I suspect that's still not actionable in the way the parent poster means, since AFAICT there no private right of action: You can't sue, only petition some government agency to bring their own lawsuit.
(Most other governments don’t grant these rights though)
Let's set aside all other claims (there are others), and take a look at "Unlawful, Unfair, and Fraudulent Business Acts" under that.
We'll also throw out unlawful business acts (I don't see anything unlawful so far).
Unfair: "An “unfair” business act or practice, as defined by the UCL, is typically committed by either a company or a business competitor. ... In the context of a business competitor, it is considered an unfair business act when the company does something that broadly undermines competition in the marketplace."
Additionally, they consider " immoral, unethical, oppressive, and unscrupulous" business acts to be unfair.
Banners on wp engine sites probably not a good thing under this. Threatening your competitors with bad keynotes unless they pay you, also probably not a great practice.
(I do think you'd be fine to say they suck. I just don't think you can get away with basically extorting them)
Fraudulent: "The UCL also prohibits “fraudulent” business acts or practices, which means any conduct that misleads or deceives consumers."
Note that it does not have to be defamation, or malice, or illegal. Just misleading or deceptive. More exactly, it does not have the elements of common law fraud - Intent is not a requirement, and negligence can be a violation.
So pure opinions without intent or with negligent intent that actually deceive consumers, while not defamation or common law fraud, are quite possibly a fraudulent business practice.
Overall, I think they have a stronger case than you might. Not on defamation, but on other things.
Regardless of the outcome, the approach i see taken by the Automattic CEO here seems remarkably stupid.
Don't mix your roles unless you want a court to mix your roles.
When he threatens to ban them from wordcamp[1] in what capacity is he doing it in?
1. Which, btw, the central website totally avoids mentioning who is in charge or paying overall anywhere i can find. I hope it's not the foundation (or him or automattic) and he's not mixing roles further while threatening his competitors.
I can't speak to the veracity of the facts presented in WP Engine's C&D letter, but my reading of it is they're accusing the head of the WordPress Foundation, in his official capacity, of putting the interests of his for-profit company ahead of the non-profit's stated mission. That's the sort of thing that could threaten the foundation's 501(c)3 status, or in extreme cases lead to criminal charges.
For example, if I have a WordPress site I've built from scratch out of WordPress.org, I am just going to assume trying to put it on WordPress.com will be annoying (and possibly even impossible?), because of issues with themes or plugins or whatever due to the fact that WordPress.com is a separate, hosted SaaS-style CMS, and not a hosting environment for WordPress sites.
WPE, by contrast, is Just Another Webhost to me, with some special bells and whistles for WordPress.
> I put banners on my web
There's a large difference between putting up a banner on _your_ site and abusing your position to put a banner on _every_ site you can.
Automattic is not the owner of WordPress, the WordPress Foundation is. Even though many employees of Automattic work (maybe full-time) on WordPress [1].
So I sell your aspirin in my shop, and a friend of yours helped you package your aspirins and while doing that put some stickers onto your aspirin.
[1] https://www.df.eu/blog/wer-steckt-hinter-wordpress-ueber-die... (German)
You sell a brand of aspirin in your shop. The brand has outsourced most of the production and decision-making to another company. That company puts messages on the bottle. If those messages bother me, I can bring it up with the brand and see if they'll address it, or stop carrying the brand, but the question of whether they've overstepped is for the brand owners rather than me.
Tortious interference - where one party (Automattic) interferes with a contractual relationship between two parties (WPengine, their customers), in this case by means of disparagement pushed to the dashboard of WPengine instances.
Matt Mullenweg. CEO of Automattic.
Now guess who The WordPress Foundation granted sole rights to sub-license their trademarks? You guessed it. Automattic.
Yeah, it gets worse the more you look at it.
What this means is that any "licensing fee" would be paid to Matt's private, for-profit, VC-backed company (and direct competitor to WPEngine) and there would be zero accountability for how it would be spent.
