Howdy, Matthew Charles Mullenweg from the lawsuit here.
One thing I'm surprised they disclosed is on page 35 that Heather Brunner at WP Engine was interviewing for a job at Automattic. That's why we were spending so much time together 1:1 without her team there in the meetings I posted here: https://automattic.com/2024/10/01/wpe-terms/
They lied that it was to run WordPress.com, though, she wanted to be the Executive Director of WordPress.org for Automattic, a position that was held by Josepha.
That's not what page 35 says at all. Check out page 36:
> 92. Mullenweg’s premise was false, as WPE’s CEO had never interviewed with or
negotiated a job offer with Automattic. To the contrary, back in 2022 Automattic had asked if she
would be interested in running wordpress.com, but she politely declined.
(edit: I have no idea who is right, but it's just not correct to read page 35 as saying that)
She was interviewing November 2023 to January 2024. She declined the WordPress.org role on January 26, 2024. I even invited her to my 40th birthday on Jan 11, another text message she decided not to share.
"she wanted to be the Executive Director of WordPress.org for Automattic"
But you own and run and finance WordPress.org personally, as you've revealed and talked about numerous times in the last few weeks. I don't follow, how can Heather apply for a job with Automattic to be the Executive Director of a website you personally own?
Automattic employs ~100 people that work full-time on WordPress.org. I can appoint them into positions on WordPress.org, if I think that's appropriate.
Your response to this complaint is going to look very interesting.
Also, a note for the audience: Quinn Emanuel is one of the premier (and most expensive) litigation firms in the US. Partners in their litigation department run $2000/hour or more. Associates cost almost $1000/hour. WPEngine apparently has deep pockets.
Since you're trying to get WP Engine to pay for "WordPress" trademark, by contributing back to open-source, because you feel they should, since it made them rich, I was wondering how many open-source projects did Automattic contribute to financially? Aside from WordPress, I'm sure you stand on the shoulders of giants such as Linux, nginx, MySQL, JavaScript libraries (or maybe you should call it ECMAScript, because you're not paying any trademark fees), etc.?
For the love of god, for your, your company's, Wordpress's, open source's sake, stop talking about any of this in public and let your lawyers talk. Dont you have lawyers? Or you dont listen to them?
Hi Matt. I wanted to ask, do you think that the actions you've taken will improve the WordPress community in the long term? What do you think are the likely outcomes for WordPress users and contributors, regardless of how this conflict ends?
The WordPress license (GPLv2) says that if you attempt to sublicense the software or otherwise distribute it under different terms, you forfeit your own license to it:
"4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance."
WordPress is itself a fork, with no copyright assignments, so Matt has no ability to change the license.
Given this, is it legal for WordPress.com to continue using and distributing the WordPress software as we speak?
This was a separate agreement from their GPL license, which of course allows them to fork. Sorry it's not clear from the term sheet, but this was about them forking our Stripe extension to replace the attribution from us to them for WooCommerce sites hosted on WP Engine. Stripe is also looking into this, as it's spammy.
They (i know it's you but easier to not personalize it here) do not own all the rights to the software themselves. For the parts they do not own, they have no rights other than what they got through GPLv2.
Those rights are conditioned upon them not trying to sublicense/etc the software in a way that conflicts with GPLv2.
The agreement wasn't about their license to the code, it was about their license to the WordPress and WooCommerce trademarks. They could agree to not do things allowed under the GPL, like replacing our Stripe attribution, it's their right to. Or not.
"The agreement wasn't about their license to the code,"
Maybe you misread it (or miswrote it i guess)?
it says:
"WP Engine will cease and desist from forking or modifying any of Automattic’s,
WooCommerce’s, or its affiliates' software (including, but not limited to plugins and extensions) ..."
It could not more plainly say that they cannot fork or modify software.
1. Matt just claimed it wasn't about software at all. So we've now moved on to saying "well it's about code, but not GPL code".
Progress, i guess?
2. The agreement does not limit it to non-GPL code in any way, so i'm really not sure where you are getting that from. The plain terms cover all of automattic (et al) software, which includes the stuff that has GPL code in it.
The normal way such an agreement would be written to cover only non-GPL pieces would be to say it does not attempt to modify or change rights you get elsewhere, blah blah blah.
It includes no such clause.
If you've got meaningful parol evidence that it was meant to cover only non-GPL code, great, let's see it.
(since the agreement is both badly written and not fully integrated, it would be valid to do so).
First, something general - one thing to keep in mind is that open source folks think of these things as license violations/etc, but that's not actually a thing, legally.
Breach of contract and copyright infringement are. That is how a claim would be analyzed. Not as a "GPL violation".
Why is this relevant?
Well, you really have to think of this stuff as contracts to use a given copy of software, and not as some abstract thing licensed or not.
This is fairly relevant because:
1. The general view on GPLv2 is that you gain a shiny new license every time you receive a new copy from someone else. In other words, you have signed a new contract.
So while your rights may have been terminated the existing contracted copy (and you would be liable for distributing or ... that one), if you just get a new copy from someone else, congrats, new contract.
This is supported by the license:
"6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions."
Let's assume this was not true
2. Wordpress is actually GPLv2 or later. GPLv3 has a notice and cure period. Under GPLv3, they would still be within the cure period (unless i screwed up the timeframe :P), and would have not lost a license yet.
3. GPLV3 has a more complex termination mechanism to try to deal with notice, cure, and the issue in #1.
In short, worst case, if they are claiming to use it as licensed by GPLv2, it would be fairly easy to cure the ability to distribute new copies. They could do nothing about violations that exist in existing copies (and would not be allowed to continue distributing those).
I realize how insane this sounds, since it's basically saying "These bits over here are red but these same exact bits over here are green", but that's life in the legal realm sometimes.
