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A fellow Drupal developer is suggesting that we use themes from a collection of "Premium" paid Drupal themes downloaded from a torrent site on a shared project. It appears that most or all of these themes are derived from GPL-licensed Drupal themes such as Zen and Framework.
Since these 'pirated' themes are derived from GPL software, are they legal for use?
If you want to be 100% clean (and you usually do in a commercial project), you cannot use pirated content on your site. Your defense is based on the assumptions that the authors of Premium themes (a) violated the GPL licence of the original content and (b) will be willing to redistribute their work under GPL licence if they're forced to. Both assumptions may not be true:
(a) - it is perfectly legal for the authors of the original themes to licence their work under GPL free of charge and also licence the very same work to a third party for a fee. Granted, a GPL violation is much more probable, but it's a guess, not a fact.
(b) - even once the GPL violation will be proved for those Premium themes, there's no guarantee the premium content will be automatically licensed under GPL terms. For example, authors of the premium themes can settle to pay copyright damages to original authors, refrain from further distribution, then sue you for unauthorized use of their work.
Whether GPL applies (and to what) also depends on the nature of modifications. Suppose the authors of Premium themes tweaked the JavaScript of the drop-down menu and added custom icons. If they now distribute this theme, they have to release their JavaScript tweaks under GPL, but nothing forces them to put their icons under GPL, and without an explicit license from their side you have no rights to reuse those icons.
If a theme is GPL licensed, then you are indeed free to use it. The GPL license state that even if you receive the software from someone who is in breach of the GPL license, you can still use the software under the GPL license.
You need to be careful though with redistribution: If you don't have the source code, and you don't know a site that distributes the theme legally, then you can't meet the GPL conditions on redistribution, so you may not redistribute.
On the other hand, if the theme was created by modifying a GPL licensed theme, then someone else owns the copyright to those modifications. And you can't just take these modifications. That person should distribute under the GPL license, but nobody can force them to do so. Say I took a GPL licensed theme, modified it (with no intent to ever distribute it), and a thief copied it. You wouldn't have the right to use that theme.
BTW. "Claim ignorance" is a bad idea. If you are ignorant of the copyright ownership of some software then you can't use it.
The GPL license state that even if you receive the software from someone who is in breach of the GPL license, you can still use the software under the GPL license. Not that I dispute it, but can you please quote the specific clause which allows this?
– curiousdannii
Oct 1 '15 at 3:51
secret.c on my drive that contains the GPL header, you have no right to use that, if you steal my PC and get this file. If I gave this file to my friend Adam, you still have no right to use it. Adam has the right to give the file to you. But if he doesn't want to, you still have no right to use it at all. That's the GPL+law
– Josef says Reinstate Monica
Oct 1 '15 at 15:37
Basically, you have no license to use, modify or redistribute the software. Any copyright holder is able to sue you for breach of copyright. Where the software is 100% under the GPL, you have the implied license from the original copyright holder (I think the GPLv3 makes this explicit while GPLv2 relies more on sanity of the courts) to use, modify, and redistribute under the conditions of the GPL (which may be restricted if you are unable to redistribute including the corresponding source code because you never got it).
However, in this case the qualification was "derived from GPL-licensed themes" so this implied that there are other copyright holders involved, and those may choose to sue you for redistributing without license. They may or may not themselves have "dirty hands": if they never intended to redistribute the modified themes but only wanted to use them internally but they got misappropriated by people hacking into their systems, they may perfectly well have obeyed the GPL to the letter but never wanted their own modifications to become public.
In that case, indeed, they might successfully sue you for breach of copyright and get a preliminary injunction ordering you to cease redistribution and/or use. They might alternatively demand that you pay them for a license though that might end somewhat self-defeating as they would be confined to using the GPL. So once you paid for a single license, you'd be free to redistribute an arbitrary number of copies.
There are two situations to consider:
The GPL license itself does state this, but the GNU FAQ says it even clearer:
No. However, if someone pays your fee and gets a copy, the GPL gives them the freedom to release it to the public, with or without a fee. For example, someone could pay your fee, and then put her copy on a web site for the general public.
They could even do so via a torrent website. If this is the case, then it's not illegal at all! (And our society probably needs more of these legitimate uses of bittorrent so that it can't demonise the whole thing.) While they could explain that this is what they are doing in the torrent description, presumably they haven't, or else you wouldn't be asking here.
For example, someone hacks the online store, or an employee of the company releases an unpublished version of the software on their personal site.
This situation is trickier. The GNU FAQ discusses it, but does not give a black and white answer:
If the version has been released elsewhere, then the thief probably does have the right to make copies and redistribute them under the GPL, but if he is imprisoned for stealing the CD he may have to wait until his release before doing so.
If the version in question is unpublished and considered by a company to be its trade secret, then publishing it may be a violation of trade secret law, depending on other circumstances. The GPL does not change that. If the company tried to release its version and still treat it as a trade secret, that would violate the GPL, but if the company hasn't released this version, no such violation has occurred.
If you steal something which is intended to be published under the GPL but has not yet been published, you cannot convey it yourself. Until the software (or the set of patches from an earlier version of the software) have been intentionally published by the author(s), you should not actually consider the software be GPL licensed, even if the source code says it is.
