I don’t think ad-supported sites are considered commercial sites, but I don’t think I’ve ever seen it argued either way. I couldn’t find that WoW-Pro was selling anything (while Wowhead has an online store), but I haven’t spent much time on the site at all.

Saying wow-pro is not a commercial site is like saying that wowhead is not a commercial site. I’m not trying to get wow-pro into trouble because that’s not possible as wow-pro is already in the clear, both Zygor and Tekkub already said that they have no issue with wow-pro at all, I’m simply pointing out the double standard against our site and wow-pro because clearly we’re both commercial website. WoW-pro is just a different business model. I’m an internet marketer and I have several website just like wow-pro, it creates passive income without the hassle of dealing with any customer or any obligation to provide support.

WoW-Pro receives money from their advertisers, not from users. The guide is free to download, and they don’t get paid per download. If Tekkub’s issue is commercial use (I don’t know if it is, but that’s the only explanation I can think of), then they’d in the clear. But they’re apparently developing a new addon thanks to Zygor, so this point is moot.

You probably shouldn’t use the donations as a defense. You chose to donate. It wasn’t any sort of licensing fee or royalty. It’s like a thief claiming that he wasn’t stealing because he left money behind. I’m not saying that’s the case here, but this particular defense makes it sound like it.

As for WoW-Pro, they’re not receiving money from their users in exchange for the addon (i.e. selling it), which you were (and which Tekkub had accepted).

1. Tekkub gave me permission to specifically sell TourGuide with my guides commercially (I chose those words for a purpose) with the only condition to not sell TourGuide ‘alone’.

TourGuide was also hosted on GitHub.com if “forking” wasn’t allowed then he clearly sent the wrong message by hosting it there and allowing the public to fork his work.

2. Tekkub was upset regarding the “forking” of TourGuide, I took action with removal of the public link and clearly stated I was still distributing it in my members area. I offered solution such as licencing, and modification of TourGuide, he said it was a ‘posibility’ but he chose not to pursue..

We were reasonable by offering solution and we were still within our rights to continue distributing as we still have permission, if our final email was unacceptable to Tekkub, then he should clearly state it. Which he didn’t and he admited “chose not to pursue it“.

3. Tekkub continued to take our donations, and also help us further in modifying TourGuide for our distribution in Dec 09. This further proves that there was no problem with us modifying and distributing the guide.

4. If there was limitation to modifying TourGuide such as renaming then it is not clearly stated that’s what a license are for, wow-pro.com have done the exact same thing I did and infact took it a step further by renaming the function names. Tekkub also encourage the renaming “In short, you **** with it, find a new name for it.” . Arguements that wow-pro is not a commercial or non profit website is invalid, the large amount of free traffic that wow-pro received by distributing tourguide adds to their profit of banner advertising. Trust me there are profit to be made with banner ads. Further Proof that Tekkub is not oppose to people modifying and distributing TourGuide.

I’m not against wow-pro in anyway but there’s a double standard between us and wow-pro. Even now Tekkub is not opposed to wow-pro distributing TourGuide but completely against to what we have done.

Also further proof that Tekkub is not oppose to people modifying and distributing TourGuide.

There is a good reason for the double standard against us and that reason is Zygor anyone will defend their new boss or risk getting fired and not get paid.

…..

Sometimes people use the term “public domain” in a loose fashion to mean “free” or “available gratis.” However, “public domain” is a legal term and means, precisely, “not copyrighted”. For clarity, we recommend using “public domain” for that meaning only, and using other terms to convey the other meanings.

Under the Berne Convention, which most countries have signed, anything written down is automatically copyrighted. This includes programs. Therefore, if you want a program you have written to be in the public domain, you must take some legal steps to disclaim the copyright on it; otherwise, the program is copyrighted.

http://www.gnu.org/philosophy/categories.html
…..

and for reference:
http://www.opensource.org/docs/definition.php

……

While Tekkub didn’t state an explicit license to you, his work is copyrighted and to use it outside of the bounds of how he chose to release it, a license agreement would have to be obtained with regards to re-branding and selling for profit his work before you could legally do so. Regardless of what miscommunication you may think occurred, “I didn’t get an answer so the answer must be yes” is not a valid position to take.

You claiming that he turned his back on a community is rather disingenuous as well. Even if there were some community collaboration in part of the work, he still holds the copyright to the piece as a whole. Legally, each member of the community that contributed holds copyright only to the specific code that they wrote. They could, if they so chose, assert their rights to those specific pieces of code. I doubt, however, that they would be more forgiving of your misuse of that code than Tekkub has been. Some of them may have been even less inclined to be lenient with you than he was.

The situation here is that you and any of the others that used his work could have gotten a license from him to obtain a “clean” version of his TourGuide core to use with your guide files. If you didn’t wish to deal with the hassle of this, you could also have written a tie-in addon similar to FlawsGuides worked and sold that to your customers while providing a link to download TourGuide to use it with.

The problem seems to be that you not only distributed TourGuide in an unlicensed fashion, but you re-branded it under your own name and then sold it as your own product. You may, in fact, have originally disclosed that your guide was using TourGuide to be usable. It seems that Tekkub was willing to ignore transgressions until you (and some others) started re-branding the TourGuide core under your own name and selling it as your own work for profit.

Ultimately, I don’t blame Tekkub for the choice that he made. Contracting an exclusive license to Zygor, who had never used his work, is a smart move as it solves his problem of dealing with the multitude of people illegally misusing his code by allowing Zygor to handle that aspect for him.

Your crying foul at having the consequences of your own illegal actions abruptly thrust upon you is much like the thief that fell through the skylight of the house he was attempting to steal from and suing the owner for the medical bills. Quite frankly, you are lucky that Tekkub didn’t pursue legal action himself and let a court decide what his share of the profit that you made off of his work should be. Given how you claim to “give until it hurts”, you might find it difficult to come up with the money to pay him what you owe him. Don’t bring up donations, either. Donations are a completely separate mechanic from a licensing fee or royalty shares.

Fact is that lots of unofficial version other than ours is out there and Tekkub know about all of them and as he said on his website chose not to pursue it. Terms and Condition of use should be made clear before download and/or included with the files, as we are not mind readers.