WP Perspectives Issue 22: Fault Lines Exposed And There is No Going Back

“The die is cast” – Julius Caesar when crossing the Rubicon

The Cracks Are Real – What the WP Engine Conflict Means for the Rest of Us

This is an analysis of the conflict between WordPress leadership and WP Engine. I begin with a factual review of main events before sharing my take on them. If you aren’t familiar with the details then the facts section will catch you up. If you are then you might want to skip it, though my views are based on what is listed. I try to avoid rehashing a lot of what has already been said and focus on some things that haven’t been thoroughly discussed.

The Facts

On Friday September 20th in a Question and Answer session near the end of WordCamp US, Matt Mullenweg gave a presentation where he called out WP Engine for not contributing back enough to the WordPress project. He said he had been in lengthy negotiations with WP Engine but that they were dragging their feet. Matt said that WP Engine sponsors the approximate equivalent of 1 person a week to work on core while Automattic is sponsoring the approximate equivalent of 100 people a week. Looking at the Five for the Future website today I see WP Engine at 40 hours a week and Automattic at 3,966 hours a week.

Automattic, founded and run by Matt, is also a hosting company. Automattic and WP Engine are roughly the same size with a similar number of employees. Matt has made the point that WordPress-related companies that do not funnel a share of their profits back into the project have a competitive advantage, they benefit from the contributions of others and have greater profits.

Matt spoke about the “tragedy of the commons” where a common community resource is free to use by every one, but some over use it and do not help tend it, and the commons becomes degraded and possibly destroyed. WP Engine being an example in this case of a company benefitting from the contributions of others without giving back enough, in Matt’s assessment. He said that when people signed up or renewed their hosting plans they should pick companies that are giving back to WordPress. Matt followed up with posts on social media, his own blog, and even on WordPress.org with attacks on WP Engine.

WP Engine respondeed with a Cease and Desist order saying that Matt was hurting their business and indicated their intention to sue for damages. Communication from WP Engine said that Matt had attempted to extort millions of dollars from them.

Automattic holds the right to use the WordPress trademarks commercially, as well as the right to sublicense their use. Automattic replied with their own Cease and Desist order and a Trademark infringement claim. Trademarks can be used in advertising services, but cannot be used in a confusing manner that would lead people to mistake the 3rd party as being associated with the trademark holder. In Automattic’s court document there were examples of trademark misuse, some of which showed terms like “Managed WordPress” or “WordPress Hosting”, which are common usages. WP Engine’s lowest plan used to be called the “WordPress Core” plan. There were also examples where 3rd parties referred to WordPress itself as “WordPress Engine,” which would be an example of the spread of confusion. On social media Matt said he offered to WP Engine that they could either pay for the trademark usage or to pay in kind by contributing to Five for the Future.

The articles that Matt published on his own blog and on WordPress.org, are shown by default on the news feed of every WordPress site, including those of WP Engine’s customers. WP Engine used some code to block the news feed showing on sites they host.

WordPress.org blocked the IP addresses of WP Engine from accessing the WordPress.org’s update servers and other free services. This means that WP Engine customers are not able to update WordPress, themes, or plugins using the automatic admin dashboard method.

A lot of WordPress sites are hosted by WP Engine and they would not have access to the regular update procedures to apply fixes to security issues. Consequently Patchstack, a notable security company in the WordPress space, has said they will temporarily stop publishing information about new high and medium severity security issues.

(Note, Matt has just unblocked the update servers for WP Engine customers until October 1st.)

My Analysis

The WordCamp Announcement and the Trademark Dispute

Apparently the Automattic legal team tried to negotiate with WP Engine for some months in relation to the claims of trademark infringement. Those negotiations were unsuccessful. Therefore it is up to a legal determination of whether or not there was trademark misuse and if so, to determine the damages. My opinion is that Automattic should have pursued this through the courts and not have launched this action at WordCamp US. Here is the first reason why:

Prior to the Question and Answer session at WordCamp US there were several days of contributing, educational sessions, and community networking. The experience of attendees was very positive about this time. The noted French sociologist, Emile Durkheim, pointed out that events where a large number of people come together give the participants a sense of something larger than themselves. Attending WordCamps is seen as a special experience and helps to strengthen the WordPress community. The presentation against WP Engine, who was a sponsor of the event, was very jarring and disrupted the positive experience of attendees.

An argument can be made for presenting this at a WordPress event because it is of community concern. However, Matt shared a number of points about the conflict after the event, which clarified his position, but the presentation itself did not provide background and crystal clear points about the contention. For example, it was later shared that Automattic gave WP Engine the option of paying millions for using the trademarks or contributing in kind to the project. Because this wasn’t clear during the presentation, the emphasis during the presentation on Five for the Future, which is a voluntary program, was confusing. This contributed to its disruptive impact, a missed opportunity as it was a prepared presentation.

Pay for Trademark Use or Payment in Kind

If you misuse a trademark then you are potentially subject to legal remediation by the trademark owner. This is clearly the law.

Automattic believes that WP Engine was misusing the trademark but they disagree. From a distance, services described as “WordPress Hosting,” “Managed WordPress,” or “WooCommerce Hosting” seem like fair use. The idea that WP Engine might have to pay to use the trademarks in that manner introduces uncertainty for a lot of WordPress-related businesses. Will everyone be required to pay?

