The Ethics of WordPress Themes at a Premium

Are WordPress Themes open source? Is it right to release them on a pay-to-download basis?

… what these premium theme providers are doing … we would call that “Evil”Chase Sagum

… themes link and use lots of internal WordPress functions, which make them linked under the GPL and subject to being a GPL-compatible license. If a theme (or a plugin) used no internal WP functions or APIs, then it could probably be considered independent, but that would be really really hard for a theme. Matt Mullenweg

I haven’t really talked about it a lot but I’ve been trying to do pay-for-use themes differently. Namely, giving away what might normally be considered a “Premium” theme—my WordPress theme framework Thematic—and charging for upgrades in the form of Child Themes and custom design. I think it’s a little more fair to the WordPress community and the debatable concerns around the ethics of paid WordPress themes.

But there’s still more questions. There’s always questions, isn’t there?

Is there a principled difference between on the one hand, Jon hiring Ian to build a blog – Ian using his own Thematic theme as a base, and makes a custom blog a “child theme” with a distribution of 1; on the other hand, Ian makes 10 types of “child themes” – puts them on ThemeShaper – for a small price.Jon Soroko

Good question, I don’t really know. As far as I understand the GPL license, any GPL work can be redistributed. So, um, maybe? Does that make me “evil”?

More important, I think, is what Jon is trying to get at in his question. “The general, overarching concerns,” as he says in his original comment, around open source, the GPL and pay-for-use WordPress themes. So far, there’s been no definitive answer that I know of. Excepting the oft-linked comment above from the WordPress support forums.

What do I think? I can’t answer that question either. ThemeShaper is supported by advertising from premium theme designers and, of course, I release commercial Child Themes (I call them Themelets) for my GPL WordPress Theme Framework, Thematic, at a premium. I even predicted the end of “Premium” WordPress themes. My opinion, as they say, is biased.

But! I can start a discussion. :)

So what do you think? Are WordPress themes open source? Do they inherit the GPL? Does the WordPress community want “premium” themes to exist? Should they?

Update: You must read the comments on this post. There is some really interesting discussion happening. Notable commentators include WordPress founder Matt Mullenweg and several designers involved in releasing commercial WordPress themes.

The Discussion Elsewhere

155 thoughts on “The Ethics of WordPress Themes at a Premium

  1. Pingback: The Ethics of WordPress Themes At A Premium

  2. I have mixed feelings about this issue. On the one hand, I’m a big supporter of Open Source software and have contributed a lot of code under the GPL, LGPL, and other licenses. I have tremendous respect for Open Source and can’t imagine my life as a software engineer without it.

    On the other hand, I recently created a personal blog (http://www.sumergocode.com) and after looking at many free themes I ended up buying a premium theme. I did so primarily for the quality of the theme, the support that came with it, and the lifetime updates. Frankly, I’ve got better things to do with my time than mess around with a WordPress theme, so I was more than happy to pay someone to make sure I have a great, easy-to-use theme now, and going forward into the future.

    As far as whether the premium authors are violating the GPL, I’m not a lawyer and wouldn’t even attempt to render an opinion on that. As far as the business issue goes, I think there is room for both (free and premium), and I was happy to spend a few bucks to get what I wanted. I think as blogging grows in popularity and extends beyond the initial techies and designers and such, more bloggers will be willing to pay for software and support.

  3. I think instead of focusing on where or not themes should be GPL’ed, that the Open Source community should show that using the GPL has benefits and can be profitable. If a custom theme developer can be a profession , why can’t premium theme developer? BTW, I define a premium theme as a custom theme developed for an un-predetermined, or undetermined group of sites.
    I don’t think a link is enough payment, because you can’t have a job or career based on having a link on a theme alone. What if a theme developer doesn’t want to have a blog with ads or what not to earn money indirectly.

    Ian, if I may ask, who are the two theme developers you know of considering publishing themes under GPL? Email me if you want it kept private.

  4. Pingback: Discussing GPL and Premium Themes :: WPLover

  5. After having a chat with Matt M at the recent WordCamp South Africa, I’m even more convinced that this situation is very much a grey area. I agree that open-source ethics should play a role (and maybe take on more priority over business ideas), but the “premium” themes market is far from reaching a mature phase and the business model itself will go through a few tweaks / changes yet.

