Is Blogging Experiment Breaking the Law?

written by BlogEx on December 10, 2007 in Blog Monetization and Site News with 37 comments

Last night I logged in to Blogging Experiment to set the schedule of posts for this week and noticed a comment awaiting moderation. The comment was from David Peralty, the author behind the popular BloggingPro.com blog. The comment was this:

Most of the code of this theme, as well as the graphics comes from the Blogging Pro Theme which is not GPL, it is Creative Commons. Which means you can’t sell this theme. You are profiting off of code you do not own. A quick look at the graphics, CSS, and even theme structure compared to the Blogging Pro theme will let you know this is the case.

Please do not sell this theme any longer, and I will be contacting the creator of the Blogging Pro theme, Design Disease, as well as the owners of the copyright, Bloggy Network LLC.

Obviously this is not the type of comment that any blogger likes to see. However, I didn’t want to just sweep the comment under the rug as it raises several questions that should probably be addressed.

First and foremost, yes, the Blogging Experiment theme does integrate portions of the BloggingPro theme. However, it is hardly “most of the code.” Our theme has gone through SEVERAL extensive modifications and best I can tell, the only aspects of the BloggingPro theme that remain are the comment images. So, does the use of those images prevent us from selling the theme?

The answer to that question hinges on the type of license the BloggingPro theme was released under. As Mr. Peralty states in his comment, the theme mentions that it is released under a Creative Commons license. Unfortunately for Mr. Peralty and Design Disease, just because you SAY you release something under a specific license, doesn’t mean it actually applies. You see, WordPress is distributed under the GNU GPL license and stipulates that products (including themes) that are based on WordPress be distributed under the GNU GPL license, rather than the Creative Commons license that would prohibit us from selling the Blogging Experiment theme.

But don’t just take my word for it. You know the license that you get when you download WordPress? It states

You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

Also, over in the WordPress forum, Matt Mullenweg states clearly that

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.

In light of all of this information, I’m fairly confident that we are well within our rights to sell the Blogging Experiment theme. However just to be safe, the sale of the Blogging Experiment theme will be suspended until the issue is fully sorted out.

Update (From StudioJMC):

Now that I’ve had time to do a bit of research, get some advice and sleep a bit, here’s what I have:

1. If it was a pure copyright issue, the button graphics would definitely be an issue. The XHTML related to the buttons might be an issue although they’d have to jump through a lot of hoops to prove or justify that. The CSS might be copyrightable as part of the design of the pages.

Since the graphics have now been replaced in the version for sale and the XHTML in question removed, that should no longer be an issue. As several people have stated, the design differs so substantially that no one would confuse the two, so I don’t believe the CSS issue has ever been a valid one.

2. In the case of the Creative Commons license, under the Share Alike 3.0 License which Blogging Pro claims is applicable:

“This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use.”

from: http://creativecommons.org/abo…..e-licenses

So commercial use is clearly allowed under the Creative Commons Share Alike license. If they did not intend to allow commercial use they could have chosen the Attribution Non-commercial Share Alike license.

BTW, the phrase “license their new creations under the identical terms” replies to the terms of the Share Alike license not any additional terms that someone might want to apply.

A credit has been added to the style.css file (that’s where it goes in WordPress themes) of the for-sale version as follows:

This theme was designed by James Cook of studioJMC (http://www.studioJMC.com/) and incorporates elements from the Blogging Pro Theme by Elena G (http://blog.designdisease.com/) as well as elements from the Default WordPress theme by Michael Heilemann (http://binarybonsai.com/) and others.

That is based upon the attribution information in the Blogging Pro theme and should resolve that issue.

3. Of course if the GPL applies, as I still firmly believe, none of that makes a difference.

Speaking strictly for myself and not Blogging Experiment or Ben, I believe I am now in compliance no matter what standard is applied and I feel comfortable resuming sales of the theme when I choose to. Out of deference to the Blogging Pro folks I won’t offer the version with their button graphics.

Update (from BloggingPro):

First off, I want to say that the theme was released under CC-Attribution. With the added text to your CSS, changing the graphics, and whatever else you have done, I don’t see ANY reason why I would want to continue to press this issue, and honestly, I am VERY sorry that it went down the way it did.

All of these exchanges should have been done privately, and they should have been done between myself, you, and Ben.

I am very happy to see that you have complied with the changes I originally asked for. And while I don’t like seeing the theme sold, I do agree that you guys are now within your right to do so.

With this latest change, I would like to put out an olive branch and let you know that despite how everything went down, I would like to mention the Blogging Experiment theme release on Blogging Pro, if you guys are interested.

This did bring up some very interesting and heated issues and discussions, and despite not resolving the bigger issues, I hope I can say that we have reached a conclusion to our back and forth on this whole mess.

Update (from Ben):

Whew. That was quite a bit messier than I had hoped for but in the end it looks like all parties are agreed and comfortable with the Blogging Experiment theme being sold. With that said, the Blogging Experiment theme is once again for sale!