My recommendation (like you imply) would to ignore the vocal minority and try to focus on what people like Matt Mullenweg and Jane Wells post on the topic.

I think 2 facts we can agree on are;
1) you’re allowed to sell your GPL plugins and themes – but the GPL distribution rules apply

2) to get your theme in the wordpress extend repository it needs to be GPL – otherwise you will need to self host it

3) for anything else don’t ask me

I also found this very interesting. But then I find most things Ian Stewart has to say as interesting:
http://themeshaper.com/premium-theme-release/

http://en.wikipedia.org/wiki/Copyleft#Viral_licensing

Yes, the FSF doesn’t much like the term, but it seems fairly apt. Got a better metaphor for the GNU’s viral clause?

I do not know how gnu and/or attorneys would answer that. I have been trying to keep my own opinions out of this as much as possible.

If I had to, I might venture that CSS+images that a theme extends to admin would be hard to construe as an original creative work available for copyright anyway as they tend to just add a few buttons that appear in many cases seamless with the admin interface. In other words, are people really looking to hold copyright to some grey buttons and input fields as an original creative work?

I probably shouldn’t even answer this. Yes, there is a lot of grey area with this issue. And no, I don’t know the answers. My post was not even about my opinion, just answers based on gnu/SFLC attorneys. The only thing that seems to be clear is: in the case of themes; images+CSS linked to as data does not need WordPress to function can have separate licensing. However, that also assumes that those items are unique and original and available for copyrights. But if one takes and uses another design, the new work isn’t really a new work and isn’t copyrightable in any case…from what I understand.

Again, I am no judge and jury…this is just my understanding…

I actually agree with everything you said. This is the problem with a topic this huge. Yes, I completely left out all kinds of really important stuff because it is simply a blog post trying to address two very specific questions…not the gpl as a whole. Obviously “infect” is not a legal definition, just common metaphor for licensing restrictions.

I completely agree. WordPress cannot infect jQuery for example just because it links to it. I thought about mentioning those other things, but was trying not to become too verbose and hopefully it is easy to extrapolate from CSS to javascript. Like CSS, jQuery doesn’t need WordPress to live, can be linked to anywhere and pretty clearly it is outside of the issue. And yes, I do not even think the HTML issue is cut and dry. But with HTML, my point is that I don’t think the tag structure is usually valuable enough for people to care about independent from CSS/javascript, they are used by all in very common structures and even outside of GPL I don’t know if they would constitute original works…if that makes sense.

And yes, they SFLC is only an opinion…I just give it more credence than the opinions of bloggers and have tried to keep my opinion out of it. Because there is no judicial judgments to clarify, relying on gnu docs and SFLC attorneys as opposed to personal opinions is just the best authority we have…and I do think what they have said makes sense…and I do think one can extrapolate it to apply to javascript and probably some instances of HTML…maybe. And I think because of that, it answers common questions of theme designers…although admittedly does not answer other important questions plugin developers may have, or components that live outside a theme.

I also hope I did not confuse anyone. I tried very hard to focus on the questions, cite my sources which people can choose to rely on only if they want and even disclaimed: “I do not claim in any way that this is a comprehensive or complete explanation of these questions”

I am just plain tired of people thinking of a theme as one comprehensive work which is either GPL or not. My whole goal was to point out that is most likely *not* true and there are various components that can and should be treated differently including having specific licensing references by the creators.

The FSF gave their opinion (note: “opinion” only) that the “classic” and “default” themes that are distributed with WordPress are derivative works and would therefore need to be licensed under the GPL if they were distributed by 3rd parties. Those are the only themes they commented on. This does not mean that other themes are necessarily derivative.
You have made a great effort to describe a complex issue and I hope it doesn’t confuse people. It would be great if the application of the GPL was as cut and dried as you make it out to be, but its not – if it was then FLOSS communities would not have spent years arguing over how to interpret the license