For sure, if they do nothing, explicitly, they would be in bad shape, legally, in the worst case.
GPLv3 is a more complex question.
Also: there are those that strongly disagree with the view in #1 and believe you lose all rights forever unless they are reinstated. Rather than try to say who is right or wrong, i tried to give you where general consensus seems to lie.
That is not something you should take to court, it's closer to "if you surveyed 100 open source lawyers what would most think"
> Why is this relevant? Well, you really have to think of this stuff as contracts to use a given copy of software, and not as some abstract thing licensed or not.
If you think about it in that way, copyright infringement is out of the picture completely because of the statutory exception.
17 U.S.C § 117 - Limitations on exclusive rights: Computer programs
(a)Making of Additional Copy or Adaptation by Owner of Copy.—
Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1)that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2)that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
That statutory exemption was created to resolve one court case and one worry:
1. A holding that you can commit infringement simply by loading a program into memory even for maintenance purposes. This was MAI v. Peak, one of the earliest real court cases on software copyright infringement. It was unfortunately followed by lots of courts.
2. A worry that creating tape backups/etc of computers, and copies of software cd's (since they don't last forever) was copyright infringement independent of anything else.
I hope Matt can supply his legal team with conversations that would somehow justify his behaviour. From my (incomplete) reading of the complaint, he (Matt) does indeed look very "petulant". It's almost like he's intentionally self-destructing, which is why I hope for his sake that he has more tangible evidence to share, especially after reading section 201.
So they're "cherry picking" things that you said which make you look bad, which are true and accurate - and that's a "smear campaign".
While you are telling lies about trademark violations and extorting money specifically from WPEngine and have publicly admitted you're not doing that to anyone else that provides Wordpress hosting? And you've used terms like "war" and "nuclear option" when threatening the lies you subsequently told?
And somehow you still think _you're_ the good guy here?
:boggle:
Just resign. Make the WordPress Foundation into everything you've pretended it is over the years, including rightful and permanent owner of the trademarks and .org domain, and complete seperate from you personally and Automattic and it's related businesses. _Maybe_ that'll save WordPress. Maybe...
Man... You are still talking on the internet publicly, obviously without any lawyer checking out what you say before you post comments. You will inevitably end up posting a lot of things that can make you look bad or sink the case for your side. Just stop talking about this anywhere online and offline. Let the lawyers talk.
What's sad here is that this dispute isn't likely to make Wordpress any better, but rather send money to lawyers and reduce enthusiasm for the OSS project.
I’m an arm length removed from all this drama having not used Wordpress in a while, but to be honest this opinion feels overblown. To an outsider, it just looks like some legal issue between two entities irrelevant to my concerns on whether I’d use or contribute to Wordpress in the future. Something that happens between corporations all the time
My guess is there will be some settlement, one party will walk away with a better position than before, and that will be that
Matt seems to have jumped on WP Engine essentially because they were making a lot of money. So now, any other company that is making a lot of money (or hoping to make a lot money) with Wordpress may wonder whether Matt will target them too.
What's the criteria? Is there some exact revenue or profit number a company needs to stay under to avoid this sort of attack? Does Matt only get mad at hosting companies, or do other companies making a lot of money with WP (e.g. big creative agencies) need to be concerned?
Without clarity, it's hard to quantify the risk. And companies might decide to shift their CMS work elsewhere rather than deal with it. The drama undercuts one of the big advantages of WP: it was free and permissively licensed.
I agree it might not have much effect on random people using or contributing to WP. But open source projects actually need a lot of investment to grow and survive. And anything that depresses that investment can depress the overall project trajectory.
One of the two entities completely controls the plugin ecosystem and wielded that control against the other entity (the largest WordPress host except, possibly, Automattic itself) to block them and all of their customers out of the ecosystem over this dispute.
That's why this matters to average developers. WordPress is the plugin ecosystem, and messing around with it does as much damage to the WordPress ecosystem as left pad did to npm—it's not unrecoverable, but it's a major setback that could quickly become unrecoverable.
I believe WPEngine is actually larger than Automattic. This is an attempt to get the bigger (and likely better) company to pay the bills of a company that took a bit too much VC money and now needs the revenue to support it.
And what is more sad is that it really appears that the WordPress figurehead is to blame.
Matt has made so many unforced errors in the last month, in addition to revealing, one way or another, that he basically considers WordPress, the .org, the .com, the Foundation, and Automattic, all to be synonymous, which is news to a significant portion of the community, let alone to the incorporation and other founding filings.
He claimed in an interview there's context to the texts that makes it look better, but he hasn't actually released that context, just said that it exists and he wishes WP Engine would [0]. I'm having a hard time imagining context that would make this not extortion, and if there really is context that makes it better I'm unsure why he's not releasing it himself. He's certainly not gone into no-comment-on-legal-matters mode, so his silence there speaks volumes to me.
What would you like me to answer? I haven't doxxed any private texts from other parties like they have. I've only been releasing things I've said or sent.
"May 2024 May 30: Automattic shares first term sheet with WP Engine via email."
Share the term sheet that you sent to WPEngine in May. The lawsuit suggests that this term sheet is to do with a (now cancelled) partnership between WPEngine and Automattic in regards to WooCommerce. Your blog post suggests that it's a term sheet regarding WPEngine paying the 8% trademark fee for WordPress. You can significantly undermine WPEngine's argument by proving that you presented a WordPress trademark licensing term sheet to them months ago.
Sure, it was a few text messages at the end of a months-long negotiation about a licensing deal. We posted the timeline and the final term sheet here: https://automattic.com/2024/10/01/wpe-terms/
WP Engine's business is built on violating the WordPress and WooCommerce trademarks, 8% is typical for a franchise fee. They confuse customers in the marketplace who think they're official WordPress.
