Regarding our Cease and Desist letter to Automattic

(wpfusion.com)

147 points | by kemayo 20 hours ago ago

51 comments

  • glenstein 19 hours ago

    It's puzzling that in Automattic's reply to the cease and desist, they argued the listing of WPFusion was fair use. However, they copied it to their commercial Wordpress site and offered it as part of their "business plan" and also their paid premium plan.

    Their letter makes it sound like they are "identifying" it, like a bird watcher pointing to a bird or something. But they copied, re-hosted it and are, or were, offering it as part of the value proposition for which people should pay. I'll admit I'm fuzzy on fair use as anything more than a general concept but it's hard for me to square that one.

    • IncRnd 18 hours ago

      It's actually very straightforward. The reply was by the General Counsel of Automattic and was intended to reduce Autmattic's liability. To that end, the first thing that was stated is that they had done nothing illegal.

      • bigiain 17 hours ago

        The Narcissist’s Prayer (by Dayna Craig)

          That didn’t happen.
          And if it did, it wasn’t that bad.
          And if it was, that’s not a big deal.
          And if it is, that’s not my fault.
          And if it was, I didn’t mean it.
          And if I did, you deserved it.
        
        I for one and very much starting to feel like I'm in an abusive relationship with WordPress...
        • bzmrgonz 16 hours ago

          In automattic's defense, there are not many tools to fight open-source corporate freeloaders. We've seen these free-loaders before, AWS's freeloading on elasticsearch and others. Usually the free-loader eventually realizes that it needs in-house expertise to customize and build bespoke solutions to their customer base, in which case, why not contribute back right, but we've never seen a freeloader like WPEngine, where they change the code to disable what would otherwise be gotten for free, in addition to diverting revenue stream to their own coffers.

          • chii 14 hours ago

            > there are not many tools to fight open-source corporate freeloaders.

            and by design. These are freeloaders because open-source software's intention is to allow for people to freeload off it!

            Why should "corporate" freeloaders be considered any different than just a regular freeloader? Just because they have some money?

            If said software do not wish to have any freeloaders, don't use licenses that allow it. Use something like dual licenced AGPL or use a non-opensource license.

            As an example, Epic's Unreal Engine is not open source, but source available. It's licensed so that hobbiests can use it free of charge, but high revenue generating projects must pay. It's a good license, as it makes their intentions completely clear and on the outset.

            > AWS's freeloading on elasticsearch and others.

            if elastic doesn't want it, they could've followed the same licensing model as Unreal Engine. But of course, elastic wanted the exposure and network effect of a truly open source license, but wanted to collect when someone manages to make money off it.

            • bawolff 12 hours ago

              > and by design. These are freeloaders because open-source software's intention is to allow for people to freeload off it!

              Preach!

              I'm tired of people complaining about other people using open source software in the exact way it was intended as "freeloaders".

              If you want people to pay you for your software, then just make it proprietary. There is nothing wrong with proprietary software if that's what you want to do. But if you make it open source, you can't complain when people use it in an open source fashion.

              • dylan604 12 hours ago

                What do you call software that makes the code available to view, but has a license that forbids actually doing anything with the code other than run it?

                • chii 11 hours ago

                  So a proprietary license, and the software is called proprietary software.

                • nahnahnahnah 4 hours ago

                  CockroachDB created what they call Business Source Licensing intended to leave the code open but prevent what AWS did to ElasticSearch.

                • kemayo 3 hours ago

                  You’ll often see “source available” used for that.

            • 13 hours ago
              [deleted]
          • marcus0x62 7 hours ago

            You’ve never seen a shared hosting provider that makes config changes to limit the use of resource-heavy features? You… Must not have seen many hosting providers.

          • serial_dev 13 hours ago

            It’s open source, there are no freeloaders, not AWS, not WPEngine, they just take what everyone else takes according to the license.

            Either you have a legal case, or you don’t, everything else is just yapping. If you want to protect your business against “freeloaders”, choose a licensee appropriately.

            And yes, changing the code they run is fair game, especially if nobody cares about that feature. Let’s not pretend that whatever they disabled is such a core feature of WordPress, but somehow basically none of their users cared or care about it even to this day.

            Showing up a decade later, saying “nice business you got going on here, it would be a shame if something happened to it, better give me 8% of it, to make sure it is protected” is something I’d expect from a mafia movie, not blog hosting.

          • bigiain 15 hours ago

            " ... where they change the code to disable ... "

            This is blatantly untrue. WPEngine have repeatedly said they launch WordPress code that is bit for bit identical to the zip file published on wordpress.org. That's a claim that could _very_ easily be disproven if it were not true.

