Response to WP Engine’s Lawsuit
automattic.com
automattic.com
[1] https://medium.com/@kelliepeterson/nice-guy-matt-mullenweg-c...
Edit: added missing word "companies"
I don't think I have ever before seen, in an official public statement, a "The lawyer we just hired always beats the lawyer they just hired!" boast, and it seems ridiculous - it's almost even hinting in the direction that they think the case should be decided on quality of lawyer rather than that their case should win on merit.
What about this “seems crazy”?
That line in the blog post is aimed at public perception, not WP Engine's perception, and from a PR point of view there's not really any benefit to it only downside - I guess their thinking is that some members of public might think "the winning lawyer wouldn't join the losing team so Automattic must be in the right here", but it actually makes them look like their legal defence is weak enough that they need to resort to trying to win through legal skills rather than business facts.
When I call it "crazy" I'm talking from the point of view of someone who has drafted a couple of announcements quite similar to this one, and many others that weren't related to defending legal cases but were still walking tricking lines in PR/comms, and I just can't imagine a line like that being suggested by anyone I've worked with and can't imagine letting it slip into a release I was involved in.
[0] There's gotta be a fancy latin-sounding lawyer word for this, right?
> There's gotta be a fancy latin-sounding lawyer word for this, right?
“America”
That's something I could (especially given his comments) never, ever, ever see Matt conceding, so they may end up going to trial (as part of their lawsuit centers on the self-dealing, inappropriate use of non-profits, etc., and getting judgment there might be the only route to that).
If WP Engine decides to fork, it devalues the "just like WordPress but better" value proposition and increases operating expenses as they can no longer inherit improvements from WordPress. A fork may mean they don't hit the growth targets they promised Silver Lake. Selecting this attorney is putting down a marker that WordPress wants a verdict, not a settlement.
The other wild card potentially more damaging to WP Engine and Silver Lake is the discovery process inherent in any lawsuit.
I am not a lawyer, but I don't think most commenters are correctly decoding the relative bargaining power of the two sides.
Those customers are not going to migrate their sites to the company that just gave them an operational and security headache (Automattic).
And most big customers do not give a shit about Wordpress per se. They just use it because it’s a free and convenient accelerant for the sites they want to build. If it starts becoming a hassle they will just move to a different CMS. There are plenty of options.
"In an email, Bruce Perens, one of the founders of the open source movement who drafted the original Open Source Definition, told The Register, "Let's be clear about WP Engine: It's built on WordPress. There would be no business without WordPress. And it's a large business with big revenue, operated as if it's funded by private equity."
"Private equity always demands big returns, regardless of the harm they do to the business. One of my customers has been completely destroyed by them – they are still operating but on such thin resources that they can't dedicate the time of one engineer to work with me on an open source compliance review, even if I do it for free.
"So, WP Engine is in that situation, and has to increase returns to the investors. What do they do? Cut any voluntary expense, which includes returning any value to the creators of WordPress. I'm told that WordPress asked for eight percent of revenue, which sounds fair to me considering that it's the basis of WP Engine's business.
"But because it's an open source project, WordPress can ask but can't demand that money, so they have to turn to hostile enforcement of their trademark and denying access to their updates."
Being "built" on something does not in itself imply value. What has to be taken into account is also "value that is added." If the underlying platform had high intrinsic value in itself, then no value would have had to be built on it to profit from it, which would mean WP Engine would not be the only entity profiting from it.
And to add to the reductio ad absurdum, are PHP engineers required to "donate part of their salaries" to the project just because "they're profiting off of that language?" (/sarcasm)
As to 30% being "fair" it's a fee structure that is known in advance, you can plan accordingly. I try to deal with the world as it is, not how I would like it to be.
Occam's Razor and all that.
Matt has sabotaged any chance of a good result for him and Automattic no matter how good this lawyer is. And even if he wins in court he's already lost in the court of public opinion. Its over.
Matt may need to step down if your assessment is correct but that's distinct from what happens to Word Press as a platform.
My sense is that the Word Press negotiating position is stronger and WP Engine will either have to fork or make a much larger contribution. But I may be wrong. If that does not happen then I believe that the private equity players will do a lot more damage to open source communities because a "harvesting paradigm" will continue.
