller/reseller from relying on the GPLv3 wording instead of the GPLv2 wording. (That’s not necessary, but they could if they wanted to.)

Important caveats

This doesn’t mean that people can onsell/resell pro plugins in any way they like. This was the main point I think Matt was making in the interview with Theo, specifically in relation to trademarks.

I addressed the important caveats in a post in 2015 “Readers ask: About reselling commercial plugins (updated)”. That’s a long post that discusses various topics, but the key points for present purposes were these:

“The short version is this: if the plugin in question is 100% GPL-licensed then, yes, that would be permissible under the GPL. This is one of the freedoms that the GPL confers on recipients of GPL’d software. However, the person who … changes the code and sells it, would need to be careful:

• • to comply with the GPL’s notice and other requirements;
  • not infringe any trademark (if one exists) or other branding rights;
  • not pass off any relationship with the original plugin developer or its business that doesn’t exist;
  • not breach any fair trading laws that might apply in the person’s country; and
  • not infringe any copyright in non-code files that accompany the plugin that are not under the GPL (e.g., help files), if that is in fact the case.”

The 2015 post included discussion with some leading theme and plugin shops of the practice of people reselling their commercial themes and plugins. If you’re interested in that general topic, you might want to take a look.

Why was the post published?

At first I didn’t understand why the post I’ve quoted was published. I am speculating here, but my guess is it was published in the light of what’s happening in the case in the Netherlands against Festinger Vault. I cannot verify the accuracy of this, but the founder of Festinger Vault has said in an announcement post that they have been subject to an “ex-parte ruling that imposed overwhelming financial penalties of $25,000 per day”, forcing them to temporarily suspend their services. Festinger Vault is challenging Automattic and WooCommerce’s claims, and in that context has said:

“A relevant part of our defense is that Automattic’s CEO admitted publicly in a video interview that Festinger Vault’s activities are “legal under the GPL.” Yet, despite this, they continue to use their trademark claims to try to silence us.”

It appears from an update announcement “that the second short hearing on lifting the ex-parte ruling of $25k per day is scheduled for November 27th, 2024.”

It will be interesting to learn more about this in late November or December.

To avoid doubt, I am not making any comment in this post on what appear to be Automattic and WooCommerce’s trademark-related claims against Festinger Vault. I am only commenting on the statement in the blog post about the GPL.