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Comment by glenstein | Hacker News Reader

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.

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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.

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...

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.

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.

" ... 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.

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

> 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.

> 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.

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?

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

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

The ElasticSearch people backed down on their SSPL license change after only 3 years, and are back to an OSI approved AGPLv3 (in addition to a couple of other non OSI approved licenses).

"In 2021, with the 7.11 release, we moved our Apache 2.0-licensed source code in Elasticsearch and Kibana to be dual licensed under Server Side Public License (SSPL) and the Elastic License, giving users the choice of which license to apply. In September 2024, we are adding the Open Source Initiative (OSI) approved AGPLv3 license as an option alongside SSPL and our Elastic license ensuring our community and customers have open source access to use, modify, redistribute, and collaborate on the code with a clear set of rights of their choice." -- https://www.elastic.co/pricing/faq/licensing

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

Microsoft used to call it shared source. As long as you don't mislead people by pretending it is open source when it isn't, you can call it anything you want.

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.

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.

> 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.

>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.

> 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.”

> 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

"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.

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.

> Single English words cannot be trademarked.

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

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.

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

> 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.

No, it's not about ACF and has nothing to do with the company WP Engine. This is a trademark dispute about WP Fusion Lite from the company named Very Good Plugins.

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.

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.

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