Matt shared on social media that the rule for determining if a trademark use is confusing, is if 15% or more people are confused. He mentioned that they have research showing numbers greater than that. However, I think once WP Engine disagreed with that charge that then it should have been taken to the courts to decide.

Automattic apparently suggested WP Engine could pay millions to sub-license the trademark OR contribute in kind through programs like Five for the Future. While Automattic has the right to set the terms for a trademark sublicense, I think this either/or option muddies the waters. Either they owe money or not and either Five for the Future is voluntary or not. The Five for the Future page says:

The 5% in Five for the Future is an aspirational target, not a strict requirement. It represents a goal to contribute 5% of your time or resources to the WordPress project, recognizing that any contribution, no matter the amount, is valuable.

There is Now Clarity About What the Commons Is and Is Not

We have seen glimpses of it in the past, but now it is very clear that WordPress.org is not part of the Commons. Matt Mullenweg personally owns, or owns a controlling interest in corporations that own, all of the infrastructure, all of the domain names, all of the WordPress related accounts on social media, the update servers, he has final say over what goes into the software, most of the people work for him directly or for a corporation he controls, the Director of the WordPress Foundation is an Automattic employee, etc. The only thing that is part of the Commons is the WordPress source code, which is protected by the GPL. (Note: Matt does not own 3rd party plugins and themes hosted on WordPress.org.)

Leadership Must Not Only Be Fair, But Must Be Seen to Be Fair

I strongly feel that Matt wants what is best for WordPress. I think he wants the project to survive and thrive. However, there are many instances where WordPress leadership acted in what appears to be the best interests of Automattic, but not what is best for WordPress.org. These are instances where they had the power and the legal right to do something, but perhaps they shouldn’t have. In these types of cases it appears that they are unfairly favoring Automattic.

Matt has said that he owns WordPress.org. He needs to embrace that giving something to the community is a gift and not take back it when it suits him, or he needs to establish clear rules for fair use for resources like access to the update servers.

To be clear, I appreciate that there is substantial costs to running the WordPress.org infrastructure. I appreciate that Matt and Automattic have paid the bills. Note, however, that I, and everyone I know, would be willing to pay reasonable membership dues to support a non-profit organization with member representation that took over that responsibility.

WordPress Does Not Belong to You

Trademarks aside, there is the belief that we own WordPress, the software. However, that is not strictly the case. We have the freedom to use the software. These are the Four Freedoms, they are the user “bill of rights”:

• The freedom to run the program, for any purpose.
• The freedom to study how the program works, and change it to make it do what you wish.
• The freedom to redistribute.
• The freedom to distribute copies of your modified versions to others.

So people have the right to use the software and the right to fork it. However, the ability of the vast majority of people to actually fork WordPress is just as real as their ability to go to Mars. In theory it “could” happen, but it is not realistic. WordPress has a very large and complex code base. To fork WordPress you would need a high level of technical expertise as well a great deal of time and/or a team. Realistically, to make a viable fork of WordPress you would need a company with deep pockets or an organization of members with a lot of resources.

The Fault Line Opens

In the dispute with WP Engine Matt blocked WordPress websites hosted by WP Engine from the WordPress.org update servers. This not only impacts WP Engine, but also all of the website owners who have websites with them. On the one hand it makes sense if someone is suing you to not let them use your resources for free, but on the other hand, access to updates is as much a part of the core WordPress experience as revisions and the ability to install plugins. WordPress leadership and others have emphasized the importance of turning on automatic updates for site security. Access to the regular update process has been removed for WP Engine customers.

The WordPress leadership has inadvertently sown fear, uncertainty and doubt in the minds of those with WordPress related businesses. They have weaponized Five for the Future contributions and access to the update servers, as well as calling into question how the WordPress trademarks are used. Perhaps the current conflict will blow over, but unless better governance structures are put into place, everyone is now aware that “it could happen to me.” You could be hosting with a company that the WordPress leadership has a fight with and lose access to automatic updates. You could find that your “voluntary” contributions are lacking. You could find that your WordPress service requires a trademark sublicense. In the back of everyone’s mind there is the realization that WordPress isn’t as free as we thought it was.

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From Around the Web

This presentation about scaling WordPress has lots of general tips for optimizing a busy site.

Patchstack has a free program for developers to help in managing reporting of security vulnerabilities. This is a good resource for plugin developers.

If you are interested in building block themes, the WDS BT Block Theme is a good resource to see what is possible. This is the WebDEV starter theme for their projects.

I think the ActivityPub plugin and related Fediverse plugins are going to become big in the future. It helps to re-establish the “web” part of the Internet. This is a nice interview and discussion about it.

Deals

GutenKit is a large Gutenberg block collection with support for dynamic data. It works well in the Site Editor. GutenKit is available on AppSumo.

Get 20% off Meta Box Lifetime using coupon DYNAMIC20.

Lifetime packages for the Dynamic Shortcodes plugin are still available.

What’s Up Next

I have a lot of site work to do. I would also like to do some walk-through videos of free community plugins. Please let me know if you have any suggestions.

David McCan
Friday September 27th, 2024