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I'm not defending his position, or talking about whatever's in the legal documents, I'm just trying to explain the distinction Matt seems to be drawing between

by kemayo 2y ago

I'm not defending his position, or talking about whatever's in the legal documents, I'm just trying to explain the distinction Matt seems to be drawing between the trademark license (and attached terms) and the software license in this thread. (Personally, I think it's a fairly bullshit distinction that's completely against the spirit of the GPL. It's probably legally allowed, though.)

mort96 2y ago
I don't understand how that's supposed to work. You can't use a trademark to prevent anyone from forking a piece of software whose license allows forking. You can say that other people can't use your trademark in forks, but that doesn't seem to be what's going on here? "Cease and decist from forking or modifying the software" is, again, a different sentence from "cease and decist from using our trademark in your modified versions of the software"
- kemayo 2y ago
  My understanding of Matt's position, and what that term sheet he posted is talking about, is that he feels that WP Engine needs a trademark license to cover what it's currently doing. He feels that their usage of the marks exceeds what's generally allowed under the "everyone can use it this way" terms that WordPress.org offers. His position isn't just that they can't use the trademark to apply to their forked version, it's that they can't use it as they currently are even if it wasn't forked. So Matt's now offering these terms: a license to use the trademarks as they currently are, in exchange for concessions. The concessions include that they'd agree to not use their GPL-granted right to fork the code. This sounds like an agreement that would hold up, assuming he's right about the trademark policy. Again, I have no idea about the actual legalities of trademark usage. It's entirely possible that Matt is wrong about them not being allowed to do what they're currently doing with the trademarks, but it sounds like lawyers will be arguing about that.
  - ImPostingOnHN 2y ago
    > The concessions include that they'd agree to not use their GPL-granted right to fork the code. The point is that including this stipulation (attempting to limit the GPL-granted right-to-fork) appears to be itself against the GPL, and voids Automattic's previously-granted GPL rights. In other words, if you even attempt to get someone to sign away their GPL granted rights, you lose your own GPL granted rights.
    - kemayo 2y ago
      WordPress is GPLv2-or-later. GPLv2 is silent on the subject of trademarks, and is a bit vague about additional restrictions -- section 4 would apply to trying to restrict usage of the code, but trademarks are a separate thing. GPLv3 explicitly allows you to decline to license your trademarks (see section 7, the paragraph starting "Notwithstanding any other provision of this License", clause e). This isn't generally called out as one of the big differences between v2 and v3, so I think it's intended more as a legally-spelled-out clarification than a change. I'm not a lawyer, but the GPLv3 in particular seems compatible with the idea that you can tell someone that they can only use your trademarks so long as they behave in a certain way... so long as you're still allowed to fork the code, strip out those trademarks, and continue using it. Which does seem to be Matt's position. (I mean, he also wants to restrict access to Wordpress.org services, but that's even less in the GPL's area.)
      - ImPostingOnHN 2y ago
        Trademarks are a red herring here. What the GPL says is that if Automattic attempts to get someone to give up their GPL rights (e.g. the right to fork), then Automattic automatically loses their own GPL rights as punishment for the attempt. This is the section 4 you speak of. Specifically, Automattic cannot offer terms that say "in exchange for trademark stuff (or anything else), you agree to give up your GPL rights to forking". The term sheet seems to show Automattic did precisely that (violated section 4 of the GPL license by trying to get someone to give up their GPL right to fork), ergo Automattic should lose their own GPL rights, including to parts of Wordpress. Trademarks don't factor in here.

by kemayo 2y ago

mort96 2y ago

I don't understand how that's supposed to work. You can't use a trademark to prevent anyone from forking a piece of software whose license allows forking. You can say that other people can't use your trademark in forks, but that doesn't seem to be what's going on here? "Cease and decist from forking or modifying the software" is, again, a different sentence from "cease and decist from using our trademark in your modified versions of the software"

kemayo 2y ago
My understanding of Matt's position, and what that term sheet he posted is talking about, is that he feels that WP Engine needs a trademark license to cover what it's currently doing. He feels that their usage of the marks exceeds what's generally allowed under the "everyone can use it this way" terms that WordPress.org offers. His position isn't just that they can't use the trademark to apply to their forked version, it's that they can't use it as they currently are even if it wasn't forked. So Matt's now offering these terms: a license to use the trademarks as they currently are, in exchange for concessions. The concessions include that they'd agree to not use their GPL-granted right to fork the code. This sounds like an agreement that would hold up, assuming he's right about the trademark policy. Again, I have no idea about the actual legalities of trademark usage. It's entirely possible that Matt is wrong about them not being allowed to do what they're currently doing with the trademarks, but it sounds like lawyers will be arguing about that.
- ImPostingOnHN 2y ago
  > The concessions include that they'd agree to not use their GPL-granted right to fork the code. The point is that including this stipulation (attempting to limit the GPL-granted right-to-fork) appears to be itself against the GPL, and voids Automattic's previously-granted GPL rights. In other words, if you even attempt to get someone to sign away their GPL granted rights, you lose your own GPL granted rights.
  - kemayo 2y ago
    WordPress is GPLv2-or-later. GPLv2 is silent on the subject of trademarks, and is a bit vague about additional restrictions -- section 4 would apply to trying to restrict usage of the code, but trademarks are a separate thing. GPLv3 explicitly allows you to decline to license your trademarks (see section 7, the paragraph starting "Notwithstanding any other provision of this License", clause e). This isn't generally called out as one of the big differences between v2 and v3, so I think it's intended more as a legally-spelled-out clarification than a change. I'm not a lawyer, but the GPLv3 in particular seems compatible with the idea that you can tell someone that they can only use your trademarks so long as they behave in a certain way... so long as you're still allowed to fork the code, strip out those trademarks, and continue using it. Which does seem to be Matt's position. (I mean, he also wants to restrict access to Wordpress.org services, but that's even less in the GPL's area.)
    - ImPostingOnHN 2y ago
      Trademarks are a red herring here. What the GPL says is that if Automattic attempts to get someone to give up their GPL rights (e.g. the right to fork), then Automattic automatically loses their own GPL rights as punishment for the attempt. This is the section 4 you speak of. Specifically, Automattic cannot offer terms that say "in exchange for trademark stuff (or anything else), you agree to give up your GPL rights to forking". The term sheet seems to show Automattic did precisely that (violated section 4 of the GPL license by trying to get someone to give up their GPL right to fork), ergo Automattic should lose their own GPL rights, including to parts of Wordpress. Trademarks don't factor in here.