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There is a wordpress theme I am modifying to create my own derived work. This original wordpress theme has the GPLv2 licence in it's root directory, so I assume that the entire theme is GPL code.

There is a particular php file which has the following written in its first few lines:

// This code is protected under Creative Commons License: http://creativecommons.org/licenses/by-nc-nd/3.0/

Is that legal for them to make a part of the code under a more restrictive license? The CC license referenced is more restrictive because it prohibits derivative work, but that is exactly what I am doing is making a derivative work.

So here are my two questions:

  • By having the full GPL (version 2) licence in the root of the theme's directory, is that a legally binding way of saying that the code is licensed under the GPL2?
  • Is that legal for them to make that file licensed under that particular CC license?

Ultimately, what I care about is this: I want to make sure that what I am doing is technically legal :)

EDIT:

None of the source files actually say that it is under GPL; except the theme does include jQuery and jQuery plugins (under MIT and GPL2) as well as thumb.php which explicitly says it is under GPL2.

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4 Answers

up vote 1 down vote accepted

There are three possibilities:

  1. The author of all the code under the GPL license crafted an exception to permit the code to be combined.

  2. The author of the all the code under the CC license crafted an exception to permit the code to be combined.

  3. Someone with no authority to do combined GPL code with CC code. The distribution is (most likely) unlawful as the GPL does not permit distributing derived works with any portions under more restrictive license.

Unfortunately, you can't really be sure of anything but the licenses on the specific parts of the code, so you should try to comply with all of them. I think that's possible so long as you don't redistribute the code. If you need to redistribute it, you have a problem and should seek real legal advice.

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Since this is a wordpress theme, by merely activating that theme, am I "distributing" the program (and therefore must also provide the code if asked for it)? –  Alexander Bird Aug 2 '12 at 18:47
    
@SethAlexanderBird: No, because that's the ordinary use of the work. At least in the United States, you don't need a license to use a work you lawfully possess. –  David Schwartz Aug 2 '12 at 19:08
    
Let's say what they did was illegal (releasing both licensed parts combined). If I redistribute both parts combined as well, then am I held responsible for illegal distribution, or can I essentially shift blame to the author of the original wp-theme? –  Alexander Bird Aug 2 '12 at 19:08
    
Also, If I simply delete the CCed code (because I don't need them at all anymore), I assume that's much more clearly acceptable, correct? (and thanks so much for your help!) –  Alexander Bird Aug 2 '12 at 19:09
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@SethAlexanderBird: Then you should be okay. That's definitely what I would do if it's not too difficult -- separate the code by confirmed license, pick the set that contains the largest amount of the code you need, and try to work around the missing pieces. –  David Schwartz Aug 2 '12 at 19:17
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From what I understand, what they did is technically not legal, and the GPL license trumps the referenced CC license.


According to http://www.gnu.org/licenses/gpl-howto.html:

Whichever license you plan to use, the process involves adding two elements to each source file of your program: a copyright notice (such as “Copyright 1999 Terry Jones”), and a statement of copying permission, saying that the program is distributed under the terms of the GNU General Public License (or the Lesser GPL).

And they did not do that. However, the inclusion of thumb.php immediately makes the whole theme ("program") under GPL according to http://www.gnu.org/licenses/old-licenses/gpl-2.0-faq.html#MereAggregation:

If either part is covered by the GPL, the whole combination must also be released under the GPL

Therefore, I can safely know that the GPLv2 license trumps anything else for the whole theme.

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NO! This is seriously incorrect and will get you into legal trouble. Say Jack wrote the code under the CC license and Jill released it as the theme with the GPL license. Jill cannot change the license on Jack's code. Nothing anyone else can do can change the license on Jack's code. Since Jack only ever licensed it under a creative commons license, that's the license it's still under. You can only ever get a GPL license from the original author (the GPL says this in section 6) so if the author didn't place it under the GPL, it isn't under the GPL. –  David Schwartz Aug 2 '12 at 5:19
    
David Schwartz's comment nailed it; the GPL does NOT trump the other licenses. –  MatthewKing Aug 2 '12 at 7:37
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If the license is compatible then there's no reason why not: several GPL releases (for example, most of the id Software game engines, who you would expect would be particular about getting this right) combine code in this manner. The owner of the copyright for a GPL work is also allowed to define special exceptions that can allow this for incompatible licenses; see: http://www.gnu.org/licenses/gpl-faq.html#GPLIncompatibleLibs and http://en.wikipedia.org/wiki/GPL_linking_exception.

IANAL, etc.

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Thanks. However, the problem is that the included code is not GPL compatible. That's why I think it's not ok. –  Alexander Bird Aug 2 '12 at 2:34
    
Check the second part of my answer - there is a solution for incompatible licenses covered here, with the stipulation that the special exception to allow linking must be granted by the copyright owner of the GPL code. –  Jimmy Shelter Aug 2 '12 at 10:37
    
Thanks. Unfortunately there is not a specific exception stated which permits the CCed code to be combined with GPLed code. And I don't think there is an exception for the other way as well. –  Alexander Bird Aug 2 '12 at 19:07
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"This original wordpress theme has the GPLv2 licence in it's root directory, so I assume that the entire theme is GPL code"

Not necessarily, the GPLed code should say so in each source file. There may be other differently;y licensed code in the same directory, themes/icons/tutorials/samples etc might be licensed differently.

The GPLed source code probably has a comment saying "See copying.txt for licence", so you would expect a copying.txt in the directory. The copying.txt doesn't confer any license by being there

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If none of the php files say that it is under the GPL, do you think that a court of law would accept the assumption that all code not saying otherwise will be under GPL? –  Alexander Bird Aug 2 '12 at 18:58
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@SethAlexanderBird: Perhaps to refute the argument that your copyright violation was intentional, if that's plausible under the circumstances. But no more than that. (Some jerk could distribute a copy of the Linux kernel that also included an AVI of The Dark Knight Rises. If you receive such a copy, you're not going to get far arguing in court that the movie is now distributable under the terms of the GPL.) –  David Schwartz Aug 2 '12 at 19:20
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