... but templates are a special case, because they are combined with data provided by users of the application and the combination is distributed. So, we recommend that you license your templates under simple permissive terms.
_ --- "Frequently Asked Questions about the GNU Licenses" www.gnu.org
As I mentioned in my post "Themes versus Modules" there are I believe valid reasons and means to support allowing Themes to be excluded from the automatic GPL "infection" currently required by Drupal. On this page I hope to be able to formulate a specific question that can be asked of the lawyers. I have included one to start but I leave it to the community to determine if it is ready to be asked or needs further refinement ...
I am a developer, not a designer, but I have been doing a LOT of reading on the issue of Drupal Themes and the GPL. The motivation for this research is based on the well-documented issue that Drupal is plagued by a persistent lack of high-quality Themes and from what I have read one of the apparent causes of this is the inability to build a viable commercial market for Drupal Themes as WordPress and Joomla have. Professional designers need to embrace Drupal and many would if they could commercialize their designs without their work being tainted by the GPL but that is not allowed under the current Drupal licensing rules because they contain Code.
High quality Drupal Themes are very little about code (even though they require some) and much more about image/design/art ... they are about the "look & feel" of a website and when properly implemented should be unconcerned with type of content or the ways in which that content is created. Yet as long as the Drupal community insists that Themes be treated the same as Code (aka Modules) the problem of building a strong and diverse Drupal Theme base will continue to relegate Drupal to 3rd Place behind Joomla and WordPress. An exception for the GPL needs to be made and I believe it can be made as I will outline below.
I want to say something about Modules here. Speaking as a developer with 25 years of work in the IT world I am greatly concerned about my intellectual property rights but even so I personally do NOT think that Drupal Modules should be granted the same exceptions as Themes. This would make it far too easy for proprietary modules to gradually siphon off the established code base and eventually shatter the open source nature of the Drupal developer community. I will not use this article to debate that view but I needed to express it so that this page can focus on the issue of allowing Themes to be excluded from the GPL.
Now one possible solution to this problem would be to write a proprietary template engine (for argument let us say it is written only in Ruby or Perl), a Drupal "bridge" or "wrapper" Module for interfacing with that engine, and then building new Themes for that engine thus bypassing the GPL taint. While such a solution is technically possible and legally sound (IMO - IANAL) it is far from desireable since it would add needless processing overhead to achieve the same results we already have. This is not a likely solution.
Another possible, and much more likely, solution may be found in a significant item I wish to add to this discussion, an item which comes from the FSF organization's own official GPL website, to wit:
I am writing a website maintenance system (called a “content management system” by some), or some other application which generates web pages from templates. What license should I use for those templates?
Templates are minor enough that it is not worth using copyleft to protect them. It is normally harmless to use copyleft on minor works, but templates are a special case, because they are combined with data provided by users of the application and the combination is distributed. So, we recommend that you license your templates under simple permissive terms.
What this FAQ basically says is that an exception to the GPL for Theme templates is very possible. So, here is a question for the lawyers:
GENERAL CONCEPT IN A NUTSHELL:
Can Drupal add a GPL exception clause for NEWLY CREATED Themes if that exception is NOT applied retroactively ?
Can a notice be posted on drupal.org by the Drupal Association to the effect of:
Effective MM/DD/2011 (hereinafter "Effective Date") any Drupal Theme package (templates & data) created on or after the Effective Date (as determined by the date of the first public distribution as an installable package) are eligible to use the following license exception to the GPL:
... (here the lawyers insert TBD exception language, see below) ...
All Drupal Themes created prior to the Effective Date are not eligible for this exception. Any Theme which is a derivative work of another Theme is subject to the licensing terms of that original Theme.
Nothing in this exception shall be construed as to prevent the creators and/or current copyright holders of any eligible Drupal Theme to permit said Theme to be voluntarily licensed under the standard GPL terms.
As a special exception to the GPL, any HTML file which merely makes function calls to this code, and for that purpose includes it by reference shall be deemed a separate work for copyright law purposes. In addition, the copyright holders of this code give you permission to combine this code with free software libraries that are released under the GNU LGPL. You may copy and distribute such a system following the terms of the GNU GPL for this code and the LGPL for the libraries. If you modify this code, you may extend this exception to your version of the code, but you are not obligated to do so. If you do not wish to do so, delete this exception statement from your version.
The final exception language, which would have to be worked out by the lawyers, ought to include language that covers the following provisions for all "eligible" (new) Themes:
- Themes may include HTML & CSS as well as similar "layout" coding.
- Themes may include SWF, AS2, AS3 and similar "Flash" related files.
- Themes may include any kinds of image files such as JPG, GIF, PNG, etc.
- Themes may include any kinds of sound files such as WAV, MP3, OGG, etc.
- Themes may include any kinds of video files such as AVI, MP4, MOV, etc.
- Themes may include sub-themes and/or sub-templates.
- Theme source code is not subject to the GPL requirements/restrictions.
- Theme distribution is not subject to the GPL requirements/restrictions.
- Themes may include calls to Drupal base code, modules and libraries to access & format data requested by a Module.
- Themes may access any Drupal content or data in READ mode in order to present data requested by a Module.
- Themes may *not* CREATE, UPDATE or DELETE any Drupal content or data with the exception of the Theme's own "settings" variables.
ONE FINAL NOTE: I chose to post this topic as a wiki page rather than as a discussion page hoping that the language would evolve to the point that the lawyers could be asked a rational question. Nonetheless if it is possible to ask about the above "GENERAL CONCEPT IN A NUTSHELL" now that would be great.