Hacker News Reader

Comment by diggan | Hacker News Reader

> Of course, my company does have an affiliation with WP Engine. We use their service to host our website

Does no one understand what "affiliation" means anymore? Just because I bought something from Amazon doesn't mean I'm now affiliated with Amazon. "Affiliation" (usually) means something like a formal association, partnership, or close connection, not that you're just a customer.

Besides that, dump Wordpress regardless, clearly they've lost focus from the actual users and Matt seems to be fighting some war others can't even see the reason for.

View on HN

The language is intentionally vague, and leaves the determination on the person who has to check the box.

I have a competing product and shouldn't get too far in the weeds on what I truly think here, but the predominant feeling across people that have to interact with this is that it's done on purpose.

It's not so much that people don't understand what the word "affiliation" means, it's that you'd have to be completely certain that a lawyer, hired from what is clearly a litigious org, would have the same understanding.

This isn't a legal document from the federal government. There's no perjury risk. Just click the box and get what you need. What, is Matt paying for deep background checks on everyone that does check that box? It's one of the most ridiculous checkboxes on the interwebs

You’re thinking about this from the perspective of good faith. I think the people who are worried are looking at it from the perspective of no longer being comfortable saying something is too absurd to happen.

For example, say your company ends up on Matt’s legal radar and he trawls the logs looking for accesses from your IPs and says you violated CFAA – even if you’re totally comfortable that you’d prevail in court, that could be an expensive process and discovery might turn up things you’d prefer not to be public. In situations like that it’s easier simply not to risk dealing with him since people who are focused on vengeance will often waste resources on pointless activity just to prove a point.

Nobody said perjury. Violating contracts is actually illegal though, FYI.

maybe it's just me that always has that "under penalty of perjury" sarcastically running in my inner voice whenever I see these types of ridiculous EULA type of things.

Somebody should really force the issue to "have standing" to fight the ridiculousness. I'm shocked WP Engine hasn't already

Companies are absolutely allowed to arbitrarily ban certain people or groups of people from using their services, and if you sign a contract attesting to you being allowed to use the service, you can absolutely be found guilty and/or liable of breach of contract.

Illegal? Or just a civil problem? Illegal takes it in a pretty severe direction.

Some courts have interpreted the definition of "unauthorized access" in the CFAA pretty broadly. That checkbox about WP Engine is arguably an "access control mechanism" since you can't access the site without checking it. Maybe it's a stretch but it's not that much of a stretch.

I could see a breach of contract argument too.

IANAL.

IANAL either but I was under the impression that changed with the Van Buren v United States Supreme Court case [1]. If you register and accept a EULA, it’s no longer “unauthorized” access, regardless of whether you exceed EULA limits, as long as you’re using the authorized interface (as opposed to trying to get access to the servers via SSH or some other side channel). It’s not the criminal courts’ job to enforce access limits.

[1] https://www.law.cornell.edu/supct/cert/19-783

IANAL, not from the US either. But if you register, you are signing a legally-binding licence agreement. Doesn't lying or giving false information nullify this contract?

For example, if you register on wordpress.org while claiming you have no affiliation with WPE, but you did have any sort of affiliation, they could consider the contract null/void, and claim the access was unauthorised because the contract wasn't valid.

The contract can be null and void but if you can still login, it’s not unauthorized access. The burden is on the company to pursue breach of contract. That’s my reading of the decision but again, IANAL.

Civil infractions are still called "illegal", at least in the US

It is not illegal to beach a contract. You can be held liable for damages but there is no criminal penalty and some judges think beaching contracts can be good (so called efficient breach)

It is legally enforceable i.e. it is not something you should just say “well it’s not an agreement with the government so I can breach!”

When Matt was asked to clarify what he means by "affiliation", he said: "ask your lawyer" and "I can't answer that for you"

I saw this exchange too and was shocked - it is Matt who has chosen to add this checkbox and chose the wording of the question - if he cannot explain who should or should not check it, or what he means by his own words, how can anyone?

His responses to perfectly sensible questions about this ridiculous box has been awful.

If he can't answer such a question, he shouldn't get to ask.

Agreed, and I think this isn't really about whether he personally knows legal jargon, but about whether he had a clear idea WTF he wanted before making brash demands and threats.

(Or, much less charitably, the intentional use of vague language in bad faith.)

contra proferentem - a rule in contract law that states any ambiguity in a contract should be interpreted against the party that drafted it

Velcro shoes for everyone

> If he can't answer such a question, he shouldn't get to ask

No? If my employer asks me to clarify my employment agreement, I don't have an obligation to be their armchair counsel.

That analogy is backwards: You'd be the one asking your employer to clarify the terms they chose and wrote themselves which they are trying to press upon you.

It's totally reasonable to ask the party introducing "shall not associate with" into a contract exactly WTF "associating" is supposed to cover.

> You'd be the one asking your employer to clarify the terms they chose and wrote themselves which they are trying to press upon you

I’ve made edits to employment agreements. It would be totally inappropriate for the other side to demand legal advice from me. It would be polite for me to clarify. But I’m under no obligation to.

It sounds like there's some confusion here between "hard legal obligation to give non-binding external advice" versus "moral and practical obligation to fix the binding wording if they are actually interested in mutual agreement and understanding."

I suspect most people asking Mr. Mullenweg "what do you mean by X" are doing so with a subtext or next-step of "now go fix the text to correctly capture what you really meant."