In practice, the foundation doesn't enjoy any benefit to owning the marks. It's all smoke and mirrors.
If there is a real-world open-source analogue to that situation, I'd be genuinely interested in hearing about it.
To me the solution seems simple; The WP Foundation should own and license the trademark. Then use the proceeds for its mission in a way that is accountable to the community (Automattic should not have to pay of course).
It's an obvious conflict of interest for a foundation that is supposed to be serving the community.
If you choose to use the WP.org software as is, it's kind of your fault, isn't it?
This seems to me plainly like regular old competition. Can you point to something that's clearly defamatory?
I was under the assumption that WordPress is OSS, and WPEngine is running this software on their platform, so there was an update to this software, contributed by Automattic developers which included a banner denouncing WPE, and the WPE people decided to just deploy that update to their platform?
I don't think that means they "put the banner on their instance" does it? If they are unhappy with the management of the open source software they are using on their platform they presumably could fork it, or decide to not deploy the version that includes this banner, no?
I have seen the mentioned blog post now [1] the whole thing is starting to make more sense to me.
Also, I see no way how this going forward even in front of courts could end up with wp engine replacing WordPress.com.
As an aside, people don’t usually act like this when things are going good. Perhaps Matt is lashing out because of pressure he is already under.
edit: and to close the loop, Matt is demanding benevolence from WPE that Automattic themselves don’t engage in. Automattic own the Wordpress.com domain and promote their hosting service through Wordpress.org (which causes the exact confusion Matt accuses WPE of benefiting from). The money Automattic spend on supporting Wordpress project is not a donation, it’s quid pro quo. Would WPE pay $10m a year to own all that? Of course, any rational company in the space would… but that’s not what Matt is offering.
Just "lol", it's really funny line when taking into consideration all the years how he manages WP, cares about direction it moves, fosters and cares about OSS, directs funds and all of other countless things AND putting on the other chalk some WP hosting which happened to grow for one reason or another and is contributing peanuts compared to what it gains from the WP. No, he still has a lot of credibility.
> I sort of directionally think that if WPE had a strong case here, their opening bid wouldn't be a C&D
I believe, as a non lawyer, in some places to be able to sue for defamation you must first contact the defamer and demand they take it down.
I have no idea and no opinion if there is a case. If there is a case a C&D might be a necessary step.
Creating a track record/evidence. Or the opportunity. My only practical experience is trying to get a restraining order. It's harder than you might think. Legal system demands work to work.
(But see below for the 'DannyBee comment on how UCL unfair competition might work even if you can't make a case under the extortion statute itself).
Alexa, order ten cases of popcorn...
He posted this after receiving the C&D.
Automattic is Matt's private, for-profit company and a direct competitor to WPE.
“it would be nice to have the flexibility of Movable Type, the parsing of Textpattern, the hackability of b2, and the ease of setup of Blogger. Someday, right?” Synthesis is a type of invention: https://evanm.website/2016/03/synthesis-over-invention/
>Another fork like b2evolution or any of the billion blogging tools at the time would have—
People love to say things like this about any and all products but there’s this overwhelming counterpoint of what actually happened.
> They had the option to license the WordPress trademark for 8% of their revenue, which could be delivered either as payments, people (Five for the Future .org commitments), or any combination of the above.
So they could have "paid" by just hiring a few WordPress devs to work on it. That is: not necessarily by transferring dollars to Automattic.
IMHO this is an important bit of nuance missing in this thread.
This would be a different conversation if there was an independent and accountable foundation driving things.
If everything was handled by an independent, transparent and accountable foundation then this would be a different conversation. It isn't. It's handled by a private, for profit, vc-backed company with a leader known for personal vendettas and holding grudges.
I want to be clear: I have no love for WPE and agree they should be doing way more. I'm just pointing out that the current arrangement is not exactly conducive to facilitating that.