He polls his audience and 54% of the thousand people watching thought WP Engine was an official thing, based on visiting their website that day. They have since updated their website a lot, including rewriting customer testimonial quotes without permission:
If you offer someone a contract, they stall for a few months, and you show up at their house with gasoline and a match and threaten to burn their house down if they don't agree to sign the contract, you're guilty of extortion.
The context you need to share isn't that there exists a document that you wanted to sign and that they knew existed before you made the threats, the context you need to share is context that makes those texts not look like threats to drag their name through the mud in a massive smear campaign if they didn't agree to sign.
No one is disputing that you might have been in the right until September. It's your actions in September that you need to account for.
> Sadly, instead of supporting open source with $5 million, they each will spend 10 million on lawyers.
I think both sides more or less see this as a case of standing up against a bully — they may lose out in the short run (in terms of money), but they think that they will discourage future bullying by fighting back.
I’m not sure if either side is right, but that’s why they both drew a line in the sand, imho.
To go to Matt’s for profit entity, for his for profit entity to direct as they wish.
“I demand you give resources to your for profit competitor for them to use as they wish. And I’ll pretend to be wearing my non-profit, independent hat while demanding it.”
Silver Lake and WPE's legal attacks may impact my ability to provide free services on WordPress.org in the future, especially things like Slack or forums that are grounds for discovery. I hope not, though. Going to fight this with everything I have.
Matt, I mean this sincerely: get yourself checked out. Do you have a carbon monoxide detector in your house? You're behaving so manically that it's hard to come up with a reason for this sort of behaviour unless there's something medical going on. The barely-veiled threats to take down WordPress.org (did you forget Cloudflare offered to host it for free?) aren't a rallying cry, they're a last gasp. WordPress is your life's work, don't ruin your meaningful contributions to the world. Go to a 10 day silent retreat, or buy a ranch in Montana and host your own Burning Man... anything but this. You're making a bunch of anti-establishment nerds side with Private Equity, that's how bonkers your behaviour is.
Thanks, I carry a co2 and carbon monoxide monitor. Co2 where I'm at is 572.
I do own a place in Montana, and I meditate several times a day. I have not threatened to take down WordPress.org. WPE's preservation requests do complicate things, legally, though, for the Slack and forums that W.org offers.
Both Cloudflare and Fastly have reached out offering CDN services to W.org, which we're considering. Cloudflare also serves a lot of WP Engine. We do like controlling our infrastructure, though, for a variety of reasons, and have run it without problems or downtime for 21 years. Currently the only outside vendor we use is Slack/Salesforce, which donates free Slack Pro accounts for 49k users. (I think that would cost ~5M/yr.) We also use some Github, which is free for open source.
Your chance to do that was before you threw a grenade into the WordPress ecosystem and injured hundreds of thousands of innocent WordPress developers over a {trademark|giving back|general bad vibes} dispute. No one here is buying your attempts to pawn responsibility for your actions off onto WP Engine.
They may have legitimately been the bad guys until a month ago, but you've thoroughly stepped into that role now and you're making no effort to step back.
I don't think folks want you to provide those free services, is the thing. I think most folks want those housed inside a foundation that can seek industry support in the normal ways. A lot of people seem to have thought they already were.
The alleged extortion of the WP Engine CEO seems absolutely inexcusable regardless of what you think of the trademark dispute. Impossible to imagine a valid justification for telling someone you'll tattle to their investors and the press if they don't accept a job offer.
Is it just me who took a double take at the very first name?
WPE called the heavy cavalry -- Rachel Kassabian from Quinn Emanuel? oh boy. Remember Perfect 10, Inc. v. Amazon.com, Inc which found thumbnail versions of copyrighted images for search engine purposes is fair use? That was originally against Google and she was Google's lead counsel.
It's hard to even imagine what a best-case scenario looks like for Matt at this point. Putting aside the matter of righteousness, his business is pretty much chalked for professional applications at this point. B2B partnerships are done - anyone with lawyers on-staff are going to get shoulder-tapped and asked to find another hosting solution. Smaller customers have all the more reason to bleed out to competitors, and the plugin/theme ecosystem is going to see the writing on the wall better than anyone else. Qui bono? Who is Matt "protecting" from harm, really?
I just don't understand in any sense what the end goal was here. On the one hand, I feel like I must not understand because I lack an emotional connection to the project. In the other hand, I feel like a stoic approach is the only one that makes sense. It's a baffling tempest-in-a-teapot that must have extra details I don't understand. If all this occurred with no hidden motives, it would be a shockingly wasteful decision.
If it's any three things, it's about money, money, and money.
Zooming out a bit, Automattic acquired Tumblr and like all those before it seems to be choking on it.
Competitors like Wix, Squarespace, WebFlow and Shopify are all nipping at WordPress' marketshare.
I don't know what WordPress.com's stats look like, but blogging is out of sytle. New cool kids want the new black. That is to be social media influencers. Along the same lines, the WordPress Community is "aging out". Events online or off there's too little "youth" engaged and excited about the product.
In shoet, the pie isn't what it once was. Matt looked around the room, saw deep pockets (i.e., WP Engine) and made a go for it. That was a poor decision. Seeing himself as a cult leader who would get unwavering support from his cult (aka The WordPress Community) was another mistake. People are fatigued and enough them have stopped drinking his Kool Aid. There are pockets of support but certainly not what it used to be. Many WP people are anxious to move on from the Mattopoly.
OTOH maybe the majority of WP users are not blogging.
It's anecdotal but I know about a dozen WP users first-hand (and maintain a couple of those installations) and none of them use it for blogging. It's mostly for marketing websites and shops with WooCommerce.