    Consider Joomla for a minute… They have commercial themes (thats where WP premium themes started) and even though I’m not part of those inner-circles, it doesn’t seem like anybody else is disputing their validity & role within the community. So why should we treat commercial WP themes any differently? Both WP & Joomla are based on the same open-source principles…

    Which also begs me to ask the question (sorry Ian – there’s always q’s hehe), that why am I then allowed to charge clients good amounts of money for custom WordPress work, but not allowed to take that exact same work (I wouldn’t distribute client work; only using it as an example) and release it as a commercial theme? Fact is, that I still get paid – for the custom work I get one payment of $100, whilst I get 10 payments of $10 each for a commercial theme. The work I’ve put into the themes are the same (the commercial theme actually requires more work since you deal with 10 clients instead of one); so why aren’t I allowed to make money from that work?

    So back to what I said in terms of the business model not being mature… I believe in open-source, but there is space for developers to charge a fee for premium services. That is exactly how WP makes money and runs their business; by charging for the additional stuff…

    Consider this: Theoretically it is only the PHP code of a WP theme that inherits the GPL license, as that uses the WP hooks & API’s. So if we had to release our themes for free (on GPL) on WooThemes, but exclude all of our images and stylesheets, you’d get a blank, but working WP theme. Reason I say this is because our images & stylesheets can never be GPL (Matt confirmed this “loophole”). We’d never consider releasing our themes (excluding images & styles) for free and asking a premium for those, since I don’t believe in releasing 2nd-rate themes for free, but this example thus illustrate the grey area and difficult questions influencing premium WP themes.

    Ultimately I think the haters should get over themselves. Yes – WooThemes is a business and it keeps me busy, but we also have a passionate community of users (many of them being first-time users of WP!) who are extremely happy with their purchase. The haters are all what I’d call “WP Community Members”, whilst 90% of our users couldn’t give a damn about discussions like these, as they just needed a professional solution at an affordable cost.

    I’m all for discussion, as that would allow the business model to evolve and eventually reach that point where it is considered to be fair in terms of open-source vs business. But people should at least be constructive in this regard… Premium theme developers like ourselves, Brian Gardner, Cory Miller, Jason Schuller, Darren Hoyt etc have also given back a lot to the community and we shouldn’t be stoned for making a bit of money on top of all that. So keep the discussion going and let’s figure out the best way forward… :P

    (BTW… Sorry for the long comment… Just have a lot to say…)

  6. If you get a free car but you dislike its colour, you’ll want a paint job. You’ll pay the guy who’s gonna pimp your car and nobody will argue about it. Right?

  7. @Adii Thanks for the lengthy comment! Any plans to write a longer (or shorter) post on this?

    Re. Giving back to the community: That’s the problem, as the “haters” see it. The code is the thing. It’s the releasing of the theme that counts, in this instance, as “giving back to the community”—and that’s where we get the controversy.

  8. @Ian – Yeah… The comment probably inspired me to put my thoughts down in a more ordered way. I generally try to stay away from this discussion, as I feel that most of the people discussing it are very biased and totally incapable of being objective.

  9. I would say you’re allowed to sell WordPress themes. Redhat sells Linux. However, being that the theme is technically GPL according to Matt M, I as a buyer of a premium theme have the right to modify it so long as I release it back to the community either free of charge or at a premium knowing that my modified theme will also be under the GPL.

    By the way, I’m not always for premium themes. I’d rather build a custom theme for a client. If I’m paying for a theme I want support and I’ve noticed some of the theme developers for what ever reasons they have decide to sell the entire project (think Market Theme & WP Designer) and than you loose all the support services you just paid for.

  10. IANAL. Until Automattic actually goes after a designer, this will never be clear. (except automattic doesn’t own the entire wordpress codebase, so it would be terribly difficult to round up all the relevant code contributors)

    There’s no reason a designer can’t sell premium website templates. Making that template depend on a specific CMS can, however, run you into licensing issues.

    However, Matt’s comment is legally incorrect. If using an API transferred the GPL, non-free linux software would be impossible. Reading the codex can also not be proven to transmit the GPL. Code samples in the codex, however, are licensed GPL, not GFDL, so they could theoretically transmit the license. (the reasons for which are ancient, and likely belonging solely to matt).

    Plugins (small apps that cannot exist without a larger GPL app) do catch GPL from their parent. So any attempt to profit solely off the advanced features of a theme would be on shaky ground, since those options would catch GPL.