            I don't think WPEngine are entirely blameless with regard to the WooCommerce Stripe plugin stuff. But I have two thoughts about that, firstly I think it's sleazy of Matt/Automattic to have slipped in referral monetisation codes into a payment plugin in the first place, and secondly the GPL explicitly allows WPEngine to change the code however they choose anyway. And the "nuclear war" Matt's declared and is fighting is all around WordPress trademarks, not WooCommerce or the Stripe plugin code anyway. Both sides come out looking sleazy over Stripe commisions here though.

            The ElasticSearch/Redis/MongoDB vs AWS things are quite different in my opinion. They weren't purely relying on trademarks to "Al Capone" Amazon into handing over money they're not entitled to. Instead they all relicensed their code using something the OSF no longer considers "Open Source" using instead things like "Business Source Licenses", which they could do because they owned all the copyright to all the code, either having written it themselves or having contributors assign copyright to them. Matt/WordPress/Automattic _cannot_ do this, because they do not own copyright in all the code. WordPress itself was a fork of previously existing B2 code who's authors still own copyright but granted anybody (including WordPress) a license to use it under GPL2+ terms. I am almost certain (but do not know for sure) that WordPress does not have a copyright assignment agreement from everybody that's written new code that's made it's way into WP core (and that wouldn't have helped anyway since it was all built on "viral" GPL code so any changes also needed to be GPL2+). I'm 100% certain WordPress have no copyright ownership over almost all of the 60 thousand odd plugins on wordpress.org.

          • AlotOfReading 16 hours ago

            Am I misunderstanding your point? Changing default configs from upstream is an utterly normal practice in webhosting. That's why config options exist and having someone else make reasonable choices is one reason why you might choose a host.

          • cscurmudgeon 14 hours ago

            A though: any open-source project which worries about "corporate freeloaders" despite its license is not truly open-source.

    • zugi 19 hours ago

      > However, they copied it to their commercial Wordpress site and offered it as part of their "business plan" and also their paid premium plan.

      That part is absolutely fine and is covered in the original article under "Wait, aren’t WordPress plugins open source and free to modify": ( https://wpfusion.com/business/regarding-our-cease-and-desist... ) You can copy, fork, and even "sell" free software if you like, as long as you comply with its license terms.

      This is a trademark dispute, not a copyright dispute.

      The trademark dispute here is the use of the phrase "Advanced Custom Fields" in Automatic's marketing and on their website, as illustrated in the picture just above that section of the article. Automatic's core response is probably correct in a technical detail: e.g. in marketing for "Open Office Sheets", you are allowed to say "Open Office Sheets is better than Microsoft Office Excel because..." Even though "Microsoft Office Excel" is trademarked by Microsoft, you're using the name to draw clear distinctions, not to imply endorsement, nor to confuse people into thinking you're selling their product.

      It would be an interesting legal case because even though Automatic may have been using the phrase in an allowable way, the result did create confusion in customers. Customers aren't reading the full sentences of the article, they're using Google to find something, clicking "buy", and then later contacting WP Engine for support for something they bought from Automatic. That's proof of the confusion that Automatic created.

      • glenstein 18 hours ago

        >The trademark dispute here is the use of the phrase "Advanced Custom Fields" in Automatic's marketing and on their website, as illustrated in the picture just above that section of the article.

        Yes, I read that section. But two things. I feel like that's restating the same point I was already making as though it were an elaboration, which is frustrating. Yes, they are using the disputed terms, not just "Advanced Custom Fields" but also "WP Engine".

        And secondly, it may be true in some notional sense that doing such a thing as using the term just in a comparative reference to something else (e.g. OpenOffice vs Microsoft Office) is fair use. But that's not what Automattic is doing, which is precisely why it's puzzling that invoking that sense of "fair use" is their response to a charge that is about their use in a much more specifically commercial context.

        • bigiain 17 hours ago

          > The trademark dispute ...

          Is something Matt started, when he suddenly went after WPEngine for trademark use after decades of their use - during which time Matt praised and even invested in their business.

          And he has publicly admitted trademark use not the real issue he has, but that he's using it as leverage in his attempt to extort WPEngine out of a huge amount of money that he's not legally entitled to - telling The Verge what he's doing is like Al Capone getting arrested/charged for taxes.

          The last sentence in the OP is 100% true: "But as long as Matt’s motivations with WordPress are tied to his profits at Automattic, he can’t be trusted." (I'd go further and say there's pretty much nothing Matt can do now to regain the trust in him that's been lost.)

          “In my role as owning WordPress.org, I don’t want to promote a company, which is A: legally threatening me and B: using the WordPress trademark. That’s part of why we cut off access from the servers.”

          From: https://www.theverge.com/2024/10/4/24262232/matt-mullenweg-w...

          “The analogy I made is they got Al Capone for taxes,” Mullenweg says. “So, if a company was making half a billion dollars from WordPress and contributing back about $100,000 a year, yes, I would be trying to get them to contribute more.”

      • duskwuff 18 hours ago

        > Automatic's core response is probably correct in a technical detail...