I have a hard time seeing how that can happen. WP-Engine still decides what bits of WordPress they work on – it's just a matter of having developers who work on it.
The letter in entirety is a warning of potential legal action. That is the next action if the other party neither ceases or desists.
Maybe this is normal, but we're glorified animals trying to find justice out of a made up process. It's arbitrary, hence arbitration. Not a lawyer either. You probably know more terminology than I do; I just deal with them a lot :/
edit: I think it's a little strange to be placing judgements at this stage. We'll hear the facts if this goes to court. There's enough to know several are upset. Another consideration: by placing the numbers you're kind of trying to make their argument. Why? Let them.
That’s what they’re talking about preserving.
Not a cop out, the people filing the CD felt this was enough to move forward with
This is the big one to me, actually. If Matt used the announcement feature in the WP.org codebase to place an announcement in WPEngine customers consoles telling them they should not support WPEngine, but instead his for-profit competitor, WP.com, it's pretty hard to argue that that is anything but tortious interference.
They are pretty clear they will go after them for torturous interference, unfair competition, etc.
California's UCL is much broader than you may think here - it is consistently interpreted very broadly by california courts, and has fairly low requirements (IE fraudulent business practices under the UCL do not have meet the same requirements as fraud)
The diminished standard of intent and the fact that a mere advertisement can trigger liability in some states makes UCL/CFA extremely powerful in some cases.
But dang is not theirs to give!
I sort of directionally think that if WPE had a strong case here, their opening bid wouldn't be a C&D (I've noticed C&Ds frequently include a "preserve documents" section, presumably as punctuation, but for what it's worth that's an implicit threat they might sue).
The meat of this C&D seems to be a section towards the middle where they describe Mullenweg's keynote speech. It makes, according to WPE, these claims (numbers mine):
1. Claiming that WP Engine is a company that just wants to “feed off” of the WordPress ecosystem without giving anything back.
2. Suggesting that WP Engine employees may be fired for speaking up, supporting Mr. Mullenweg, or supporting WordPress, and offering to provide support in finding them new jobs if that were to occur.
3. Stating that every WP Engine customer should watch his speech and then not renew their contracts with WP Engine when those contracts are up for renewal.
4. Claiming that if current WP Engine customers switch to a different host they “might get faster performance.”
5. Alleging that WP Engine is “misus[ing] the trademark” including by using “WP” in its name.
6. Claiming that WP Engine’s investor doesn’t “give a dang” about Open Source ideals.
Under a US defamation analysis, claims (1), (3), and (6) appear to be statements of opinion. Statements of opinion, even when persuasively worded and authoritative, are generally not actionable as defamation. It might depend on the wording; in corner cases, an opinion can be actionable if it directly implies a conclusion made from facts known to the speaker and not disclosed to the audience --- but the facts involved have to be specific, you can't just imagine that I've implied I have secret facts (or my audience expects me to) because I'm Matt Mullenweg.
Claim (4) seems like it's probably just a fact? Is WPE assuredly the fastest possible provider at any given price point? The "might" also seems pretty important there.
That leaves (5) the allegation about the trademark dispute, which doesn't sound like an especially promising avenue for a lawsuit, but who knows? and (2) the bit about employee and former employee reprisals. The thing about (2) is if there's a single example of a disgruntled WPE employee who thinks they missed a promotion because they stuck up for the WordPress Foundation or whatever, WPE might have a hard time using that claim.
You'd think that before WordPress/Automattic started directly demanding funds from the board of WPE, they probably had some kind of counsel review this stuff and figure out what they could and couldn't safely say?
Maybe there's tortious interference stuff here that gives these claims more teeth than a typical defamation suit (I've come to roll my eyes at tortious interference, too; unless you're alleging really specific fact patterns I've come to assume these interference claims are also a sort of C&D "punctuation").
This is one of those times where I'm saying a lot of stuff in the hopes that someone much more knowledgeable will set me straight. :)