    Adii is right, Stylesheets and images do not catch the GPL from their PHP templates, since they act on the resultant HTML, not the PHP itself. To that end, Child themes cannot catch the GPL from either WordPress, or their Parent theme.

  11. I’m always riding the fence on the GPL issue.

    I don’t believe any of us could argue that the PHP used doesn’t directly tie into the WordPress API. With themes, as already mentioned by others, we have a major gray area with images, CSS, and XHTML. Those things are not dependent on WordPress. I could take my stylesheet and transfer it over to any software that I like. Maybe someday I might want to make a Movable Type theme (God forbid!).

    Honestly, I think the biggest issue for most of us theme developers is with redistribution. We’ve worked hard with creating something and we’d rather not see others giving it away. This is one of the reasons I’ve stepped away from the GPL a bit — people redistributing my themes with links to spam sites and such.

    I’m all for folks making a few dollars on premium themes. I believe you should be able to put whatever price you want on your work. I have problems with some fly by night developers putting out crap for a price when there are 100s of better free versions.

    Premium theme designers also help push theme development to places we haven’t seen. The handful of them that know what they’re doing, put out some quality stuff and the rest of the community follows suit with free versions of cool things. This, in turn, makes premium theme developers come up with more innovative ideas. It’s a cycle that benefits us all.

    Plus, Matt and co. probably benefit more than most are willing to admit from paid themes — I’m sure some users have moved over to WordPress just because they’ve seen some premium themes that they liked. The more people using WP, the better. The fewer people using other platforms, the more WP benefits.

    One thing that I do think is that we’re going to have to see some more changes in the business models. The typical $99 theme model won’t last forever.

    What it all really comes down to is the users. If users are willing to fork over a few bucks, then there’ll be a place for pay-for-use themes despite any discussion of the GPL. With more and more people turning to WordPress for a solution to building their sites, I don’t think this will be a problem.

    Anyway, there’s a few of my thoughts. Maybe I should’ve just written a blog post.

  12. The same way wordpress.com charges for extra space, custom css and the possibility of using your domain name, the same way Premium Theme Designers charge for design, css and support. I don’t see why this is a problem, since the client pays for customization.
    Also I’m no lawyer… but I had a quick glimpse at the GPL license(the version that wordpress.org links to) and said some thing like this: “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.” So even if the theme is GPL wouldn’t that mean you could sell it?

  13. @Cristi – Yes, we can still sell themes, but the buyers can should be able to redistribute it as they wish according to the GPL.

    @Justin – Maybe I should’ve written a post, instead of just commenting, as well! :P But I agree with all you have said and maybe all of the quality (i.e. non fly-by-night) premium theme developers should start the “change in business model” by calling the themes “commercial themes”, instead of premium. This would obviously only worked if most of the developers agreed to do so… Power in numbers and all… ;)

  14. @Adii – Thanks for pointing that out. I’m curious of what the outcome of this will be. In the end the only thing that can’t fall under the GPL license is css and images since they are not software… I guess one ca release the theme as GPL and just put a more restrictive license inside the images folder and the css. In the end I think people who buy them do so for the looks, quality and support, not as much for how many widgets the theme can have.

    I know there are implications on this but this kind of gray areas will always exist.

  15. @everyone Thanks for all the great responses. Perhaps this will produce some sort of “official” response or remark somewhere. Or—and just as good—more discussion in the WordPress Development and WordPress Theme communities.

    For what it’s worth, I prefer the term commercial over premium. Someone called one of my Themelets commercial and I’ve stuck with it. It doesn’t make any value judgements that I’m not prepared to make. (I’m just not Barnumish enough, I guess.)

  16. @Cristi – Reality is that 99% of our users on WooThemes aren’t even aware of any GPL grey area and couldn’t be less bothered. In their eyes, they’ve bought a nice theme, with some nice support & modification help – so why would they worry about whether the theme should be GPL or not!?

    Again – that doesn’t justify the business model in its current state, but it does make all those premium theme haters look kinda stupid.

    @Ian – Dunno whether we can expect an “official” stance from the WP peeps on this issue… :P And I think we’re definitely going to move away from premium and label our themes as “commercial” as well.

    As soon as Magnus (my partner on Woo) returns from his Alaskan fishing trip that is… :)

  17. This issue isn’t going to be solved any time soon or at all. This issue falls under a bigger Open Source issue of dynamic linking. Which is what themes and plugins are doing. The Open Source Community is split on whether or not dynamic linking (calling functions and using their output) is enough to make that script count as a derivative work.
    I’d like to see a Commercial Theme be sold under the GPL and see what happens. If no one does it in the next few month, then it might be me who tries it.

