It absolutely does. This is why you guys – and the FSLF – do all the hand-waving about “combined at execution” which is legally irrelevant. The law analyses only what is actually distributed – not what is executed.

Mark, I’ve brought this point up to you multiple times, and you’ve yet to provide a satisfactory response.

The advantage of WordPress is partly why it has so many plugins, so many themes, and works so well. Consider this: If WordPress required modifying the core, this would still not require that people push those fixes and changes back up to WordPress source. By creating a system where it is easier to see the benefit, more people helped create the ecosystem and community of what WordPress is today. Many would have simply created their own web sites as they saw fit and never contributed or used WordPress.

Personally I prefer 2,3 clause BSD or MIT license. No viral nature there and everyone can use the code however they want. That is what freedom is all about =).
Except for stuff I sell which is proprietary.

That being said, I have to disagree with the prevailing opinion by the leaders of the WordPress community. IANAL, and legal precedence can and may disagree with me. For that matter, my limited understanding of copyright law is limited to U.S. law, so the situation could be radically different in other countries.

See the Copyright Registration for Derivative Works article at the US Copyright Office website for some casual acquaintance with derivative works.

Ok, done with the disclaimer.

Now, from this article:

Yes, valid and convincing points indeed, except none of his points qualified until after a theme is distributed. The GPL v2 is a distribution license, after all. Until a theme is combined with WordPress, none of his points are valid.

This really gets very close to hitting the nail on the head for me. I say “close” because I would say it this way:

Yes, valid and convincing points indeed, except none of his points qualified until after a theme is distributed with WordPress or containing WordPress code. Until a theme is combined with WordPress, and distributed as a combined work, none of his points are valid.

As my novice legal eyes see it, unless a piece of software is distributed as one work with another, or substantially containing material from another work within, it isn’t derivative, period. Function names, hook names, and trivial programming structures (such as the loop), do not constitute copyrightable material. There is legal precedent on interoperability (see http://www.eff.org/cases/lexmark-v-static-control-case-archive for instance).

After all, I could write from the ground up a PHP content management system that used the same function names, hook names, etc., plug the theme in, and have a completely different work. Think Mono vs. Microsoft’s .NET framework (threatened by Patent, not copyright). Think Samba vs. Windows SMB stack. Merely interoperating with an API does not make you derivative. Now if Novell starts distributing Microsoft’s .NET libraries with Mono, or the Samba team starts distributing copy-pasta, they’ve got a problem.

I do think theme author’s should use the GPL, because I believe in its freedoms, and because I respect the community we serve. Other authors may disagree, and so long as they are not plagiarizing, unfortunately, that is their right. Remember, the GPL doesn’t govern the end-user’s using the software. If the end-user combines your theme with WordPress for their personal use, that has nothing to do with you.

I’ll close with a bit of the GPL v2 itself:

These requirements apply to the modified work as a whole. 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. 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.

John

Jacob asked that I remove his comment. He didn’t feel he represented himself well. “Rumbling, heated emotional and irrational arguments. I’m still learning brevity.”

As I’d hate for anyone to accidentally mis-represent themselves, particularly on such a touchy and somewhat confusing subject, I’ve gone ahead and deleted his comment.

[/EDITORS NOTE]

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

So, calling the_content() within a Theme does not constitute infringement, while wholesale copying the code that WordPress core uses to define the_content() would constitute infringement.

What about a replacement file for WordPress core? It replaces a core WordPress file completely.

Where does this core WordPress file go?

In fact, it “goes” nowhere. It remains right where it started. All that changes is that the interaction mechanism calls a different file (or a different function) altogether.

Nevertheless, none of this happens until the Theme is combined with WordPress core. A Theme, on its own, neither incorporates, replaces, nor modifies anything in WordPress core.

Say that it doesn’t have large chunks of WordPress code, it just has action/filter calls, and calls to WordPress core functions. It’s adding menus, it’s removing WP filters, it’s modifying widgets, etc.

None of the actual filtering, extending, etc. happens until the Theme is combined with WordPress core.

I think that punishing WordPress for having a flexible plugin system is unfair.

How is WordPress “punished”? The follow-on creative expression of additional Themes (and Plugins) actually helps WordPress, by expanding its market demand.

If people had to modify core WordPress files to add new functionality or disable existing functionality, it might be more clear that distributing those modifications constituted making a derivative work.

And if people were distributing modified core WordPress files, such files would (much more likely) be derivative. (Even here, such derivatives might be considered to be fair use. See the Sega v. Accolade fair-use assessment.)

The protections in GPL derived from copyright law are quite narrow and specific. Likely, stronger/wider protections would require patent protection.

But what if instead, they just distribute their patch? The result is the same. Have they made an end-run around the GPL?

It would depend on the content of the patch itself. But, this is where the static-vs-dynamic linking argument enters the discussion. In the end, it still depends on the nature of the distributed code. If it incorporates copyrightable expression from a protected work, then it is infringing. If it does not incorporate copyrightable expression from a protected work, then it’s not.

Likewise with WordPress: if a Theme contains nothing from WordPress core other than function calls and filter/action hooks – none of which is copyrightable expression – then it is extremely doubtful that a court would determine it to infringe upon WordPress’ copyright.