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Comment by chrisandchris | Hacker News Reader

> Automattic put a banner in every WordPress dashboard on the subject, including WordPress instances hosted by WPE

> I put banners on my web

There's a large difference between putting up a banner on _your_ site and abusing your position to put a banner on _every_ site you can.

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One person's "abuse" is another person's "I have this platform and can use it however I like." For another example, whenever cable companies (dish, etc.) have licensing disagreements with content creators, they put up a bunch of ads that are like, "ESPN's unfair negotiations mean you may lose access to this channel, call this number to complain". That's never been found to be defamatory--it occurs to this day.

If you sell my aspirin in your shop, you will have to accept what I put on the packaging or stop carrying my product.

That's true, but does not apply to this situation.

Automattic is not the owner of WordPress, the WordPress Foundation is. Even though many employees of Automattic work (maybe full-time) on WordPress [1].

So I sell your aspirin in my shop, and a friend of yours helped you package your aspirins and while doing that put some stickers onto your aspirin.

[1] https://www.df.eu/blog/wer-steckt-hinter-wordpress-ueber-die... (German)

Does WPF take issue with this operational decision by Automattic? If so, they have the avenues to deal with it, and they're the party who can claim to be aggrieved, if it violates some duty Automattic has to WPF. I seems more like this, from my understanding:

You sell a brand of aspirin in your shop. The brand has outsourced most of the production and decision-making to another company. That company puts messages on the bottle. If those messages bother me, I can bring it up with the brand and see if they'll address it, or stop carrying the brand, but the question of whether they've overstepped is for the brand owners rather than me.

> and they're the party who can claim to be aggrieved, if it violates some duty Automattic has to WPF

Tortious interference - where one party (Automattic) interferes with a contractual relationship between two parties (WPengine, their customers), in this case by means of disparagement pushed to the dashboard of WPengine instances.

Tortious interference requires that the interfering party induce the party to the contract to a breach of the contract. Where's that element?

Inducement? Like "We have blocked the ability to access plugin and other repositories for customers of WPEngine. We have not done so for this other, "independent", for-profit entity (that just so happens to be owned by the same person)"?

Inducement to what? Where's the breach of contract being encouraged?

Here's the thing. Guess who is the head of the WordPress Foundation?

Matt Mullenweg. CEO of Automattic.

Now guess who The WordPress Foundation granted sole rights to sub-license their trademarks? You guessed it. Automattic.

Yeah, it gets worse the more you look at it.

Automattic originally registered the trademark WordPress. They donated it to the WordPress Foundation while retaining a commercial license to the marks. https://wordpress.org/book/2015/11/the-wordpress-foundation/

Some important nuance is lost here. Matt Mullenweg transferred the trademark to the WordPress Foundation (which he is head of) and the foundation (again... Matt himself) in turn granted Automattic the exclusive ability to sub-license the name commercially. This is the important bit.

What this means is that any "licensing fee" would be paid to Matt's private, for-profit, VC-backed company (and direct competitor to WPEngine) and there would be zero accountability for how it would be spent.

In practice, the foundation doesn't enjoy any benefit to owning the marks. It's all smoke and mirrors.

The trademark policy sounds like it falls somewhere between the Mozilla Foundation/Corporation model and the Red Hat/Fedora Project model. This is how open source in practice works.

Not really. The Mozilla Corporation and Red Hat aren't direct 1:1 commercial competitors to the people they also license the trademarks to (as is the case with Automattic and WPEngine). It's an obvious conflict of interest and inherently problematic on so many levels.

If there is a real-world open-source analogue to that situation, I'd be genuinely interested in hearing about it.

To me the solution seems simple; The WP Foundation should own and license the trademark. Then use the proceeds for its mission in a way that is accountable to the community (Automattic should not have to pay of course).

How does that look worse?

Do I need to spell it out? The foundation is headed by the same person who they granted an exclusive license to. Not just a commercial license to use the trademarks. It's permission to sub-license the trademarks for profit without restriction. It's blatant self-dealing.

It's an obvious conflict of interest for a foundation that is supposed to be serving the community.

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