The GPL license cannot be used to escape other legal demands. A related situation is raised in the license itself:
12. No Surrender of Others' Freedom.
If conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot convey a covered work so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not convey it at all. For example, if you agree to terms that obligate you to collect a royalty for further conveying from those to whom you convey the Program, the only way you could satisfy both those terms and this License would be to refrain entirely from conveying the Program.
If the exact version of the software which was stolen can be legally acquired through other means, the FAQ above suggests that it might be legal to convey it further, but it doesn't say so with certainty. Section 9 of the license notes that you do not have to accept the license in order to receive the program. This is something which may need to be tested in court for any more certainty.
It all depends how the "pirates" got hold of them.
Those derived themes are GPL. Whether their authors say so or not, the GPL license on the parent theme requires that derivative works are also licensed under the GPL.
Being GPL software, the authors of those derived themes are required to reasonably provide the source for their work. If the pirates found the source, and compiled the theme on their own (or whatever the theme-making equivalent is - I don't Drupal), then that's legal and they're not actually pirates at all. They can then provide their own copies for free download. If you use those copies, that's legal.
If, however, the pirates somehow stole the theme - perhaps they figured out a way to bypass the paywall for the original download - then it gets messy. Technically, they can't have that software (not because the GPL licensing forbids them, but because other laws do), and thus they can't provide it to anyone else. In practice, though, there's no way to actually prove whether they stole or self-compiled the software (at least not without getting the theme's host involved to see the logs).
You should be OK. If you use them, you can always claim ignorance: if you say that you thought the pirated copy was legitimately generated from source, then you have a reasonable window to cease violating the copyright that was never licensed to you without losing your right to a license. Which is an interesting concept to make sense of.
Images are not. CSS is not. Certain javascript elements are not. If you are working with a proprietary theme it is very likely that the copyright issue is not GPL related at all, but rather is caused by illegal use of design related elements that are excluded from the GPL.
SOURCE: From the official Drupal Licensing FAQ page (I put some text in bold to highlight it)
7: If I write a module or theme, do I have to license it under the GPL?
Yes. Drupal modules and themes are a derivative work of Drupal. If you distribute them, you must do so under the terms of the GPL version 2 or later. You are not required to distribute them at all, however. (See question 8 below.)
However, when distributing your own Drupal-based work, it is important to keep in mind what the GPL applies to. The GPL on code applies to code that interacts with that code, but not to data. That is, Drupal's PHP code is under the GPL, and so all PHP code that interacts with it must also be under the GPL or GPL compatible. Images, JavaScript, and Flash files that PHP sends to the browser are not affected by the GPL because they are data. However, Drupal's JavaScript, including the copy of jQuery that is included with Drupal, is itself under the GPL as well, so any Javascript that interacts with Drupal's JavaScript in the browser must also be under the GPL or a GPL compatible license.
When distributing your own module or theme, therefore, the GPL applies to any pieces that directly interact with parts of Drupal that are under the GPL. Images and Flash files you create yourself are not affected. However, if you make a new image based off of an image that is provided by Drupal under the GPL, then that image must also be under the GPL.
If you commit that module or theme to a Drupal Git repository, however, then all parts of it must be under the GPL version 2 or later, and you must provide the source code. That means the editable form of all files, as described above.
Drupal.org has had attorneys from the FSF (the creators/controllers of the GPL) involved in these discussions and as far as I know those lawyers agree that the Drupal organization's interpretation of the GPL as it related to Drupal themes is legally correct.
"Pirated" is a bit of a vague term, that can lead to a lot of FUD (fear, uncertainty and doubt). It can mean pretty much any number of things, but is quite often used for anything that is a copyright violation.
If that's the definition here, the answer is trivial through tautology. If the software is used in violation of copyright, then yes, it's a copyright violation to use it. Since that rather obvious, I'll assume that's not what your question is. Let's explore some options.
First off, let's dispel some common misconceptions. If someone makes a derivative work of a GPL licensed work, and they distribute it, they legally must do so under the GPL. A common mistake is that people think this means that if they distribute it under another license, they may use it under the terms of the GPL. This is not true. If they violate copyright by not releasing their software under the GPL, this does not automatically make their work GPL as well (but rather, legally undistributable).
This means that the question of whether the creators of the software are legally allowed to distribute it under a non-GPL license is no factor in your question. If you believe this is indeed the case, you could see if you can do something about GPL enforcement (see: What can/should I do when I see a violation to GPL restrictions?). The question on whether Drupal themes are required to be GPL is not in scope of this question (but would make a good and on-topic question).
If they chose to distribute their software under some license other than the GPL, you may not use the software under the GPL. If you received the software from someone who claimed it was the GPL, and you use it in good faith that it is actually GPL, and afterwards it turns out it is not GPL, you will still have to abide by the actual licensing terms. You will not be in legal trouble for willful infringement, but you can't continue to use the software under the false terms that were offered to you.
I can't estimate whether a court in your situation would find that you were acting in good faith or not, but I'd imagine this is not a situation you want to find yourself in at all.
It is however very plausible that the copyright holders of the software sell the software to others under the GPL. These others then may further re-distribute the software without any required fee. If this is the case, then yes, you can use the software under the GPL.
In their FAQ, the FSF has an answer that amounts to that if the software is distributed to anyone under the GPL, and you receive the software from anyone claiming it is under the GPL, you may use it under the GPL whether you can prove the chain of correct license transfers or not. They're not very definitive about it, but this doesn't seem to be a big problem.
