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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

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.

anon7000 2y ago
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.
- chucky123 2y ago
  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.
zugi 2y ago
> 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-letter-to-automattic/#wait-arent-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.
- glenstein 2y ago
  >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.
  - bigiain 2y ago
    > 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-wordpress-org-wp-engine 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.”
- duskwuff 2y ago
  > 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 https://en.wikipedia.org/wiki/Nominative_use
IncRnd 2y ago
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.
- bigiain 2y ago
  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...
  - bzmrgonz 2y ago
    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.
    - cscurmudgeon 2y ago
      A though: any open-source project which worries about "corporate freeloaders" despite its license is not truly open-source.
      - ChoHag 2y ago
        [dead]
    - AlotOfReading 2y ago
      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.

anon7000 2y ago

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.

chucky123 2y ago
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.

zugi 2y ago

> 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-letter-to-automattic/#wait-arent-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.

glenstein 2y ago
>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.
- bigiain 2y ago
  > 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-wordpress-org-wp-engine 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.”
duskwuff 2y ago
> 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 https://en.wikipedia.org/wiki/Nominative_use

IncRnd 2y ago

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.

bigiain 2y ago
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...
- bzmrgonz 2y ago
  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.
  - cscurmudgeon 2y ago
    A though: any open-source project which worries about "corporate freeloaders" despite its license is not truly open-source.
    - ChoHag 2y ago
      [dead]
  - AlotOfReading 2y ago
    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.