  18. There are many ways you can make money without violating the letter or spirit of WordPress’ GPL license, in fact a lot more than just peddling code. It’s disappointing that so many otherwise-talented designers are focusing on the short-term, not unlike the sponsored links era. I’m happy to give significant promotion to theme designers who stop fighting the license of the platform which enabled their market to exist in the first place, just email me.

    “A business that makes nothing but money is a poor kind of business.” — Henry Ford

  19. @Matt Thanks, Matt! I really appreciate you joining the discussion.

    Will there be an official response, in the form of a blog post or codex page, that lays out what the GPL means for WordPress themes? Something beyond just a link to the somewhat-unclear-in-this-regard GPL license? Something that addresses the question of images and CSS inheriting the GPL?

    There’s a lot of people that want to know so they can make sure they’re doing the right thing.

  20. Every professional lawyer that has looked at the issue agrees at the very least the PHP of themes is covered by the GPL. If people want to go through packaging gymnastics to avoid the GPL of course they can, but they’re missing the point and disrespecting the community.

  21. @Matt – It’s not packaging gymnastics, as much there’s also a fine line of respecting the platform and being fair to the designers. I maintain the exact same stance I did in our conversation when you were out there, and that is that the current business model is far from perfect, but it is not yet ready to go 100% open-source. I do however believe that there are good intentions in this regard and that the model will eventually grow into something more “open-source-appropriate”. :)

    @Ian – Thanks for sharing that Habari link. I especially love the following quote from one of the comments re: Joomla:

    “In the Joomla! community, many commercial extensions have encouraged open-source counterparts. These have thrived and even eclipsed the original commercial offerings. This kind of competition will be good for the project.”

  22. The story thus far: The PHP in any WordPress theme—commercially released or free—is GPL and subject to the GPL license. This means, amongst other things, that it can be modified and redistributed. This is a good thing.

    The word is still out on the images and CSS in WordPress themes. I think. Maybe.

  23. It is not the theme you pay for a premium, it is the work of labor, which in terms of economics, the “Economic base”.

    To Chase Sagum:
    Yeah because you dont want to pay.

    To Matt:
    Because IT IS A WORDPRESS Theme…

    To Jon Soroko:
    Basically, nothing is “as is original” in this big wild world.
    Don’t you know the “theory of evolution”?
    We all came from the same orgin.
    Not even Vincent Van Gogh can tell his work is not from anywhere…
    Can you sue some artist drawing your gardening work?
    “Man my young brother look just like Justin Timberlake, will he sue me because I try to act like him?”

    We are having a lot of fun talking about the orginality, copyrights/patent and etc.

  24. In the interests of objectivity, whether or not you can license images as GPL, icons have been released under the GPL.

    Also, in the interests of objectivity, I’d like commentators to remember, if WordPress themes are completely and totally GPL it’s not wrong/idiotic/silly/naive to expect them to be released for free and redistributed for free. But that’s what we’re trying to determine: are they?

  25. Ian and All,
    It was my understanding that you can’t package GPL and non-GPL compatible software together without the entire thing inheriting the GPL (including images and CSS).

    http://www.gnu.org/licenses/gpl-faq.html#FSWithNFLibs

    And by the way, CSS can be GPLd as well. It offers no benefit, since CSS is visible to users, but there is absolutely no reason whatsoever why CSS can’t be GPLd. It’s code, so the GPL was made for that kind of thing.

  26. @Nathan –

    that has to do with statically linked binary libraries. Not relevant here. Neither PHP nor WordPress are dependencies for CSS. HTML/XML are dependencies for CSS.

  27. However, in many cases you can distribute the GPL-covered software alongside your proprietary system

    “Arms length” here being that the PHP code does not interact with the CSS, and the CSS deals with the HTML output, not the code itself.

  28. If the two programs remain well separated, like the compiler and the kernel, or like an editor and a shell, then you can treat them as two separate programs—but you have to do it properly. The issue is simply one of form: how you describe what you are doing. … if [users] know that what they have received is a free program plus another program, side by side, their rights will be clear.

    http://www.gnu.org/licenses/gpl-faq.html#GPLInProprietarySystem

    Plus: I don’t want to get into semantics (okay, I do) but I wonder if this isn’t a question of what we—and the GPL—mean by program and image—or visual design. Is a program substantively different than a visual design? I’d say so. Simply, the former does stuff, the latter communicates stuff (probably too simple but you get the gist). Does the GPL address this difference when it comes to packaging? Or is there really even a difference?