I’m reading “he shouldn't get to ask” [1] as distinct from he shouldn’t ask in a hard legal sense.

> with a subtext or next-step of "now go fix the text to correctly capture what you really meant"

That’s unreasonable. An e-mailed clarification is a reasonable ask. (Adding a clarification is nice. But not a reasonable expectation. Especially from a proven nutjob.)

[1] https://news.ycombinator.com/item?id=41975496

If you add vague additions in you ammendments and then refuse to clarify when asked about your intentions, potential employers might just decide it's not worth the risk. Same here.

If they can't explain the basic intent of the agreement in the first place, I'd be awfully hesitant to sign.

Matt was just asked if the spirit of the checkbox was to keep out customers and wouldn't answer. That's not really the same as asking him for legal advice.

> If they can't explain the basic intent of the agreement in the first place, I'd be awfully hesitant to sign

This is fair.

Your lawyer can tell you what, legally, it is allowed to mean.

He cannot tell you what Matt means by it. The question stands.

Right. And these words can have bizarre meaning in legal terms. For instance, in Illinois law the word "shall" does not mean something is mandatory. Most of the time it should be read as simply "may".

https://www.isba.org/committees/governmentlawyers/newsletter...

he is legit having a mental breakdown

> Does no one understand what "affiliation" means anymore?

I have neither a WordPress.com account (I mean, that I know of, anyway) nor an affiliation with WP Engine. However, can we back up for a minute? If a website is asking me to make an assertion that may have legal consequences, it should absolutely be spelling out the intention and meaning of the language it uses. If you ask me what "affiliation" means, I'll give you my best answer as to what I understand it means. If you ask me to sign a document that says I do or do not have affiliation with some entity, I will tell you to clarify what an affiliation is and refuse to sign without it.

If you buy something from Amazon you've made a one-time exchange.

If you use WP Engine, you have an ongoing agreement with them to provide and support a service on which your business depends. A reasonable and literate person could construe that to be an affiliation.

> "Affiliation" (usually) means something like a formal association, partnership, or close connection, not that you're just a customer

In securities, yes. In general use, not necessarily.

"Not necessarily" can apply to almost any use of language, but I feel like this kind of thing can commonly be interpreted as non-affiliated. In an analogous case, if you work for an organization that performs public elections, at least in my country, you can't be affiliated with a party, but your personal business (voting for them) isn't included. Being publicly connected with or being compensated by another entity would seem to me to present an arguable affiliation

> Being publicly connected with or being compensated by another entity would seem to me to present an arguable affiliation

It looks like it's a legitimate legal issue [1][2].

TL; DR It may make sense to explicitly clarify when you're using the term 'affiliate' as it is defined in 17 CFR § 230.601 / Rule 144 [3] versus "affiliate, including but not limited to []," or whatever.

[1] https://www.sackrosendin.com/blog/2017/03/landlord-loses-ove...

[2] https://casetext.com/case/iqbal-v-ziadeh-2

[3] https://www.law.cornell.edu/definitions/index.php?width=840&...

The language is, as described, intentionally vague and people with varying degrees of “affiliation” have been hit by the consequences.

Matt also refuses to provide any elaboration on intent and instead says “you should talk to a lawyer”.

This has the chilling effect he is looking for. No-one is “talking to a lawyer” to create or use a Wordpress.org account. Anyone who has sniffed the same air as WPE knows the intent.

I know what the words means to me, I don't know what it means to Matt, and his opinion seems to be the relevant one.

Isn't that what lawyers end up doing, arguing which definition of the word applies? And since (as far as I can surmise) elonmusk.php hasn't clarified what that word means in his checkbox, won't it be safer to be cautious?

This brings back the horrid memories of what the definition of is is type of sentences

How about an argument for millions of dollars due to a missing punctuation mark: https://www.smithsonianmag.com/smart-news/missing-oxford-com...

The problem is that Matt/WordPress is not using the standard definition of affiliation. On social media, Matt suggested that being a customer or service provider to WP Engine was an "affiliation" for purposes of that checkbox.

This is why any decent contract or agreement has a definitions section. Ambiguity in legal docs should always be minimized.

On the contrary, it's why contracts use boilerplate.

Boilerplate words have all been litigated. Boilerplate clauses are well understood.

Affiliate, affiliated, affiliation, words like these are boilerplate, unless you go to the trouble of locally redefining.

Embrace the magic of “and”.

Boilerplate is good but definitions are best, even with boilerplate words that have boilerplate definitions. Incorporating those definitions into the document at the time of execution benefits all parties. Again: minimize ambiguity, anticipate what will make dispute resolution easier.

Source: have worked through a lot of contracts, license agreements, labor agreements, and disputes over the same.

A lawyer would beg to differ.

But only after you'd committed to paying his standard hourly rate for begging-to-differ services.

What if I being a customer "help" this company translating a part of the software? I am more than a customer then? should or shouldn't suggest features? how charm may I interact with support so I can still be a customer and not something more? Can I wear T-shirts of this company?

> "Matt seems to be fighting some war others can't even see the reason for."

We see the reason. That reason is money. The lies / gaslighting aren't for OSS, etc. It's about MM's bottom line.

Regardless, its kind of like asking someone to declare they aren't a communist or other bullshit political tests. I would refuse out of principle.

Reply on news.ycombinator.com