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Some Thoughts On Software Licensing

Out Of Date Warning

Languages change. Perspectives are different. Ideas move on. This article was published on July 16, 2010 which is more than two years ago. It may be out of date. You should verify that technical information in this article is still current before relying upon it for your own purposes.

This past week saw a huge dust-up over the issue of whether or not WordPress themes are GPL. It’s not my goal to rehash the debate, or even to discuss it in particular; instead, my goal is to share some thoughts I’ve had about software licensing, and in particular, licensing going forward as a result of the WordPress theme dispute.

The reality of the debate is that many, if not most of the participants are software developers of some kind – that is, they derive a considerable amount if not the majority of their income from developing applications of some kind. Given this liklihood, it makes much sense that they have a “dog in this fight” as much as anyone else. And so, the community is doing what it seems to do best: disagreeing, sometimes civilly, sometimes not, and trying to work out a solution.

There are certainly lessons to be learned, and there are really two things going forward that matter when software licensing is concerned.

1. When choosing a license, interpretation and general feelings about the license matter.

The Free Software Foundation has taken a stand that themes are GPL, and has even gone so far as to assert that interfacing with GPL API’s is itself grounds for automatically attaching the GPL to a piece of software. Regardless of how you feel about this particular argument, there’s an important point to be considered: when selecting a license, it’s important to understand how the community, the authors of the license, and others are going to interpret that license, for better or worse.

This is important. It’s important because how others feel about the license your software is released under will affect its adoption and contribution rates. If a large segment of whatever community you’re a part of decide that the license is restrictive or unusable, they may adopt other software, write programs to compete with yours, or simply work around you.

There’s an inherent challenge to making use of preexisting works and developing new products, since those preexisting works may obligate you to make use of their license. Thus, the decision of which libraries, applications, algorithms and products to use becomes of essential value to the developers of open source applications.

While I know a few individuals and projects working on or considering dumping the GPL, the recent dustup is unlikely to move WordPress or other large platforms away from the GPL as their licensing choice (indeed, WordPress seems more adamant than ever that GPL is their vehicle). Still, if the dustup has succeeded in anything, it is pushing people to reconsider the interpretation and feelings others have of the license choice, which is never a bad thing.

2. Legal matters, where licenses are concerned, are largely unsettled. Wise counsel is necessary in the software development world.

If there was a strong legal precedent for how the GPL applied to WordPress, it’s themes and plugins, and other components, there would have still been a dustup this week but at least it would be easier to know who is right. The reality is that while licenses can change frequently and the software development world has changed considerably in the last ten years, legal disputes can take decades to wind their way through the court system, especially in the United States. To make matters worse, no GPL-related case has ever made its way to an appeals court, much less the Supreme Court. And while there have been GPL-related rulings in Germany, I bring up only the United States here because WordPress and Chris Pearson are both United States-based.

This lack of legal precedent presents a conundrum to software developers: without a court’s decision on the matter of licensing, every single opinion, from the FSF to Chris Pearson is just as legitimate as the next. Does the doctrine of fair use apply? Is it a derivative work? Is the GPL even legally enforceable? These questions are, for the most part, unsettled.

Technology’s fast pace, combined with the relatively slow pace of the court and legal system, means that these questions are likely to become more unsettled, not less. Combined with the mounting costs that litigation can present, and software developers must learn that having wise counsel and a solid understanding of their legal footing is a must when developing products or working with existing, open source tools. This does not apply solely to the GPL; it applies to all licenses, whether open or closed.

Conclusion

The fervor over whether or not the Thesis theme is in violation of the GPL will die down and eventually be forgotten, probably by the end of next week. But the reality is that the questions raised during the dispute remain unanswered, and the issue of licensing open source applications remains problematic, unresolved, and potentially dangerous for software developers. We may never have a final, complete ruling or any case law as to what the GPL actually means, or what any other license actually implies; it is therefore up to us, as a community, to adopt common standards and understandings about what our licenses mean and what our rights and responsibilities are under those licenses.

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