        The legal term for this is nominative use [1] - sometimes "nominative fair use", although it's unrelated to the doctrine of fair use in copyright law.

        [1]: https://en.wikipedia.org/wiki/Nominative_use

      • yarg 17 hours ago

        "Advanced Custom Fields" is a trademarkable term?

        Beyond the point that custom fields are pretty much always advanced, there has to be a point at which a term is so fundamentally non-specific that it cannot be subject to trademark.

        I just think it's bloody madness sometimes.

        • onli 12 hours ago

          In the last discussions about that it was stated the trademark wasn't granted. Exactly, too generic. ACF is the active trademark.

        • zugi 16 hours ago

          Single English words cannot be trademarked. However, if you string two of them together, and demonstrate that you are actively using the phrase in commerce, you can get the phrase trademarked for use in a particular domain, e.g. computer software.

          Three words is even better.

          Note that a tractor manufacturer could still trademark "Active Custom Fields" for agricultural equipment, because it would not be confusingly similar to the "Active Custom Fields" software.

          Also trademarks have to be renewed every 5-10 years and you must show that you are actively using it.

          • boolemancer 16 hours ago

            > Single English words cannot be trademarked.

            Um... Apple? Shell? Alphabet? Chevron? Target? Caterpillar? Oracle? Orange?

            • docdeek 13 hours ago

              I think the key is that these are trademarked for a particular domain. If I tried to sell software as Alphabet I'd be shut down, but my kid's teacher doesn't need a license to teach the alphabet.

    • anon7000 19 hours ago

      I mean. The situation is actually very simple. WordPress.com has a “business/pro” plan that lets you install plugins. Lower level plans do not allow that. (WordPress.com was initially just a big multisite with everyone’s blogs running off the same WP instance. That would only work securely if you disable custom code.)

      So this paid business plan is just normal WordPress hosting where you get plugins and advanced features like SSH access.

      WordPress.com also has a re-skinned admin experience that is more modern looking than wp-admin.

      Within the past couple years, WordPress.com extended that modern skin to the plugins page. It’s (as far as I know) data from the core plugin repo, just with a more modern look/experience. In fact, the WordPress.com code for this is totally open source.

      I’m not 100% sure how that’s not fair use — any WP host could do that to the plugin page of WP that they install. Other hosts just tend to be more hands off.

      • chucky123 19 hours ago

        This also makes matt's initial claim about wpengine being a bastardized fork hilarious since wordpress.com is even more hacked up.

        Also, you cannot install most plugins on wordpress.com unless you're on the business plan.

  • legitster 19 hours ago

    I'm interpreting this as a somewhat tongue-in-cheek response to what Matt is doing. Matt has been trying to walk back all of his claims about open source and private equity and pretend it's all a trademark dispute. Well, he doesn't have a leg to stand on for that argument either.

    And the whole trademark thing is... frankly just incredibly lame in the first place. "Going nuclear" and trying to launch a public crusade is one thing if there was an actual moral high ground at play. But even if you are in the right... average people do not care about your trademark claims. Do it with lawyers behind closed doors.

    Attacking your userbase and buying out employees over... a trademark? Shutting your mouth was free, as is admitting you were wrong.

    • alfiedotwtf 17 hours ago

      This.

      I could understand a trademark issue if he had done this the second WP Engine opened business, but it is WAY too late to claim they are now defending their trademark. His legal council must be externally contracted yes men getting paid by the hour because there is no way a lawyer with equity would have said this was a good idea. I also suspect he did all this without talking to legal first :slapforhead:

  • pavlov 12 hours ago

    Is Wordpress dying? This kind of infighting is usually a sign of a shrinking market and stagnating product.

    In haven’t used Wordpress in probably fifteen years. Back then its main quality was ease of setup on prevailing hosting environments of the day. Everything else was a horrible mess that was patched over with plugins that did far too much with too little support from the system. It felt like the MS-DOS of web publishing.

    Did they ever graduate to a “Windows NT” stage, or is today’s Wordpress still the same PHP hairball?

    • ceejayoz 4 hours ago

      > is today’s Wordpress still the same PHP hairball?

      PHP has moved on, but WordPress hasn't.

      Lots of long-EOLed PHP 5 shared hosting installs sitting out there, and they take great strides to keep things compatible as a result. No composer, global classes all over, etc.

  • kemayo 20 hours ago

    Tl;dr Wordpress.com has a sketchily-authorized copy of the Wordpress.org plugin directory that’s used as a funnel into signing up for a Wordpress.com hosting account. This was causing the author problems because it has better google rankings than the .org, and they were getting support requests from people who thought buying a plan on Wordpress.com meant they got the premium version of their plugin. So they C&D’d Automattic to remove them from the copied directory.

    This is only related to the recent WP Engine drama insofar as the author says it made them lose trust in Matt.