I think this is significant. As I caught up on this conversation I've seen it interwoven with saltiness about "The Block Editor", which I understand is a new WYSIWYG editor replacing the classic editor under deprecation and which an increasing part of the community have been feeling alienated and forced by. It's been Matt's baby and WP hasn't been taking the community feedback to heart.
"What Defendants’ statements and assurances did not disclose is that while they were publicly touting their purported good deed of moving this intellectual property away from a private company, and into the safe hands of a nonprofit, Defendants in fact had quietly transferred irrevocable, exclusive, royalty-free rights in the WordPress trademarks right back to Automattic that
very same day in 2010. This meant that far from being “independent of any company” as Defendants had promised, control over the WordPress trademarks effectively never left Automattic’s hands."
Already on the second page, a mind-blowing revelation. This is gold. What a time to be alive.
Of these, the ones that are interesting are basically 1, 2, 3, 4, 5, 10.
The CFAA claim here is actually basically an extortion claim (plus other throwaway general claims) framed in CFAA terms.
See 18 U.S.C. § 1030(a)(7)
This is actually somewhat uncommon to see :)
However, it seems likely to be dismissed (without prejudice) or need to be amended since it looks like it doesn't plead the claim properly.
"(g)Any person who suffers damage ... may maintain a civil action ... A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i).
They do not actually explicitly allege one of these factors is present, and it reads like it is a necessary element to maintain a civil action claim.
Now, mind you, the factors are present (It's stuff like 'you have to cause at least 5k in damage), but the response is going to state they've failed to plead a claim by not explicitly meeting all the necessary elements.
> Mullenweg failed to disclose this exclusive licensing arrangement between his nonprofit (the WordPress Foundation) and his for-profit (Automattic) in the WordPress
Foundation’s tax filings with the California government, claiming that there were no “contracts ... between [WordPress Foundation] and any officer, director or trustee ... or with an entity in which any such officer, director or trustee had any financial interest”.
It certainly sounds so, but I went looking for the source and I'm not sure what to look for besides the allegation itself. In particular, I did not find a date for that particular claim.
There are also several holes in adjacent statements - for example, ignoring the fact that the Foundation was "paid" in the form of being given the trademark in the first place. And the fact that trademarks can change value over time.
Is there any practical difference between transferring ownership of the trademark to Automattic vs. granting them an exclusive license that they're able to sublicense?
Um this seems pretty horrendous (from a moral PoV, no idea about legal), at the time Mullenweg apparently said
> Automattic has transferred the WordPress trademark to the WordPress
> Foundation, the nonprofit dedicated to promoting and ensuring access to WordPress and related
> open source projects in perpetuity. This means that the most central piece of WordPress’s identity,
> its name, is now fully independent from any company."
But then the complaint says:
> What Defendants’ statements and assurances did not disclose is that while they were
> publicly touting their purported good deed of moving this intellectual property away from a private
> company, and into the safe hands of a nonprofit, Defendants in fact had quietly transferred
> irrevocable, exclusive, royalty-free rights in the WordPress trademarks right back to Automattic that
very same day in 2010. This meant that far from being “independent of any company” as Defendants
> had promised, control over the WordPress trademarks effectively never left Automattic’s hands."
Again, no idea about the legality of saying you've done one thing in public, but functionally ensuring that the actual result is the opposite, but morally that's pretty gross.
Also, I saw on X earlier today, someone posted that the agreement WP Engine was being asked to agree to included verbiage that WPE would not be allowed to fork WordPress. Is not forkability one of the keys to OSS? Shady.
Howdy, Matthew Charles Mullenweg from the lawsuit here.
One thing I'm surprised they disclosed is on page 35 that Heather Brunner at WP Engine was interviewing for a job at Automattic. That's why we were spending so much time together 1:1 without her team there in the meetings I posted here: https://automattic.com/2024/10/01/wpe-terms/
They lied that it was to run WordPress.com, though, she wanted to be the Executive Director of WordPress.org for Automattic, a position that was held by Josepha.
That's not what page 35 says at all. Check out page 36:
> 92. Mullenweg’s premise was false, as WPE’s CEO had never interviewed with or negotiated a job offer with Automattic. To the contrary, back in 2022 Automattic had asked if she would be interested in running wordpress.com, but she politely declined.
(edit: I have no idea who is right, but it's just not correct to read page 35 as saying that)
She was interviewing November 2023 to January 2024. She declined the WordPress.org role on January 26, 2024. I even invited her to my 40th birthday on Jan 11, another text message she decided not to share.
Why you don't share it? You said there's much more emails and messages, but you never shared any. Why not?
Heather Brunner is an amazing person and leader. I know because I used to work with her. That's it. That's the comment.
"she wanted to be the Executive Director of WordPress.org for Automattic"
But you own and run and finance WordPress.org personally, as you've revealed and talked about numerous times in the last few weeks. I don't follow, how can Heather apply for a job with Automattic to be the Executive Director of a website you personally own?
Automattic employs ~100 people that work full-time on WordPress.org. I can appoint them into positions on WordPress.org, if I think that's appropriate.
Your response to this complaint is going to look very interesting.
Also, a note for the audience: Quinn Emanuel is one of the premier (and most expensive) litigation firms in the US. Partners in their litigation department run $2000/hour or more. Associates cost almost $1000/hour. WPEngine apparently has deep pockets.
Just wait!
So out of a 98 page document this is the part you chose to focus on.
An aspect that literally no one could care less about. Bizarre.
Since you're trying to get WP Engine to pay for "WordPress" trademark, by contributing back to open-source, because you feel they should, since it made them rich, I was wondering how many open-source projects did Automattic contribute to financially? Aside from WordPress, I'm sure you stand on the shoulders of giants such as Linux, nginx, MySQL, JavaScript libraries (or maybe you should call it ECMAScript, because you're not paying any trademark fees), etc.?