    And, not in a “Billy does it, why can’t I?” way, there’s TopNotch Themes’ FAQ that mentions the GPL and redistribution of their pay-to-download themes:

    Can I redistribute a theme from TopNotchThemes?

    No. … you can not legally distribute, sell, or use a full theme you purchase from TopNotchThemes on more than one website … The template files are considered a part of Drupal, which is licensed under the GPL, which means they are not restricted in their redistribution. You are free to share the .php documentation and blog so others can benefit from them. However, the rest of the theme – images, CSS and JavaScript – is independent from Drupal and owned by us and licensed by you for one website per purchase.

    http://www.topnotchthemes.com/faq

    P.S. I hope this is all coming off the right way. I just want to know. You know?

  29. The more I think about it the more I realise this whole licensing mess isn’t actually WordPress’s fault. They had to release under GPL because that was the licence Michel Valdrighi chose for b2. He also happened to believe the GPL allowed him to require a linkback to cafelog.com, so it probably wasn’t the best-informed decision ever, but then he wasn’t to know what a monster his little blogging engine would eventually grow into.

    So now, if we have to release our themes as GPL, that’s just another consequence of building on top of somebody else’s GPL-ridden code. (They call it viral for a reason.) I still think it is fundamentally nuts to argue that inserting a single function call into an html template renders null and void any other licence of said template; but, well, I’m increasingly prepared nowadays to believe that the GPL is fundamentally nuts. It was never intended for web design. It doesn’t have to make sense in this context.

    Of course Matt loves the GPL: he’s been able to build a very profitable business based on somebody else’s ill-thought-out licensing decision. So if he doesn’t want us developing non-GPL themes: fine, let’s not develop non-GPL themes. Why help his company to grow when they’re trying to stifle your growth? Let’s develop for other platforms which aren’t subject to the same bonkers restrictions, and encourage the use of licences which were actually written with creative works in mind.

    In short: I am nowadays less inclined to argue the toss about GPL than to throw my hands up in the air and say: fine, whatever, your business, if you want to carry on alienating the design community go ahead. Matt may be shackled to a clunky legacy codebase with a myriad of security holes, a botched admin interface and a licence that nobody understands, but we’re not.

  30. I say this again… 99% of our users on WooThemes aren’t bothered even the slightest about discussions like these. They’re the one’s that are supposedly losing out by paying for a product that should be available free, yet they are pretty happy with their decision and theme. I also don’t think they’d want to give anyone the theme for free (i.e. redistribute it) if they’ve paid for it.

    This doesn’t mean we shouldn’t discuss this topic, but maybe we do need to see it in a whole different light? Or at least try consider other factors that’s being influenced by a bunch of happy users!?

  31. I don’t have much to add here, as there have been some fantastic points made already, but I will just say that I agree with the renaming of ‘premium themes’ to ‘commercial themes’. A premium theme could technically be free (after all, premium simply means ‘of exceptional quality or greater value than others of its kin’). On the flip-side, we’re starting to see the occasional free theme that far eclipses some of the premium ones (such as Agregado). Defining a paid-for theme as ‘commercial’ will help to clear up at least part of this grey area.

  32. I also don’t think they’d want to give anyone the theme for free (i.e. redistribute it) if they’ve paid for it.

    I see a lot of customers buying themes and asking webdesign to make them unique. So they give these guys their themes to work on it and then who knows what the designer will do with it…

    Regarding the GPL, I don’t understand everything here. Some are saying that Premium Themes are “illegal” because non-GPL and some are talking about redistributing the themes. One comment about wp.com was really interesting. You can pay for customizing your theme’s CSS. So why couldn’t you sell a theme? That GPL thing seems really ambiguous to me and even if WordPress is GPL, there is a big business market from which Automattic takes advantages too…

  33. @Francis WP.com is a little different. Users on wp.com pay for extra privileges, or bonuses. One of which is the ability to modify their CSS through their personal WP.com backend and have it applied to their personal blog hosted by WP.com. It’s a little different than charging to download a possibly GPL product. It’s charging for a service made possible by a GPL product. The same idea would apply to the sometimes derided, sometimes applauded, possibly still happening, WordPress.com Theme Marketplace.

