Comment by Otto42 | Hacker News Reader

Comment by Otto42 | Hacker News Reader

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It does actually go deeper than that, but really that's beside the point. Function calls into the WordPress code is enough.

WordPress has a public API... several of them, in fact. A theme doesn't use those, it makes direct calls to internal WP code, and it uses WordPress internal data structures. This is enough to make it a derivative work.

From http://www.gnu.org/licenses/old-licenses/gpl-2.0-faq.html#Me... :

"Combining two modules means connecting them together so that they form a single larger program. If either part is covered by the GPL, the whole combination must also be released under the GPL—if you can't, or won't, do that, you may not combine them.

What constitutes combining two parts into one program? This is a legal question, which ultimately judges will decide. We believe that a proper criterion depends both on the mechanism of communication (exec, pipes, rpc, function calls within a shared address space, etc.) and the semantics of the communication (what kinds of information are interchanged).

If the modules are included in the same executable file, they are definitely combined in one program. If modules are designed to run linked together in a shared address space, that almost surely means combining them into one program.

By contrast, pipes, sockets and command-line arguments are communication mechanisms normally used between two separate programs. So when they are used for communication, the modules normally are separate programs. But if the semantics of the communication are intimate enough, exchanging complex internal data structures, that too could be a basis to consider the two parts as combined into a larger program."

Ultimately, it is a matter of interpretation, but all previous interpretation, including those made in courts of law, pretty much universally agree with Matt on this one. It's very difficult to consider a theme to be a "separate program" when it's deep-linking to internal functions and data structures and it also cannot run independently.

> Ultimately, it is a matter of interpretation, but all previous interpretation, including those made in courts of law, pretty much universally agree with Matt on this one.

There have been no court cases I'm aware of that have dealt with this in the context of a GPL program. There are, however, numerous cases where the code being called was not GPL, and they have pretty much universally ruled that the FSF position is wrong--blob of code X calling into blob of code Y does NOT make X a derivative work of Y.

In the specific context of a GPL program, no, but there is case law backing up my argument. Micro Star v. Formgen for example, held that a Duke Nukem 3D map file (which contained no code or anything else from the game itself) was a derivative work because it referenced artwork and other materials from the game's files.

A Kozinski opinion. Those are always entertaining. Most judges write very dry and formal opinions. Kozinski opens with "Duke Nukem routinely vanquishes Octabrain and the Protozoid Slimer. But what about the dreaded Micro Star?"

A key point from the opinion:

"Micro Star further argues that the MAP files are not derivative works because they do not, in fact, incorporate any of D/N-3D's protected expression. In particular, Micro Star makes much of the fact that the N/I MAP files reference the source art library, but do not actually contain any art files themselves. Therefore, it claims, nothing of D/N-3D's is reproduced in the MAP files. In making this argument, Micro Star misconstrues the protected work. The work that Micro Star infringes is the D/N-3D story itself--a beefy commando type named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime. A copyright owner holds the right to create sequels, see Trust Co. Bank v. MGM/UA Entertainment Co., 772 F.2d 740 (11th Cir.1985), and the stories told in the N/I MAP files are surely sequels, telling new (though somewhat repetitive) tales of Duke's fabulous adventures. A book about Duke Nukem would infringe for the same reason, even if it contained no pictures."

They use that same notion, that the MAP file is encoding a D/N story, in dismissing the claim that it is the user making the derivative work, not Micro Star. It doesn't seem to be the artwork per se that's the problem for Micro Star--it's that it is telling a D/N story.

You know when you take a stance, and you say "What would it take for me to change my opinion on this?" Yeah, this is one of those situations for me. Have you got a cite?

Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. is relevant, as is Sega v. Accolade.

Sega v Accolade is food for thought. I don't think it's directly relevant, dealing as it does with direct copying (and an associated trademark claim, but I'll ignore that), but there are some tangential opinions in there that might have a logical bearing.

Galoob is fascinating - thanks for that, I've not read it before.

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