Who owns WordPress? or How to Make Money in a GPL Universe.

In the last few days a war has been raging on the internet over WordPress and its GPL license. It is not the first time this issue has come to the forefront, nor will it be the last. And in all likelihood, when the whole thing blows over there will be casualties.

If you want to get a glimpse of what has happened and how it is progressing, the good people over at WPDaily.co have been covering the story very well from both sides. I urge you to read through the comments as well as the articles themselves.

Rather than summarize the events thus far unfolded I will ask some questions and propose some answers surrounding the underlying issues on which this battle is founded:

The first: Who owns WordPress? and by by inference Who controls WordPress? The second: How do you make money in a GPL universe?

Who owns WordPress?

It’s a valid question and an important one to know the answer to. If we are talking strictly about the copyright to WordPress the answer can be found in the licence that ships with the application in the file called “license.txt” found in the root folder. The first two lines read as follows:

WordPress – Web publishing software

Copyright 2011 by the contributors

In other words WordPress’ copyright is held by all the people who have contributed to it. There is a discussion in here about who the word “contributors” refers to, whether it is restricted to those that have identifiable code or graphic assets in WordPress or if it also includes those that have had input on its development, but that is a topic for another day. What is interesting is that unlike many other Open Source projects, no single person or corporation holds the copyright apart from the original b2 code for which Michel Valdrighi holds the copyright. Instead each contributor’s copyright is upheld. That in turn means the copyright to WordPress is held by thousands of individuals.

This will come into play later.

When you continue reading WordPress’ license you learn that the application is released under the General Public License (or GPL) version 2 “or any later version”[1]. The GPL is the licence under which the copyright holders lets you use the software. And it is the GPL that makes WordPress free. The GPL was created to protect Open Source software from being patented and made proprietary by individuals or corporations. At its heart lies a simple principle, paraphrased (by me) for brevity (for a full understanding I urge you to read the GPL and its preamble.):

You have the freedom to obtain the free software, you have the freedom to distribute copies of the free software, (and charge for this service if you wish), you have the freedom to change the software or use pieces of it in new free programs, and anything you build based on software released under this license automatically inherits this license.

If WordPress was not released under the GPL we would not be where we are today. It’s openness, freeness, and collaborativeness are all a direct result of its license. And for that we have to thank its originators.

What then is the answer to the question “Who owns WordPress?” The copyright is held by those that have contributed to WordPress, and because of the GPL, you are granted a license by the copyright holders to own, copy, distribute, change, and use the application in any way you want as long as you adhere to the GPL.

But then who calls the shots?

This begs an obvious question: If WordPress is not owned outright by any one entity or even a definable group of entities, and anyone can get a copy, modify it and add to it any way they want, and pretty much treat it as their own, who calls the shots? The answer: The contributors. And chief amongst them Matt Mullenweg. Matt is by an large the originator of WordPress and the driving force behind the application, and he is also one of the chief contributors to its code. Around Matt sit several concentric rings of developers, separated by their level of contribution. The first ring containing the lead developers is heavily populated by employees in Matt’s company Automattic and/or appointees of the WordPress Foundation[2] which holds the WordPress name and logo trademarks and other entities controlled by Matt [4]. Though it is unclear what role exactly the WordPress Foundation plays, it is hard to argue it has no influence[5]. Next sit more developers and around them even more developers. These are the people that by committee call the shots through a democratic-ish process (For an inside look at the process, see Andrew Nacin’s comment below). Remember how I said “the copyright to WordPress is held by thousands of individuals”? This is the result.

What’s cool about this is that you can be part of the decision making and application building process. And if you’re good, you might end up at the very top of the pyramid. What’s disturbing is that because of this structure you can easily get infighting, clique building, branching, and there is even room for of something resembling a coup or hostile takeover. Think politics and you’ll see what I mean.

At present the evolution of WordPress is very much influenced by Automattic and Matt himself, and there is no reason to think this will change any time soon. As the owner and operator of WordPress.com Automattic has a vested interest in WordPress, and by investing heavily in contributions to the core of the application the company is in essence controlling its evolution and future development.