Just curious.
They're listed as a sponsor on the PHP Foundation website.
For the love of god, for your, your company's, Wordpress's, open source's sake, stop talking about any of this in public and let your lawyers talk. Dont you have lawyers? Or you dont listen to them?
Just keep silent.
Hi Matt. I wanted to ask, do you think that the actions you've taken will improve the WordPress community in the long term? What do you think are the likely outcomes for WordPress users and contributors, regardless of how this conflict ends?
There's a "no forking" clause in the term sheet Automattic sent to WP Engine:
https://automattic.com/wp-content/uploads/2024/09/term-sheet...
The WordPress license (GPLv2) says that if you attempt to sublicense the software or otherwise distribute it under different terms, you forfeit your own license to it:
WordPress is itself a fork, with no copyright assignments, so Matt has no ability to change the license.Given this, is it legal for WordPress.com to continue using and distributing the WordPress software as we speak?
This was a separate agreement from their GPL license, which of course allows them to fork. Sorry it's not clear from the term sheet, but this was about them forking our Stripe extension to replace the attribution from us to them for WooCommerce sites hosted on WP Engine. Stripe is also looking into this, as it's spammy.
I think you missed the point.
They (i know it's you but easier to not personalize it here) do not own all the rights to the software themselves. For the parts they do not own, they have no rights other than what they got through GPLv2.
Those rights are conditioned upon them not trying to sublicense/etc the software in a way that conflicts with GPLv2.
Which this term sheet purports to do.
The agreement wasn't about their license to the code, it was about their license to the WordPress and WooCommerce trademarks. They could agree to not do things allowed under the GPL, like replacing our Stripe attribution, it's their right to. Or not.
"The agreement wasn't about their license to the code,"
Maybe you misread it (or miswrote it i guess)?
it says:
"WP Engine will cease and desist from forking or modifying any of Automattic’s, WooCommerce’s, or its affiliates' software (including, but not limited to plugins and extensions) ..."
It could not more plainly say that they cannot fork or modify software.
"The agreement wasn't about their license to the [GPL] code,"
And
"WP Engine will cease and desist from forking or modifying [non GPL code]"
You are misreading it.
1. Matt just claimed it wasn't about software at all. So we've now moved on to saying "well it's about code, but not GPL code".
Progress, i guess?
2. The agreement does not limit it to non-GPL code in any way, so i'm really not sure where you are getting that from. The plain terms cover all of automattic (et al) software, which includes the stuff that has GPL code in it.
The normal way such an agreement would be written to cover only non-GPL pieces would be to say it does not attempt to modify or change rights you get elsewhere, blah blah blah. It includes no such clause.
If you've got meaningful parol evidence that it was meant to cover only non-GPL code, great, let's see it. (since the agreement is both badly written and not fully integrated, it would be valid to do so).
> License: GPLv3
https://plugins.trac.wordpress.org/browser/woocommerce-gatew...
A few things:
First, something general - one thing to keep in mind is that open source folks think of these things as license violations/etc, but that's not actually a thing, legally. Breach of contract and copyright infringement are. That is how a claim would be analyzed. Not as a "GPL violation".
Why is this relevant? Well, you really have to think of this stuff as contracts to use a given copy of software, and not as some abstract thing licensed or not.
This is fairly relevant because:
1. The general view on GPLv2 is that you gain a shiny new license every time you receive a new copy from someone else. In other words, you have signed a new contract. So while your rights may have been terminated the existing contracted copy (and you would be liable for distributing or ... that one), if you just get a new copy from someone else, congrats, new contract.
This is supported by the license: "6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions."
Let's assume this was not true
2. Wordpress is actually GPLv2 or later. GPLv3 has a notice and cure period. Under GPLv3, they would still be within the cure period (unless i screwed up the timeframe :P), and would have not lost a license yet.
3. GPLV3 has a more complex termination mechanism to try to deal with notice, cure, and the issue in #1.
In short, worst case, if they are claiming to use it as licensed by GPLv2, it would be fairly easy to cure the ability to distribute new copies. They could do nothing about violations that exist in existing copies (and would not be allowed to continue distributing those). I realize how insane this sounds, since it's basically saying "These bits over here are red but these same exact bits over here are green", but that's life in the legal realm sometimes.
For sure, if they do nothing, explicitly, they would be in bad shape, legally, in the worst case.
GPLv3 is a more complex question.
Also: there are those that strongly disagree with the view in #1 and believe you lose all rights forever unless they are reinstated. Rather than try to say who is right or wrong, i tried to give you where general consensus seems to lie. That is not something you should take to court, it's closer to "if you surveyed 100 open source lawyers what would most think"
> Why is this relevant? Well, you really have to think of this stuff as contracts to use a given copy of software, and not as some abstract thing licensed or not.
If you think about it in that way, copyright infringement is out of the picture completely because of the statutory exception.
17 U.S.C § 117 - Limitations on exclusive rights: Computer programs (a)Making of Additional Copy or Adaptation by Owner of Copy.—
Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1)that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2)that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Err, no.
That statutory exemption was created to resolve one court case and one worry:
1. A holding that you can commit infringement simply by loading a program into memory even for maintenance purposes. This was MAI v. Peak, one of the earliest real court cases on software copyright infringement. It was unfortunately followed by lots of courts.
2. A worry that creating tape backups/etc of computers, and copies of software cd's (since they don't last forever) was copyright infringement independent of anything else.
See the report for more details: https://www.copyright.gov/reports/studies/dmca/sec-104-repor...
Neither would eliminate infringement in this case.
This is an excellent question! From my armchair, it would appear a valid reading, but IANAL and all.