    WP.com and Automattic don’t violate the GPL in anyway I can think of. In fact, they’re a really good example of making money with a GPL project. Anyone can start their own WP.com with WordPress mu. Anyone. (The only caveat is the requirement of being remarkable—that’s the biggest technical hurdle) Check out GetShopped.com to see a really nice example of a commercial WordPress Mu project.

    • Yes, this is a very important distinction for developers to note: The GPL kicks in when you distribute code. As Ian points out, you can build services on GPL projects, charge for the service, and never give your code away. But once you distribute the code (under the GPL), it’s out of your hands.

      I’ve worked at a couple of companies that rely on that fact. One was a company that was sort of a cross between eBay and YouTube, and the other provided “captured portal” networking solutions (like when you’re at a hotel, and they automatically redirect you to a web page to agree to terms of service before you get internet access). Both company’s services were built upon GPL’d software. I think in the second case, they had to get a license for MySQL due to the fact that they were selling app servers. But in neither case did they have to give up any rights to their custom code, because they were selling services, not code.

      It’s been pointed out that with themes, it may be possible that the CSS and image files can be separately licensed. The PHP code is too tightly coupled to WordPress (it won’t run stand-alone), and thus gets “infected” with GPL. But the CSS and images are useable outside of the WP context — any HTML page, whether generated by WordPress, TypePad, DreamWeaver, NotePad, or your dog randomly hitting your keyboard with his tail, could utilize the CSS/images, as long as the right tags/ids/classes are presented.

      It’s a minor loophole, to be sure, since the bulk of what makes a WP theme really unique and useful is generally going to be in the PHP. But it’s there. (I think. IANAL either.)

      • That’s an interesting point, and one I’d like to ask for clarification; if I use WordPress to developer a custom app for a client and then *distribute* that to my client, have I not triggered the GPL?

        And another concern; if distributing to my client triggers GPL, am I forced to make it available somehow (other than to my client?) Plus is there any requirement to do do anything more than like develop install instruction, documentation, etc?

        The point I’d like clarified is how do GPL deals with custom code that is distributed to just one client.

  34. Essentially it seems that some kind of statement from the source would be helpful, focussing on two issues:

    1) Do the WordPress founders genuinely feel that people who sell themes are “disrespecting the community”? If so, how? [ethical concerns]
    2) Are paid theme developers breaking the terms of the GPL? If so, how? [legal concerns]

    Should it turn out that the answer to 1) is yes, then it’s simply a matter of personal morality and whether or not an official statement against paid theme developers shapes public demand for their products. If the answer to 2) is also yes, then it becomes a legal issue, and developers have to weigh up the likelihood and associated risks of being prosecuted. But, without those answers, this debate will run on for a while.

    Should it emerge that selling any file (or zipped package) containing a WordPress function is illegal, it would put a great deal of WordPress developers in an incredibly tricky situation. Here’s why:

    It’s surprisingly difficult for WP developers to build a business model that doesn’t depend upon code sales or downloads, and instead focusses on a service or advertising offering only. What’s more, many WordPress developers are former service-only web people who are attracted to WordPress precisely because it supposedly allows them to shift their businesses into a product-based model to create more free time and a better quality of working life, as ‘lifestyle design’ champions like Tim Ferriss’ are currently advocating.

    Faced with the sudden loss of a product-based business, developers who wish to earn a living via WP are left with five options:

    1) Give away themes and plugins and provide add-on support and customisation services, or do custom design only;
    2) Give away themes and plugins and drive traffic to create advertising revenue;
    3) Give away themes and plugins for the warm glow alone;
    4) Jump ship to another platform or build their own;
    5) Get a new job.

    From my experience so far, I feel that 1) and 2) are probably not viable business models (can you name 5 people making a living this way?). Solution 3) is probably what the WP founders would like to see, which may also have a bearing on the quality of some of the existing free themes. My feeling is that, to attract seasoned theme developers and talented graphic designers, WordPress needs to openly support and promote them (on a commission model such as the iPhone App Store) and not bash them publicly by saying that they are ‘disrespecting the community’ or ‘focusing on the short-term’.

    If no support is forthcoming, I fear that they’ll be left with options 4 and 5, neither of which would be good for the ‘community’ in the long-term.

    So, perhaps the question should be reframed: not “is it right to sell paid themes loosely derived from GPL code?”, but “how can we all work together to make WordPress better, whilst acknowledging the relative merits and confines of the GPL?”