Conflicting Interests

This brings us to the aforementioned battle that has been raging this week: On the outside it is a battle over interpretation of the GPL and the consequences of a breach of the license. But underneath there is much unspoken questioning over who controls the WordPress universe.

Matt has taken a hard stance on the GPL and is through the WordPress Foundation striking down hard on those that are in breach of it. The rules of the Foundation clearly state that you cannot contribute to WordPress and associated entities like WordCamp in any meaningful way if you are in breach of the Trademark policies or the GPL, and when someone is found in breach, they are promptly locked out. But the interpretation of what exactly constitutes a ‘breach of the GPL’ can be debated, and while Matt and the Foundation land squarely on one side, there are many who would have preferred to see a more moderate approach.

Had the power structure of WordPress been clearly defined with Matt at the top and the Foundation as second in command, this would not be an issue. But because of the distributed nature of the ownership of WordPress, that is simply not the case and it is only by the goodwill of the community that extreme action of the sort executed this week can be taken. And the result of extreme action, like in any democratic entity, is dissent and murmurs of fractioning, departures and takeovers.

Scary thought, isn’t it. I’m going to leave that line of reasoning for you to complete.

How to make money in a GPL universe

Let me preface this with the standard preamble: The following story is fictional and does not depict any actual company, person or event. Now consider an example:

A theme foundry is selling Premium WordPress themes with a split license thereby restricting the redistribution of sold themes. This is done so that once a theme is sold, the purchaser can’t simply share the theme with the world robbing the originator of potential future profits.  The WordPress Foundation finds that in their interpretation this is either a breach of the GPL or a breach of the additional restrictions and[3] decides that theme foundry and its contributors are cut off from contributions to community events. The foundry responds by saying they can’t continue doing business if they adhere to the most strict interpretation of the GPL. A war (of words) breaks out.

This situation begs a question everyone who works with WordPress or any other open source and/or GPL software needs to ask themselves: How do you make money in a GPL universe? If you can’t prevent the redistribution, alteration, and building upon your code or designs, how do you protect the value of your creation?

Let me give you my answer and then you can draw your own conclusions.

First off, let’s look at the GPL itself to see how you can create a work related to WordPress without at the same time inheriting its licence. Part 2, paragraph 5:

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.

In other words if your theme or plugin has segments of code that does not in any way use components of WordPress itself (ie no WordPress functions or references to elements within WordPress) then you can distribute these segments under a separate license if they are distributed separately. The license continues:

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.

So if you package your proprietary non-WordPress referential or derivative code along with code that does derive or refer to WordPress (ie a piece of code that uses a WordPress function), the entire package, including your proprietary code, inherits the GPL license in perpetuity. A license inheritance by association if you will.

The reason for this is explained in the next paragraph:

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.

The way I interpret this (keep in mind I’m not a lawyer) you can’t really build a theme or plugin for WordPress without that theme or plugin inheriting the GPL unless you physically split the GPL and non-GPL code into separate packages and then adhere separate licenses to each package. As a result once you release a theme or plugin into the wild you effectively lose control. You can sell it, but you can’t control what the buyer does with it.

This is fundamentally different from general commerce and normal software licenses. And when you try to apply general commerce principles to GPL products, things get messed up in a hurry. The whole revenue model and philosophy of cost-per-item simply doesn’t work under GPL because the product itself is free. In place of the product being the commodity, it is the service that is sold. This is clearly stipulated in the GPL preamble:

(…) you have the freedom to distribute copies of free software (and charge for this service if you wish) (…)

This is why you can charge whatever you want to install WordPress for a client or build themes or plugins for a client. Because you are selling the service, not the product. It is a fundamental shift in reasoning, and it requires a fundamental shift in the way many people do business. It’s not impossible – in fact it can be extremely profitable – but it is different than how it is done now.

Updates and changes.

To keep this article as accurate and up-to-date as possible I am making changes whenever unclarities are pointed out that can be more precisely explained. Below is a list of those changes:

See comments below for further discussion.