I hope Matt can supply his legal team with conversations that would somehow justify his behaviour. From my (incomplete) reading of the complaint, he (Matt) does indeed look very "petulant". It's almost like he's intentionally self-destructing, which is why I hope for his sake that he has more tangible evidence to share, especially after reading section 201.
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So they're "cherry picking" things that you said which make you look bad, which are true and accurate - and that's a "smear campaign".
While you are telling lies about trademark violations and extorting money specifically from WPEngine and have publicly admitted you're not doing that to anyone else that provides Wordpress hosting? And you've used terms like "war" and "nuclear option" when threatening the lies you subsequently told?
And somehow you still think _you're_ the good guy here?
:boggle:
Just resign. Make the WordPress Foundation into everything you've pretended it is over the years, including rightful and permanent owner of the trademarks and .org domain, and complete seperate from you personally and Automattic and it's related businesses. _Maybe_ that'll save WordPress. Maybe...
Matt - that's their job. They're making a complaint against you and Automattic.
The onus is on you now to respond. The best venue for that is the courts, not online forums and social media (that was 2 weeks ago).
Man... You are still talking on the internet publicly, obviously without any lawyer checking out what you say before you post comments. You will inevitably end up posting a lot of things that can make you look bad or sink the case for your side. Just stop talking about this anywhere online and offline. Let the lawyers talk.
What's sad here is that this dispute isn't likely to make Wordpress any better, but rather send money to lawyers and reduce enthusiasm for the OSS project.
I’m an arm length removed from all this drama having not used Wordpress in a while, but to be honest this opinion feels overblown. To an outsider, it just looks like some legal issue between two entities irrelevant to my concerns on whether I’d use or contribute to Wordpress in the future. Something that happens between corporations all the time
My guess is there will be some settlement, one party will walk away with a better position than before, and that will be that
Matt seems to have jumped on WP Engine essentially because they were making a lot of money. So now, any other company that is making a lot of money (or hoping to make a lot money) with Wordpress may wonder whether Matt will target them too.
What's the criteria? Is there some exact revenue or profit number a company needs to stay under to avoid this sort of attack? Does Matt only get mad at hosting companies, or do other companies making a lot of money with WP (e.g. big creative agencies) need to be concerned?
Without clarity, it's hard to quantify the risk. And companies might decide to shift their CMS work elsewhere rather than deal with it. The drama undercuts one of the big advantages of WP: it was free and permissively licensed.
I agree it might not have much effect on random people using or contributing to WP. But open source projects actually need a lot of investment to grow and survive. And anything that depresses that investment can depress the overall project trajectory.
One of the two entities completely controls the plugin ecosystem and wielded that control against the other entity (the largest WordPress host except, possibly, Automattic itself) to block them and all of their customers out of the ecosystem over this dispute.
That's why this matters to average developers. WordPress is the plugin ecosystem, and messing around with it does as much damage to the WordPress ecosystem as left pad did to npm—it's not unrecoverable, but it's a major setback that could quickly become unrecoverable.
I believe WPEngine is actually larger than Automattic. This is an attempt to get the bigger (and likely better) company to pay the bills of a company that took a bit too much VC money and now needs the revenue to support it.
Hopefully you’re right.
I expect long-term effects for both entrepreneurs and enterprise.
Companies that would’ve started in the ecosystem just got a clear signal that success comes with a tax.
And the risk-management department of every enterprise will use this* as their logical basis for choosing something with a better license.
* Matt unilaterally turning off WP updates for millions of WordPress sites is a major risk signal.
> irrelevant to my concerns
This is very relevant to anyone that cares about open source.
Companies being able to host any OSS without the threat of a trademark dispute is vital to the software industry.
Kind of a similar situation as https://en.wikipedia.org/wiki/Debian%E2%80%93Mozilla_tradema...
This didn’t kill Mozilla in the end or really affect the OSS community for Firefox or Debian
And what is more sad is that it really appears that the WordPress figurehead is to blame.
Matt has made so many unforced errors in the last month, in addition to revealing, one way or another, that he basically considers WordPress, the .org, the .com, the Foundation, and Automattic, all to be synonymous, which is news to a significant portion of the community, let alone to the incorporation and other founding filings.
He's completely unhinged. The threats that he made that are outlined in this document... how is this NOT extortion? Any lawyers around?
He claimed in an interview there's context to the texts that makes it look better, but he hasn't actually released that context, just said that it exists and he wishes WP Engine would [0]. I'm having a hard time imagining context that would make this not extortion, and if there really is context that makes it better I'm unsure why he's not releasing it himself. He's certainly not gone into no-comment-on-legal-matters mode, so his silence there speaks volumes to me.
[0] https://www.youtube.com/watch?v=OUJgahHjAKU
What would you like me to answer? I haven't doxxed any private texts from other parties like they have. I've only been releasing things I've said or sent.
https://automattic.com/2024/10/01/wpe-terms/
"May 2024 May 30: Automattic shares first term sheet with WP Engine via email."
Share the term sheet that you sent to WPEngine in May. The lawsuit suggests that this term sheet is to do with a (now cancelled) partnership between WPEngine and Automattic in regards to WooCommerce. Your blog post suggests that it's a term sheet regarding WPEngine paying the 8% trademark fee for WordPress. You can significantly undermine WPEngine's argument by proving that you presented a WordPress trademark licensing term sheet to them months ago.
Sure, it was a few text messages at the end of a months-long negotiation about a licensing deal. We posted the timeline and the final term sheet here: https://automattic.com/2024/10/01/wpe-terms/
WP Engine's business is built on violating the WordPress and WooCommerce trademarks, 8% is typical for a franchise fee. They confuse customers in the marketplace who think they're official WordPress.