As I see it, the only way for WordPress to survive is if Matt steps down from the board, and the foundation & dot org mess is reorganized in a manner that makes it accountable to the community. Even then, a lot of damage has been done to the reputation of WordPress.
I won't be surprised if we eventually start seeing mainstream reporting on this case from the WSJ and NYT. Luckily, it's an election cycle so that might not happen for a while.
Firms that dominate markets enjoy tremendous inertia in customer choice and can take a long time to die--if, in fact, WordPress is dying. The longer-term perspective on what Silver Lake has been doing to profit from open source efforts by Word Press may reach a very different conclusion about Matt's actions than your assessment.
That's a really good point. But I think (& hope) it's a little different in the open source world, because people have stronger moral opinions about where they hang their hat. We'll see.
https://venturebeat.com/business/apple-nokia-win-2m-after-sa...
Lol
Yes, that's why WordPress silently and secretly licensed back the WordPress trademarks to Matt's for-profit company without telling anybody. For the good of the customers.
That's why they forced the new boondoggle editing UI that everyone hates. For the good of the customers.
That's why the WordPress code is still spaghetti more than 15 years after it was originally launched. For the good of the customers.
Matt also seems very proud of his new, shady lawyer, who failed to disclose that he had cases before the Supreme Court when he endorsed Gorsuch and Kavanaugh for open spots. Gorsuch and Kavanaugh have since reciprocated by ruling for this guy's clients every time, in several cases with decisions that confounded even conservative legal experts. So, it would seem Matt found a dirty lawyer to represent his dirty case. (EDIT: Katyal is the lawyer who suggested corporations should be immune from anti-trafficking laws because it would be bad for business and got his endorsee pals to bless corporate wage theft. He's the kind of lawyer companies turn to when they want to get away with something truly evil.)
We vehemently deny WP Engine’s allegations—which are gross mischaracterizations of reality
Based on Matt's gross misrepresentations of reality on yesterday's thread, the only party to this case making gross mischaracterizations of reality is Matt.
If WordPress were truly an independent, community-led organization like Matt claims, he would have been forced out by now for the harm he's inflicted upon it.
On the very same day Matt released a press release patting himself on the back for doing so, and how deeply devoted to the community he was. Indeed the press release specifically talked about how this ensured WordPress would never be unduly influenced by for-profit companies!
Thats actually true. Backward compatibility was and still is the #1 thing in WP, and its why it won over the web: No small business or individual customer cares about 'better code' in the backend if those 'improvements' break their websites. This was what a lot of wordpress competitors did in the past and they suffered for it.
Backwards compatibility is just the excuse Matt has been using from the beginning to justify how abysmally bad the code is.
Never ever seen one single non-technical website owner or user complain about 'spaghetti code'. As for 'code quality affecting other things', that's our (programmers') exaggeration:
> Security exploits, hacked-together functionality that can't be improved
NASA, White House, CNN, Reuters, Techcrunch and a thousand other gigantic organizations use Wordpress and they arent getting hacked.
Neither any of the small to medium businesses that use wp for their own websites, marketing sites or ecommerce sites - as long as they keep their site and plugins updated.
> poor performance requiring expensive and extensive modifications to achieve basic levels of responsiveness
I dont know where you are pulling that out from. Default wp can do 1.5 seconds load time from start to finish and get 99, 100, 99 scores in google page speed. Even with a good theme, its still as fast.
> Backwards compatibility is just the excuse
Its not the excuse. Its the #1 concern of small and medium businesses and individuals, and whenever it was violated WP or any plugin, droves of them left the WP ecosystem or stopped using such plugins.
Really, what we concern ourselves as programmers and what the overwhelming majority of users on the internet concern themselves with, have a huge chasm in between them.
In what world was anyone in the Senate unaware that Neal Katyal, the _former acting U.S. Solicitor General_, was suing the Trump administration over its travel ban on behalf of _the entire state of Hawaii_?
Furthermore, while I just don’t care about this WordPress case and I hate Gorsuch with the fires of a thousand burning suns, but I cannot stand people arguing in bad faith, no less than *The Washington Post* let the whole world know before Katyal introduced Gorsuch that this was the case. [0]
The precedent being set here is wild, and every Wordpress organization becoming a Mullenweg personal mouthpiece account defending him personally is just so, so, bad.