Footnotes    (↵ returns to text)
  1. 28.01.2013: Added “or any later version” to the GPLv2 reference.
  2. 28.01.2013: Changed “employees of the WordPress Foundation” to “appointees of the WordPress Foundation”.
  3. 01.02.2013: Added “and other entities controlled by Matt” to further specify. See Andrew Nacin’s comment below for details.
  4. 01.02.2013: Added “Though it is unclear what role exactly the WordPress Foundation plays, it is hard to argue it has no influence” for clarification.
  5. 28.01.2013: Changed “The powers that be sees this as a breach of the GPL license and” to “The WordPress Foundation finds that in their interpretation this is either a breach of the GPL or a breach of the additional restrictions”.

About Morten Rand-Hendriksen

Morten Rand-Hendriksen is a staff author at lynda.com specializing in WordPress and web design and development and an instructor at Emily Carr University of Art and Design. He is a popular speaker and educator on all things design, web standards and open source. As the owner and Web Head at Pink & Yellow Media, a boutique style digital media company in Burnaby, BC, Canada, he has created WordPress-based web solutions for multi-national companies, political parties, banks, and small businesses and bloggers alike. He also contributes to the local WordPress community by organizing Meetups and WordCamps.

31 comments:

  1. Using WordPress as a CMS, if you could create web applications such that users would pay a monthly subscription, then you can also make money. You’re not required to distribute the custom theme and plugins that you created, right?

      1. This is exactly where the discussion starts. What is a derivative work? Some people say that if you dynamic link to GPL software then this is not a derivate work, you never included any piece in your own work. You simply instruct the GPL software to do something for you, like you do in a theme. Others say this is not true; the fact that your software needs the GPL software makes it a derivative work. The GPL explanation in the Wikipedia explains it well: http://en.wikipedia.org/wiki/Gpl. Fact is that much software exists in the world that is based on GPL software but is sold with a commercial license. Court cases and settlement so far only exist in situation where a commercial party has indeed incorporated lines of code in their own code.

        To avoid the discussion they often suggest that the GPL software can license their interface under the LGPL license to avoid the discussion. It would be nice if the WordPress API, as described in the codex, would be considered LGPL. Then people can create commercial software like plugins and themes and the discussion would end. Because with the current situation the discussion can go on and on forever. By claiming that everything should be GPL people will not only discuss the GPL license but will also start to point at people and organizations and say “you are not playing fair, you have a commercial advantage!”

        1. Excellent points Klaas. In my understanding when we talk about WordPress an obvious ‘derivative work’ would be something that uses a WordPress function like the_content();. On it’s own this function has no value and does nothing except produce a PHP error. If you somehow managed to build a theme that used the output of the API without at the same time using a native WordPress function I think you are free and clear of the GPL, but at present that does not seem possible.

          1. That is clearly Matt’s vision of the GPL. A theme just uses a few basic functions provided by the GPL. Your never include ANY piece of the WordPress software. No include statements, not a single line copied. Therefor it is not a ‘derivative work’. You see you can bend this any way you like. Problem is that many people have a solid believe they are right. Truth is, nobody is right. You can interpret it any way you like.

          2. There is room for interpretation, yes, but the GPL makes a clear distinction between derivative works and works based on the output of a GPL application. Logic dictates that ‘derivative work’ refers to any work that is bound by and reliant upon functions in the GPL application while works based on output refers to any work that takes output and does something to it but otherwise is able to stand on its own two feet. Like I said previously, a theme without WordPress will return nothing but PHP errors. If on the other hand you built an application that took for instance the RSS feed or some other feed from WordPress and then parsed it, and if that application was able to run without that input, you would be free and clear of the GPL. I think in a court of law my interpretation would hold up, but that’s pure speculation on my part.

  2. I think the comment about Matt’s (or WPF) interpretation of GPL is wrong. They have specifically stated that their guidelines go above and beyond GPL and never suggested otherwise. Regarding the Caputo-gate, WPF say Envato are in breach of their guidelines, but not GPL (which is correct).

    To clarify GPL license regarding packaging GPL and non-GPL (from license text)

    A compilation of a covered work with other separate and independent works, which are not by their nature extensions of the covered work, and which are not combined with it such as to form a larger program, in or on a volume of a storage or distribution medium, is called an “aggregate” if the compilation and its resulting copyright are not used to limit the access or legal rights of the compilation’s users beyond what the individual works permit. Inclusion of a covered work in an aggregate does not cause this License to apply to the other parts of the aggregate.