If you watch this stream with Theo: https://www.youtube.com/watch?v=OUJgahHjAKU
He polls his audience and 54% of the thousand people watching thought WP Engine was an official thing, based on visiting their website that day. They have since updated their website a lot, including rewriting customer testimonial quotes without permission:
https://x.com/photomatt/status/1841644271939604628
If you offer someone a contract, they stall for a few months, and you show up at their house with gasoline and a match and threaten to burn their house down if they don't agree to sign the contract, you're guilty of extortion.
The context you need to share isn't that there exists a document that you wanted to sign and that they knew existed before you made the threats, the context you need to share is context that makes those texts not look like threats to drag their name through the mud in a massive smear campaign if they didn't agree to sign.
No one is disputing that you might have been in the right until September. It's your actions in September that you need to account for.
> 8% is typical for a franchise fee
I see many WordPress hosts use these trademarks in the same way WP Engine does.
How many of them are paying this typical 8% of monthly revenue fee?
Didn’t you give their CEO’s phone number to somebody who interviewed you? That seems like a clear breach of privacy to me.
Maybe anything that makes your texts not look like extortion?
Wait that's not making it better? /s
Seriously though, it's a freaking legacy. Sad to see it go this way.
Full PACER/RECAP docket, for those interested in following future filings: https://www.courtlistener.com/docket/69221176/wpengine-inc-v...
That's what going "nuclear" looks like ... I guess Mullenweg found out.
Sadly, instead of supporting open source with $5 million, they each will spend 10 million on lawyers.
> Sadly, instead of supporting open source with $5 million, they each will spend 10 million on lawyers.
I think both sides more or less see this as a case of standing up against a bully — they may lose out in the short run (in terms of money), but they think that they will discourage future bullying by fighting back.
I’m not sure if either side is right, but that’s why they both drew a line in the sand, imho.
Automattic requested well over $10 million annually from WP Engine, so WP engine would find a lawyer battle cheaper.
To go to Matt’s for profit entity, for his for profit entity to direct as they wish.
“I demand you give resources to your for profit competitor for them to use as they wish. And I’ll pretend to be wearing my non-profit, independent hat while demanding it.”
Is it any surprise this has gone the way it has?
OR to the non-profit entity.
Silver Lake and WPE's legal attacks may impact my ability to provide free services on WordPress.org in the future, especially things like Slack or forums that are grounds for discovery. I hope not, though. Going to fight this with everything I have.
Matt, I mean this sincerely: get yourself checked out. Do you have a carbon monoxide detector in your house? You're behaving so manically that it's hard to come up with a reason for this sort of behaviour unless there's something medical going on. The barely-veiled threats to take down WordPress.org (did you forget Cloudflare offered to host it for free?) aren't a rallying cry, they're a last gasp. WordPress is your life's work, don't ruin your meaningful contributions to the world. Go to a 10 day silent retreat, or buy a ranch in Montana and host your own Burning Man... anything but this. You're making a bunch of anti-establishment nerds side with Private Equity, that's how bonkers your behaviour is.
Thanks, I carry a co2 and carbon monoxide monitor. Co2 where I'm at is 572.
I do own a place in Montana, and I meditate several times a day. I have not threatened to take down WordPress.org. WPE's preservation requests do complicate things, legally, though, for the Slack and forums that W.org offers.
Both Cloudflare and Fastly have reached out offering CDN services to W.org, which we're considering. Cloudflare also serves a lot of WP Engine. We do like controlling our infrastructure, though, for a variety of reasons, and have run it without problems or downtime for 21 years. Currently the only outside vendor we use is Slack/Salesforce, which donates free Slack Pro accounts for 49k users. (I think that would cost ~5M/yr.) We also use some Github, which is free for open source.
> Going to fight this with everything I have.
Your chance to do that was before you threw a grenade into the WordPress ecosystem and injured hundreds of thousands of innocent WordPress developers over a {trademark|giving back|general bad vibes} dispute. No one here is buying your attempts to pawn responsibility for your actions off onto WP Engine.
They may have legitimately been the bad guys until a month ago, but you've thoroughly stepped into that role now and you're making no effort to step back.
I don't think folks want you to provide those free services, is the thing. I think most folks want those housed inside a foundation that can seek industry support in the normal ways. A lot of people seem to have thought they already were.
> especially things like Slack or forums that are grounds for discovery
You know comments here and on Twitter can end up as evidence in court as well, right?
Who attacked whom?
The alleged extortion of the WP Engine CEO seems absolutely inexcusable regardless of what you think of the trademark dispute. Impossible to imagine a valid justification for telling someone you'll tattle to their investors and the press if they don't accept a job offer.
It's absolutely unhinged. I really wonder how much legal support Matt had during all of this.
Is it just me who took a double take at the very first name?
WPE called the heavy cavalry -- Rachel Kassabian from Quinn Emanuel? oh boy. Remember Perfect 10, Inc. v. Amazon.com, Inc which found thumbnail versions of copyrighted images for search engine purposes is fair use? That was originally against Google and she was Google's lead counsel.
Ah Quinn Emanuel on the job - yeah, the defendants are cooked, one way or another!
When you hire them, QE is very good at making the opposing party spend almost as much as you do!
It's hard to even imagine what a best-case scenario looks like for Matt at this point. Putting aside the matter of righteousness, his business is pretty much chalked for professional applications at this point. B2B partnerships are done - anyone with lawyers on-staff are going to get shoulder-tapped and asked to find another hosting solution. Smaller customers have all the more reason to bleed out to competitors, and the plugin/theme ecosystem is going to see the writing on the wall better than anyone else. Qui bono? Who is Matt "protecting" from harm, really?
