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.)

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