    • lapcat 19 hours ago

      > This is only related to the recent WP Engine drama insofar as the author says it made them lose trust in Matt.

      I think that's understating the situation a bit, because the WP Engine drama was the provocation for the current action. Very Good Plugins learned of the WP Fusion copy in September 2023 but did nothing about it until October 2024.

      "I didn’t want to start a legal dispute with Automattic and possibly damage our reputation. And, generally, I trusted Matt. I assumed he had a competent legal team that had already reviewed the legality of copying our plugins, and that he was acting in the best interest of the community."

    • Aurornis 19 hours ago

      I’m amazed that Matt got away with claiming the Wordpress.org/.com duality for so long. Recent events have revealed that the dividing line between the two is virtually non-existent and Mullenweg used whichever organization was most convenient for pushing his agenda at the moment. M

      Mullenweg’s recent attempt to dunk on DHH for not capturing enough value from the Rails community is the most succinct mask-off moment of the recent events, in my opinion. He thought he was making a great point by criticizing DHH for not being extractive enough from the rails community. Instead, he only revealed his true thought process about how being at the center of an open source community should be a license to extract from said community. Really puts recent events into perspective.

      • bigiain 17 hours ago

        At least for me, the ".com .org duality" looked OK, because the existence of The WordPress Foundation as a non profit which owned trademarks, and the as it turns out incorrect assumption that they owned and ran the .org platform.

        The revelation that Matt considers he personally owns wordpress.org outright and can do whatever he chooses there even if it's diametrically opposed to the Foundations stated goals, dramatically changes the risk evaluation in relying on anything to do with Wordpress.

      • ookblah 14 hours ago

        not that it should matter in "principle", but the stupid thing to me is that he's not some small time developer trying to make ends meet. he's extracted quite a bit from from it... in the hundreds of millions, but it's still not enough.

        i could even understand if he suddenly went full value extraction mode. there are ways to do it ruthlessly and coldly, but his actions have this angle of being petty as well.

        his blatant disregard for WP users while trying to gaslight them into thinking he's their champion, general "assholery" (for lack of a better word) to those who have been in the ecosystem for a long time who dissent.

        i guess the mask is truly off.

      • glenstein 19 hours ago

        >Mullenweg’s recent attempt to dunk on DHH for not capturing enough value from the Rails community is the most succinct mask-off moment of the recent events, in my opinion. He thought he was making a great point by criticizing DHH for not being extractive enough from the rails community.

        Is it possible to do a short version or medium version summary of that, and/or a link where I can find out more?

        • unsnap_biceps 19 hours ago

          HN discussion can be found at https://news.ycombinator.com/item?id=41839864 and contains archived versions of the post that has now been replaced.

        • pevey 19 hours ago
        • x0x0 17 hours ago

          The very short summary is Matt basically told DHH he sucked for not making billions off Rails and patronizingly suggested he get a business coach.

          DHH replied that made him happy / proud, giving a gift like that to the world.

  • colinprince 19 hours ago
  • sroussey 20 hours ago

    Will I get into any trouble for starting a hosting site called WordPress Engine?

    What if I licensed WordPress?

    • ceejayoz 19 hours ago

      Yes; WordPress is trademarked. WP is not. WordPress's trademark policy, until late last month, stated "The abbreviation 'WP' is not covered by the WordPress trademarks and you are free to use it in any way you see fit."

      "WP Fusion" is also, apparently, a trademark.

    • djbusby 19 hours ago

      WordFusionEnginePressCom.org

  • 20 hours ago
    [deleted]
  • 12 hours ago
    [deleted]
  • AlienRobot 17 hours ago

    tl;dr version:

    "Hey, that trademark is mine, take it down."

    "Okay."

    I don't get why there are still so many articles being written about Wordpress drama. There are no gotchas. Nobody can force Wordpress to provide anybody updates for free. You have all the right to enforce your trademarks if you think Wordpress wronged you.

    Somehow, despite all of these articles, I still haven't seen a single one from WP Engine itself. I'm fairly sure they just deployed their own update repository in the deadline they were given and that was it. I have no idea where it will go from here, but I doubt it matters much.

    • docdeek 13 hours ago

      I imagine a reason that WPEngine has been relatively quiet is that they have competent legal counsel who have advised them to remain silent. While WPE has let their lawyers handle things, Matt has refused to shut up and, consequently, has fueled the drama and arguably put himself in a worse position legally.

      • AlienRobot 4 hours ago

        I wonder if they will ever say anything, though. I'm honestly kind of tired of seeing posts about WP drama on several different platforms, and this has been going on for weeks. I had to unsubscribe from #wordpress on Mastodon because almost every post was about this...

        • ceejayoz 4 hours ago

          > I wonder if they will ever say anything, though.

          "Never interrupt your opponent while he is in the middle of making a mistake."