I just don't understand in any sense what the end goal was here. On the one hand, I feel like I must not understand because I lack an emotional connection to the project. In the other hand, I feel like a stoic approach is the only one that makes sense. It's a baffling tempest-in-a-teapot that must have extra details I don't understand. If all this occurred with no hidden motives, it would be a shockingly wasteful decision.
If it's any three things, it's about money, money, and money.
Zooming out a bit, Automattic acquired Tumblr and like all those before it seems to be choking on it.
Competitors like Wix, Squarespace, WebFlow and Shopify are all nipping at WordPress' marketshare.
I don't know what WordPress.com's stats look like, but blogging is out of sytle. New cool kids want the new black. That is to be social media influencers. Along the same lines, the WordPress Community is "aging out". Events online or off there's too little "youth" engaged and excited about the product.
In shoet, the pie isn't what it once was. Matt looked around the room, saw deep pockets (i.e., WP Engine) and made a go for it. That was a poor decision. Seeing himself as a cult leader who would get unwavering support from his cult (aka The WordPress Community) was another mistake. People are fatigued and enough them have stopped drinking his Kool Aid. There are pockets of support but certainly not what it used to be. Many WP people are anxious to move on from the Mattopoly.
> blogging is out of sytle
OTOH maybe the majority of WP users are not blogging.
It's anecdotal but I know about a dozen WP users first-hand (and maintain a couple of those installations) and none of them use it for blogging. It's mostly for marketing websites and shops with WooCommerce.
That's .org version of WP. WP.com - Automattic's bread & butter - was the big 2nd gen blogging platform.
Yes, agreed WooComm is new. Nonetheless, social media'ing has replaced "I got a website" and "I got a blog."
> People are fatigued
I think this is significant. As I caught up on this conversation I've seen it interwoven with saltiness about "The Block Editor", which I understand is a new WYSIWYG editor replacing the classic editor under deprecation and which an increasing part of the community have been feeling alienated and forced by. It's been Matt's baby and WP hasn't been taking the community feedback to heart.
"What Defendants’ statements and assurances did not disclose is that while they were publicly touting their purported good deed of moving this intellectual property away from a private company, and into the safe hands of a nonprofit, Defendants in fact had quietly transferred irrevocable, exclusive, royalty-free rights in the WordPress trademarks right back to Automattic that very same day in 2010. This meant that far from being “independent of any company” as Defendants had promised, control over the WordPress trademarks effectively never left Automattic’s hands."
Already on the second page, a mind-blowing revelation. This is gold. What a time to be alive.
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Of these, the ones that are interesting are basically 1, 2, 3, 4, 5, 10.
The CFAA claim here is actually basically an extortion claim (plus other throwaway general claims) framed in CFAA terms.
See 18 U.S.C. § 1030(a)(7)
This is actually somewhat uncommon to see :)
However, it seems likely to be dismissed (without prejudice) or need to be amended since it looks like it doesn't plead the claim properly.
"(g)Any person who suffers damage ... may maintain a civil action ... A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i).
They do not actually explicitly allege one of these factors is present, and it reads like it is a necessary element to maintain a civil action claim.
Now, mind you, the factors are present (It's stuff like 'you have to cause at least 5k in damage), but the response is going to state they've failed to plead a claim by not explicitly meeting all the necessary elements.
Well, there’s also specifically the element of exceeding authorization that doesn’t even seem plausible on its face.
The real meat of the federal complaint is the request for a declaratory judgment.
> Mullenweg failed to disclose this exclusive licensing arrangement between his nonprofit (the WordPress Foundation) and his for-profit (Automattic) in the WordPress Foundation’s tax filings with the California government, claiming that there were no “contracts ... between [WordPress Foundation] and any officer, director or trustee ... or with an entity in which any such officer, director or trustee had any financial interest”.
That can't be good for him.
It certainly sounds so, but I went looking for the source and I'm not sure what to look for besides the allegation itself. In particular, I did not find a date for that particular claim.
There are also several holes in adjacent statements - for example, ignoring the fact that the Foundation was "paid" in the form of being given the trademark in the first place. And the fact that trademarks can change value over time.
Without knowing how it works in California, it might be that filings are available to the public if you go digging for it but not necessarily online.
That's not true, will address in court. They made up a lot of things in this.
Is there any practical difference between transferring ownership of the trademark to Automattic vs. granting them an exclusive license that they're able to sublicense?
These 2 belong in a Judge Judy episode.
Um this seems pretty horrendous (from a moral PoV, no idea about legal), at the time Mullenweg apparently said
> Automattic has transferred the WordPress trademark to the WordPress
> Foundation, the nonprofit dedicated to promoting and ensuring access to WordPress and related
> open source projects in perpetuity. This means that the most central piece of WordPress’s identity,
> its name, is now fully independent from any company."
But then the complaint says:
> What Defendants’ statements and assurances did not disclose is that while they were
> publicly touting their purported good deed of moving this intellectual property away from a private
> company, and into the safe hands of a nonprofit, Defendants in fact had quietly transferred
> irrevocable, exclusive, royalty-free rights in the WordPress trademarks right back to Automattic that very same day in 2010. This meant that far from being “independent of any company” as Defendants
> had promised, control over the WordPress trademarks effectively never left Automattic’s hands."
Again, no idea about the legality of saying you've done one thing in public, but functionally ensuring that the actual result is the opposite, but morally that's pretty gross.
It supports their various unfair competition/etc claims, but mostly seems written for the IRS/press/etc.
Source for the Mullenweg statement https://ma.tt/2010/09/wordpress-trademark
Also, I saw on X earlier today, someone posted that the agreement WP Engine was being asked to agree to included verbiage that WPE would not be allowed to fork WordPress. Is not forkability one of the keys to OSS? Shady.