This is one of the the most needless self-destructive acts I have ever seen in the world of business.
Easy, just don't be too successful.
https://www.irs.gov/pub/irs-tege/How%20to%20Lose%20Your%20Ta...
So much of Automattic's corpospeak drips with spite. Makes me understand why other companies are so "bland" — to protect themselves
Does he actually believe this? WP Engine makes some very popular and well-liked products.
Also I realized "Matt" is front and center in Automattic so that says a lot
It sounds like you haven't been aware at all about WordPress and suddenly looked up some numbers and imposed traditional company expectations on an open source project with a commercial arm.
WordPress is a fork of b2/cafelog [1], and arguably wouldn't be where it is today without the initial open source community behind it.
[1] https://wordpress.org/book/2015/11/the-blogging-software-dil...
Companies even competitors are allowed to use trademarks when they are making factual statements, like "we provide Wordpress hosting" as long as they make it clear that they are not the trademark holder (i.e., confusing customers). Even before they revamped their website, WP Engine was very clear about being a third party provider for hosting WordPress blogs. They weren't claiming to be the original WordPress, or the original WordPress hosting provider, or anything similar.
He admitted to violating labor laws and non-profit tax laws, and perpetuated several ongoing torts. He had a very productive day; it explains why he had to hire one of the most sadistic corporate lawyers in America.
https://wpengine.com/ mentions "wordpress" 56 times today.
And here is the website from a month ago: https://web.archive.org/web/20240903110405/https://wpengine...., still 56 times "wordpress" is mentioned.
Looks mostly the same to me, at least compared to a month ago.
Mozilla has one of the stricter trademark policies but it's for a good reason and the community mostly trusts them. WordPress not so much.
Not just a retroactive agreement, a retroactive rewriting of trademark usage. Up until a few days into this dispute, the appropriate text on WordPress's site explicitly permitted people to use "WP" as they saw fit (as much as they can, as I don't believe they have a trademark on WP, just WordPress). Matt hastily edited things to imply WPEngine was in violation.
I'm only slightly following the dispute between Automattic and WPEngine but it might have more to do with WPEngine rewriting the payment identifier on Automattic's open source Woo Commerce ecommerce plugin.
WPEngine's payment identifier rewrite results in WPEngine getting a cut of ecommerce payments processed through their hosted sites and not Automattic.
I don't know the details though and probably didn't even explain it right. Matt talked about it recently in a Youtube interview.
Last night, WP Engine filed a baseless lawsuit against Automattic and Matt Mullenweg. Their complaint is flawed, start to finish. We vehemently deny WP Engine’s allegations—which are gross mischaracterizations of reality—and reserve all of our rights. Automattic is confident in our legal position, and will vigorously litigate against this absurd filing, as well as pursue all remedies against WP Engine. Automattic has retained Neal Katyal, former Acting Solicitor General of the United States, and his firm Hogan Lovells, LLP, to represent us. Mr. Katyal stated, “I stayed up last night reading WP Engine’s Complaint, trying to find any merit anywhere to it. The whole thing is meritless, and we look forward to the federal court’s consideration of their lawsuit.”
Our focus is and has always been protecting the integrity of WordPress and our mission to democratize publishing. From our earliest days, our highest priority has always been our customers. WP Engine can hardly say the same.
> Neal has been adverse to Quinn Emanuel a number of times, and won every case.
My perception: the personal grievance comes through loud and clear. Hopefully cases are decided more on their merits and less on the identities of the attorneys prosecuting them.
When that is happening between two companies I generally don't care about it that much, but I hope open source doesn't turn out to be collateral damage here.
Both parties seemingly suck, and I wish them both the worst. In the meantime, this is a great excuse to promote WP-alternatives and improve upon them just in case this whole thing goes completely pear-shaped.
What exactly sucks about WPEngine, specifically?
As does every single other host that offers WordPress, and every user.
> position(ed) themselves as WordPress affiliated (the branding can easily be understood as WPengine being core WordPress)
One: "WP" was explicitly allowed, by WordPress, for use of WordPress. Matt yoinked this after all of this started, in the last two weeks or so. He also tried to make it retroactive.