    Finally, should it emerge that it’s illegal to offer paid theme downloads, another tricky question emerges: “Do developers who are paid to build one-off custom sites using WordPress have to make their theme files available to anyone who asks for them?” If not, what makes them special? They’re still profiting from GPL-derived code. If all developers were suddenly forced to make their code for individual projects available, I suspect that many companies will be put off using WP for commercial sites altogether, and that it could become a publishing platform solely for not-for-profit individuals and organisations. (As a blogger with a unique self-built custom theme at http://putthingsoff.com this would also put me off using WP.)

    I think it’s an interesting debate, but one that needs higher input to further. Thanks for sparking it off, Ian, and sorry for the lengthy comment!

    • Nick, I think you omitted at least one potential option worth considering:

      6.) Sell themes that are also licensed via GPL. Provide support to paying customers. Include functionality in your sold versions you can legitimately excluded by architecting the functionality to work independently of WP but build shims that interface your functionality to WP.

      I think this is potentially a viable model because it respects the GPL and (according to WooTheme’s @Adii most customers won’t even know about the GPL and thus will happily buy and will also get the support.) Of course @Matt may dislike this because he may feel it circumvents the GPL but based on recent legal opinions I’ve read (can’t find a link right now) I’m pretty sure this would address the legality and also for the most part the ethics.

      JMTCW.

  35. Regarding Nick’s question in the penultimate paragraph of his comment:

    “Do developers who are paid to build one-off custom sites using WordPress have to make their theme files available to anyone who asks for them?”

    Luckily, there is a clear answer here: No.

    See the following FAQs from the GNU Project’s (GPL) site:
    Does the GPL require that source code of modified versions be posted to the public?
    If I know someone has a copy of a GPL-covered program, can I demand he give me a copy?
    If I distribute GPL’d software for a fee, am I required to also make it available to the public without a charge?

    Essentially you’re the gatekeeper. If you distribute your GPL code then anyone can do whatever they want with it. If you keep it to yourself then no one can do anything with it; or demand that you give it to them. So you’re safe when making custom sites for clients.

    Finally, keep in mind that I am not a lawyer (IANAL)!

    • Those answers generate a few more questions, i.e.

      1.) “…if you release the modified version to the public…” what does “the public” mean? Could a theme developer create a “theme club” and then release the modified version only to club members? Are they “the public?”

      2.) “…requires you to make the modified source code available…” mean? Does that mean the person has to allow people to download from an FTP site? Mail them a CD with the source? Something else? All for free?

      I know you are not a lawyer so can’t be sure, so this is a general question for the community.

  36. @Nick – Nice comment and I believe you to be spot-on. You ask some compelx questions, which just shows exactly what the problems are within this situation.

  37. @David — thanks for the clarification about custom one-off themes. Phew!

    @Nathan — you’re right, of course. The main GPL-related issue that WP theme developers should be wary of is the question of redistribution rights. Under the licence:

    ‘if someone pays your fee and gets a copy, the GPL gives them the freedom to release it to the public, with or without a fee. For example, someone could pay your fee, and then put her copy on a web site for the general public.’

    This represents a threat to paid theme developers, because the GPL-linked code (the PHP files) are free for a purchaser to redistribute. Of course, most theme developers could try to circumnavigate what they would deem to be ‘illegal’ distribution by claiming that they own the rights to the CSS files and images.

    I suspect that, for all the fuss and furore, probably nothing much will happen in the short term, and that paid theme developers will continue to support and encourage WordPress use whilst building healthy, perfectly-entitled businesses around it, unless a case is made against one of them, the legal basis for which appears to be non-existent right now, and the action of which would prove incredibly bad for publicity.

    In the longer-term, it would be great to see a healthy paid themes community develop at a central location with the support of and benefit to the whole WordPress community.

  38. My feeling is that, to attract seasoned theme developers and talented graphic designers, WordPress needs to openly support and promote them (on a commission model such as the iPhone App Store)

    This is already happening to a certain extent. Automattic have started hiring designers to produce semi-exclusive themes for wordpress.com. (I say semi-exclusive because they drag their feet about releasing .org versions, though you can get hold of them if you know where to look.) Monotone was the first, they just released one by Design Disease and there’s another by Derek Powazek in the works. They seem to have abandoned the ‘marketplace’ model in favour of a more traditional client-based relationship where Matt hires you to produce a theme to his specifications then distributes it as he sees fit. The only major problem they’ve had so far is that the majority of .org designers are unfamiliar with .com and don’t anticipate the many and varied ways .com users will find to break their themes.