    Since images (say) cannot be combined with WordPress to ‘form a larger program’, themes constitute an aggregate. GPL then protects the parts of the theme which do inherit it (i.e. are derivative), but not images, for example.

    As far as I know this is the consensus on what is understood to be the minimum legal requirements (though its never been legally tested).

  3. Very interesting reading, thanks Morten!

    Regarding your example scenario, what if it was changed slightly so that: “The powers that be sees this as a breach of the GPL license and” was replaced with: “The powers that be agree this isn’t a breach of the GPL license however

    Also, have you read the letter from the Software Freedom Law Center posted over on WordPress.org?

    They make a distinction between aspects of a theme that are part of the program and thus derivative, and parts that are considered data and not subject to the GPL.

    These things are significant to note, as both sides of the “war” (sic) agree there has been no breach of the GPL.

    1. I’ve made amendments to the article to incorporate the Envato situation. Keep in mind this is a broader article that is also meant to cover the quite likely event of someone being locked out because of a direct breach of GPL by proxy.

  4. Some not quite accurate points.

    WP license is more precisely “GPLv2 or any later version”, as upgraded from legacy “GPL of unspecified version”.

    To my knowledge there is no such thing as “employees of WordPress Foundation”. The people I’ve seen acting in such capacity are (usually if not exclusively) employees of Automattic.

    There is no “breach of GPL” in this situation whatsoever, even by WPF own standards (see Japh’s comment and link). This is entirely realm of extra-GPL restrictions (which are not a thing in a legal/copyright sense) as promoted by WPF.

    1. @Wycks: I disagree that the GPL is a problem. On the contrary I think the GPL is the cornerstone of what’s happening on the web today. WordPress would not have the market share it has if it was under a more restrictive license. The WordPress Foundation is a whole other issue. I am still looking for info on who are listed as members of the Foundation and how and by whom the board of directors is elected.

      1. @MORTEN RAND-HENDRIKSEN

        Maybe you misunderstood me, I think the GPL is great and the article I linked says exactly that. But by being a ‘loose’ license it often leads to confusion on it’s application. So the question is really, who is applying the terms of the license with regards to WP? The answer seems to be the WordPress Foundation.

        It’s clear from Nacin’s answer that the inner circle are to busy doing cool/important things to be bothered with the minutia of the GPL, and rightly so. But the “foundation” decisions do affect real people, so it seems like it is just Matt or was Andrea acting alone (in the latest themforest issue), who knows.

        1. We’re on the same page Wycks. You are referring to the enforcement of the GPL through the Foundation, and I agree, it is unclear how this happens and who calls the shots. I have contacted various people to get a clearer picture of who exactly calls the shots at the Foundation, who sits on its board of directors, who are members and so on but have heard nothing. Joe Saddington gives a great outline in his WPDaily.co article about the different entities involved in WordPress, and from that you can see there is no publicly available information about who calls the shots internally. This is a serious issue because of the influence the Foundation has and we can only hope someone will step forward with an org chart or at least some information about its inner workings in due time.

          1. The foundation is not (and probably even can not) legally enforcing the terms of the GPL for the WordPress codebase. AFAIK they do not even try to.

            When Matt contacted the SFLC back in 2009 (foundation didn’t even exist yet) he didn’t even provide the correct licensing information.

            Also Matt has removed the copyright statement by the original author in the very early days and kept them removed for years which is highly problematic – not only for the terms of the GPL itself.

            Actually many things have been done to endanger the GPL of WordPress by wordpress.org (owned by Matt Mullenweg) itself.

            However and luckily, Matt Mullenweg publicly is not tired to underline he is in support of the GPL. Good so! Even if this is not always the case with what he does personally, at least there is something transparent you can refer to.

            And I would not care at all about the foundation. It’s just a way to have him save some taxes and get the whole WP business running. If you were him, you would probably do the same.

  5. I have no real comment of substance to add to this conversation, except to say that if you are interested in this sort of discussion, then I highly recommend you read The Cathedral and the Bazaar, by Eric S. Raymond. It addresses many of the points being brought up by various parties (on both sides), and is highly useful to understand the arguments being made as well as the Free Software movement in general.