Two: nominative usage says that if you factually offer WordPress hosting (or MySQL hosting, or whatever), you are allowed to say so. It doesn't mean you are maliciously "positioning yourself" as "affiliated", in any way, shape or form.
> and contribute nothing back
Not true at all, despite Matt's venom. They contribute and maintain several of the most popular plugins, they contribute to the codebase (just not to Matt's liking), and sponsor conferences and community events - this all started around the time that they sponsored a WordPress conference to the tune of $75,000 and then were banned from attending it, which is odd, because supposedly WordPress (the open source project) and the Foundation are independent (per all of their own filings with regulatory bodies and the IRS), but they were banned because they were in a dispute with Automattic (CEO - Matt), so WordPress Foundation (President - Matt) decided so. To add insult to injury, banned, but they decided to keep the sponsorship money.
Where is the blog post about the affect this has had on them?
I've probably answered my own question already because evidently a lot of people here find this kind of schoolyard scrap intriguing ... I just wonder ... why. I guess the answer is to just upvote everything else on the front page.
(ETA: Not saying it's impossible he or they have an interest -- I've just never seen this suggested. WP Engine is in many ways a competitor to wordpress.com, so it would be unusual, I think. And he/they have long not been a fan of WP Engine.)
https://techcrunch.com/2011/11/15/silverton-automattic-put-1...
https://wptavern.com/automattic-makes-second-investment-wpen...
2018 would tie in with about when I first got the impression he was not a fan of WP Engine. I'm sure there was fuss once before (about them not being on the "recommended hosting" page?)
As far as I can figure, from watching Matt's recent interviews and my own conjecture...
Matt's seen his open source creation go, over the course of 20 years, from a hobbyist product to now one with a multitude of companies creating billions of revenue from it.
But as it's grown certain companies are now huge and flush with VC cash. Which does change the equation. In the early days it might be reasonable to turn a blind eye to trademark infringement when it helps all boats rise, but now things are very imbalanced.
IMHO WPEngine is rent-extracting in the same way that AWS does with many open-source solutions. Customers want products not source-code and are prepared to pay for packaged value-added products compatible with Wordpress. But none of this revenue is going back to the developers and fostering the development ecosystem in any meaningful way. If opensource projects like Redis & Elasticsearch could have had developers hired from 8% of revenues from those AWS sales imagine how much better off those projects could have been.
As Wordpress itself is open-source Matt doesn't have any levers except the name Wordpress. As anybody in open-source should know - the code might well be open for forking but the name is very protected. Just because the trademark hasn't been entirely well enforced doesn't mean the protection is lost - the right always belongs to the trademark holder to use and enforce how they please as unilaterally as they wish. Trademarks can lose their protection if they start referring to generics but that's not the case here. Wordpress doesn't mean generic CMS - it's always referring to a Wordpress source code hosted by various companies.
Matt's clearly acting emotionally and not terribly logically - that's clear for everyone to see. But I do think its with the long term intention of making a more sustainable community.
Ultimately WPEngine can just rename their company and the only lever Matt has over them goes away.
Or they can embrace the name and pay a fair licensing cost - a rate significantly lower than if they were licensing some other commercial CRM software.
WP Engine also acquired, and continues to maintain, projects like Advanced Custom Fields [1] and Local [2].
Local used to have pro features, which became free for everyone after the acquisition [3].
[1] https://www.advancedcustomfields.com/blog/reflecting-on-two-...
[2] https://wpengine.com/blog/better-together-wp-engine-and-flyw...
Today: "We have hired a lawyer."
The first lawyer he refers to may be actually Automattic corporate counsel, too, and you'd definitely want an outside firm on this suit.
Though any lawyer should have told him to shut up.
Yeah, it's not exactly a contentious legal opinion, "Don't go on a massive, selective, foot-in-mouth comment spree that just raises more questions and problems than it answers on social media after being served with a suit."
As a normal WordPress user who is a current client of Automattic AND WP Engine (for different sites), I’m simply far less likely to use WordPress at all for anything new. Why would I at this point? Why would anyone?
Shitty performance, shitty themes, borderline malware plugins……