    Of course, wordpress.com remains as closed to the majority of theme designers as ever, and requesting the addition of a theme or even an upgrade of an existing one will get you nowhere. But that’s where Automattic’s focus is now and for the foreseeable future. They’re not especially bothered about whether or not designers support .org: if it doesn’t benefit wordpress.com, they’re not interested. Free-as-in-beer GPL themes which can be ripped and modified for a multi-user setup are potentially useful to them. Complex premium themes with a host of options, not so much.

  39. I sent a quick (poorly phrased) email to the Free Software Foundation—publishers of the GPL—about this. I don’t expect an answer, but what the heck.

    Here’s the email:

    There’s a rather indepth discussion going on about how CSS designs (including graphics files) packaged with WordPress themes (licensed under GPL v2) interact with the GPL:

    http://themeshaper.com/the-ethics-of-premium-wordpress-themes/#comments

    WordPress founder Matt Mullenweg has gotten involved with the discussion, along with several designers selling downloads of custom WordPress themes that they don’t want redistributed for probably obvious reasons.

    The main question seems to be: do CSS and images inherit the GPL when they are packaged along with, undoubtably GPL, PHP scripts?

    The GPL refers to programs. Are visual images and visual design considered programs by the GPL? Can a picture of a flower become a program?

    Does the FSF have an answer to this license question?

    You can email them at gnu@gnu.org if you’d like to ask them yourself. Perhaps if enough people ask them, the FAQ can be updated to respond to some of the inquiries here.

  40. This is a great discussion, and in my mind it’s not hurting a damn thing to sell “premium” themes. There are plenty of free ones out there but if customers want something that is tight code and comes with support, I think it’s well within the “spirit” of things to allow the providers to get compensated for their time.

    Warm glow doesn’t pay the bills.

    However, @adii, your argument that “99% of our users on WooThemes aren’t bothered even the slightest about discussions like these” doesn’t really matter. Just because somebody doesn’t care that the merch they bought is stolen doesn’t make it acceptable. Even if they don’t know it was stolen when they bought it.

    I support your position, but that’s not a great way to back it up.

  41. @Tim Grahl – Well, the merch isn’t stolen… :) All I was suggesting that the users don’t mind that they have to pay for the theme and they’re not fussed about the possibility that the theme could be GPL’ed.

  42. @Adii –

    While it’s true that unknowing users are being provided with sourcecode, so much of the thrust of the GPL is intact, it’s still not being followed. The license specifically states that you cannot tell users of a GPL product that they may not redistribute.

  43. @Adam – 100%. Until however the issue – of whether our images & CSS is GPL’ed – is solved, there’s no reason to change the model. Plus, even if whoever decides that the images & CSS inherits the GPL from WordPress via the theme’s PHP, then Nick still raises a few tough questions which needs to be considered.

  44. Pingback: Is selling Wordpress services illegal? | Out:think

  45. @That Girl Again — Interesting to see how WordPress.com is taking the focus for collaboration efforts. It’s a step in the right direction…

    @Ian — great idea to get some official word on the licence and inheritance issues. If whole themes/plugins fell under GPL licence, it would mean that anyone currently distributing paid themes via bittorrent etc. (and there are plenty out there) are doing so legally, which would rock the boat a little.

    @Adii — you’re right. If the licence issue was clarified by gnu.org, it would still leave a few questions. The core ones for me are:

    a) What exactly does Matt mean by theme developers “fighting the license of the platform” when it’s acceptable to create commercial works under the GPL?

    b) How is selling themes, providing support, offering tutorials, and dedicating your working life to WordPress “disrespecting the community”?

    c) How can selling themes at a very reasonable $80 a shot be “violating the letter or spirit of WordPress’ GPL license”, when Matt has raised $29.5 million in venture capital for a portfolio of products founded on the GPL licence?

    I’m genuinely puzzled by the ‘official’ WordPress stance on paid themes. I know the overall goal is an honest one, but something doesn’t add up. Perhaps there’s another reason paid themes are being discouraged?

    • In some countries, $80 is a week’s average pay. In other countries, $80 is a month’s average pay. Stating $80 is “reasonable” is simply rationalization. I’m just sayin…

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