    I would also recommend reading The Magic Cauldron, with specific focus on the section titled The Manufacturing Delusion (also by ESR), as it very neatly clarifies the concept of “how to sell things which are free”.

    1. I agree Otto. This conversation requires a deeper understanding of business as unusual. I have read a lot of material on the general topic these types of business ideas, but I’m always intrigued by new ideas I haven’t been exposed to yet so I’ll put these on my reading list pronto.

  6. The section titled “But then who calls the shots?” is an interesting read. At a broad level, it is correct. Digging into it, though, I see a few statements that I hope I can clarify, or at least elaborate on.

    The first ring containing the lead developers is heavily populated by employees in Matt’s company Automattic and/or appointees of the WordPress Foundation[2] which holds the WordPress name and logo trademarks.

    The current parameters of the WordPress Foundation are to protect trademarks and support educational initiatives (think WordCamps). It does not sponsor or lead development of the WordPress software itself.

    Automattic doesn’t control the inner circle, either. The lead developers do. (What I’m about to explain is how many open source projects behave.) Matt chose Ryan. Matt and Ryan added Mark. Matt, Ryan, and Mark added Peter. Matt, Ryan, Mark, and Peter added Andrew. Those five added me.

    Those who now work for Automattic didn’t when they were named a lead developer. Contributing started as a hobby for every one of them. Automattic lets them have a day job that supports their own commitment to open source. In some cases they are tasked to working on the project full-time. But they still represent themselves, not Automattic, in doing so. (The disclaimer here being that I collect a salary, from Matt directly, to work full-time on the WordPress project.)

    The innermost ring is probably best defined as what we generally refer to as the core development team — five lead developers and three core developers (Koop, Jon, and Dion). Of those eight, four work for Automattic, and four do not. The next ring of developers include Helen, Aaron Campbell, Sergey, scribu, and ocean90 — none of whom work for Automattic.

    I think “democratic-ish process” is a pretty clever way to describe how decisions are made. But, the philosophy that most open source projects operate under is meritocracy, and that would include WordPress. (Or perhaps it is “meritocratic-ish”, given the nature of having a founder to retains final say in disputes or arguments within the community. But that position, of course, was earned through merit and is highly respected by the inner rings.)

    At present the evolution of WordPress is very much influenced by Automattic and Matt himself, and there is no reason to think this will change any time soon. As the owner and operator of WordPress.com Automattic has a vested interest in WordPress, and by investing heavily in contributions to the core of the application the company is in essence controlling its evolution and future development.

    Some of this is without a doubt accurate. Primarily: Automattic has a huge vested interest in WordPress, which is why it invests so heavily in contributions. They have a lot of say in its evolution and future development, but I think the word control is too strong, and minimizes some pretty incredible and important contributions by many who don’t work at Automattic. Automattic may be a large and important stakeholder, but that doesn’t mean they have a controlling stake.

    In general, the evolution of WordPress (the software, not the overall community or larger ecosystem) is most influenced by a few dozen individuals: Matt, others I’ve named in this comment, and a number of other smart and hard-working people. Yes, a number of companies do influence development, in a largely indirect manner, by sponsoring a person’s time. Sponsoring the direct development of a feature only works if core wants it!) And this plays out in a nuanced way. Many who work at consulting shops have an interest in API development, performance, and flexibility. Those employed by hosting companies typically have an interest in security and in core and plugin updates. Helen is a user interface engineer at 10up, and that’s largely the role she plays when contributing to core too. Peter does a lot of bug-fixing on WordPress.com, and a lot of those fixes happen directly in WordPress core. When you run into something at work, we’d love it if you turned around and helped core. Everyone benefits, including your employer, if your employer supports you in doing so.

    Also, right now, the evolution of WordPress is being channeled through the two people leading WordPress 3.6 — Mark and Aaron. Both run their own consulting shops.

    1. The innermost ring is probably best defined as what we generally refer to as the core development team – five lead developers and three core developers (Koop, Jon, and Dion). Of those eight, four work for Automattic, and four do not.

      Point is, that the inner circle is either paid by or hardly connected to Automattic, Matt, Audrey or something else in this ecosystem.

      Some of this is without a doubt accurate. Primarily: Automattic has a huge vested interest in WordPress, which is why it invests so heavily in contributions. They have a lot of say in its evolution and future development

      It’s a well known secret that Automattic drives most of the decisions about what goes into core and what not. The question that arises after this statement is how many hidden influence other companies may be given via the routes that Audrey (I honestly never heard of that before today) or other parts of the ecosystem offer.

      Yes, a number of companies do influence development, in a largely indirect manner, by sponsoring a person’s time. Sponsoring the direct development of a feature only works if core wants it!

      I’m pretty sure that those developers who work on a ticket and sponsoring their own time don’t fall into this sort of sponsorship. I know at least a dozen of damn good developers who have tickets with full patches, which are no brainers and are rotting in trac since ages. Just to get me right: I’m not saying that this actually happens (how would I know), but reading “(…) by sponsoring a person (…)” gives me a bad feeling that this is actually happening.

    2. This is an important topic and a debate a lot of people are interested in, so I appreciate you adding your voice to the conversation Andrew. I think there’s a lot of confusion out there about how WordPress is managed, and getting a view from the inside of the black box makes a big difference.

      To my usage of the word ‘control’, it has a simple reason: In the event that a feature is suggested that is counter to the interest of Automattic (WordPress.com) or is something Matt is not interested in adding, what are the chances of that feature being included?

      I am making some amendments to the article and linking to your comment to clarify points pointed out.

      1. While I do work at Automattic, I am not paid to work on core. So I do think that my views would reflect that of any WordPress community member; especially since my views have not really changes since joining Automattic.

        I think there’s a lot of confusion out there about how WordPress is managed, and getting a view from the inside of the black box makes a big difference.

        Why exactly do you think that this is a black box? As far as I am concerned WordPress development is as transparent as possible. Between the handbook (which explains more or less what Nacin explained above re: structure), the many make.wordpress.org blogs and the weekly IRC chats, anyone has the ability to follow WordPress development and contribute to WordPress.

        What company you work for or who pays your salary doesn’t make a difference in regards to your ability and power to contribute to the project.

        1. I’m referring to the final decision making. As someone else noted in the comments, there are many examples of situations where things are submitted or suggested and then simply written off or ignored with no explanation of why this is. On the more general level, I’m not saying it is impossible to find out what’s going on. What I am saying is most people don’t know because it requires quite a lot of work to dig out the information, and unless you are deeply embedded in the dev process it is hard to keep track of what’s going on. It is a transparent system with so many abstraction layers that it is opaque to most people.

  7. For people who want to read more on what is a ‘derivative work’ and how thin the GPL license is when it comes to plugins (themes are also plugins): http://www.law.washington.edu/lta/swp/law/derivative.html. A ‘simple topic’ that is surprisingly difficult! The final answer can probably be found in FAQ section (topic plugins) of the GPL license:

    If the program dynamically links plug-ins, and they make function calls to each other and share data structures, we believe they form a single program, which must be treated as an extension of both the main program and the plug-ins. This means the plug-ins must be released under the GPL or a GPL-compatible free software license, and that the terms of the GPL must be followed when those plug-ins are distributed.

    Because there is a clear interaction and sharing of data structures in themes and plugins it forces GPL for all the PHP code in themes and plugins. CSS and Images is a different story, they can be sold under a commercial license. So Matt is right when it comes to the GPL discussion. Question left is “why does he/they want to control this environment so much”? It would be so nice to make the API in the codex LGPL and see what the world would produce…

  8. It is a strange situation to say that I could sell a theme but its then out of my control for what the user does with… It would make support a pain if changes were made, but great for a user as they have full control over a product… I suppose its like buying a laptop. The product has warranty in its original factory state, if i upgrade the ram, warranty would only be valid if I put the original back in… The same with creating theme’s and supporting them for WP. Nice read.

  9. You wrote: “This is fundamentally different from general commerce and normal software licenses.”

    Actually it is not. Most commercial licenses / terms are reciprocal – exactly like the GPL. The difference is, that the GPL is enforcing Freedom for the user, while most commercial licenses are designed to restrict the user.

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