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WP Engine sent “cease and desist” letter to Automattic

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Re: WP Engine sent “cease and desist” letter to Automattic

#181
post #155

Earlier quoted context omitted.

Agreed. I'm confused by a lot of the discourse in this thread. The extortion seems like the important thing. I would think (paraphrasing) "I'm going to destroy your business if you don't pay me" is extortion regardless of the merits of the claims used in carrying out the threat.

I mean if a business if built on top of your business, is it actually illegal to say "Pay me if you want continued access?" Is it the wording that makes it illegal?

... to the open source project WordPress? 1) it'd be hard to forbid any one entity from using it, based on the licensing, and 2) the announcements and banners pushed to users referenced WP.com, Matt's for-profit competitor which WPengine doesn't use, and brings about elements of tortious interference.

Re: WP Engine sent “cease and desist” letter to Automattic

#182

Earlier quoted context omitted.

That's true, but does not apply to this situation. 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...…

Does WPF take issue with this operational decision by Automattic? If so, they have the avenues to deal with it, and they're the party who can claim to be aggrieved, if it violates some duty Automattic has to WPF. I seems more like this, from my understanding: 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…

> and they're the party who can claim to be aggrieved, if it violates some duty Automattic has to WPF

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.

Re: WP Engine sent “cease and desist” letter to Automattic

#184

Earlier quoted context omitted.

Isn't this completely fine? If you and I both make aspirin, but we both put a little something extra in it (me vanilla, you salt) and I put banners on my web page saying "bastawhiz's salty aspirin puts the ass in aspirin", doesn't this just seem like typical rivalry? My point here is that defamation is defamation no matter the scale. I think scale is relevant re: damages, but not as to whether or not rivalry escalate…

Nah. Putting disparaging claims directly on the dashboard of my customers seems pretty abusive, and if it happened to me I'd be looking at legal options too.

Automatic are publishing a blog post and syndicating it to RSS, and some other software (WP.org) is displaying that feed.

If you choose to use the WP.org software as is, it's kind of your fault, isn't it?

Re: WP Engine sent “cease and desist” letter to Automattic

#186
post #175

Earlier quoted context omitted.

Exactly, the extortion is the most serious allegation, but WPE isn't providing a lot of background in terms of what and how much Mullenweg was demanding, only texts that came well after the demand was made. My guess is if there's a really damning email, WPE's lawyers served them a legal hold privately rather than make it public. Alexa, order ten cases of popcorn...

Matt admitted on reddit that he asked for 8% of annual revenue or ~40 million. https://www.reddit.com/r/Wordpress/comments/1fnz0h6/comment/... He posted this after receiving the C&D.

Cool, thanks for the link. I wonder how much of Automattic's board is made up of Matt's personal friends. He'd best hope it's a majority.

Re: WP Engine sent “cease and desist” letter to Automattic

#187
post #39

I'm not a lawyer, as you will soon realize. This is just water cooler talk, which is what HN is for. 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 th…

The defamation angle is not interesting.

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)

Re: WP Engine sent “cease and desist” letter to Automattic

#188
post #71

Earlier quoted context omitted.

The most damning claim, I think, is that Automattic put a banner in every WordPress dashboard on the subject, including WordPress instances hosted by WPE. Automattic is a direct competitor to WPE (by way of WordPress.com). I'm no lawyer but I expect there's at least some argument to be made that there's some abuse of Automattic's position in doing so (though I don't know enough about the law to know whether they have…

"Abuse of position" is not generally an actionable claim.

Unfair competition is, particularly in California, which interprets it's UCL very broadly.

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.

Re: WP Engine sent “cease and desist” letter to Automattic

#189
post #39

I'm not a lawyer, as you will soon realize. This is just water cooler talk, which is what HN is for. 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 th…

>6. Claiming that WP Engine’s investor doesn’t “give a dang” about Open Source ideals.

But dang is not theirs to give!

Re: WP Engine sent “cease and desist” letter to Automattic

#190
post #4

> Automattic CEO and WordPress co-creator Matt Mullenweg unleashed a scathing attack on a rival firm this week, calling WP Engine a “cancer to WordPress.” In my experience, WordPress itself could be called a Cancer to the Web. The amount of new clients I've picked up who needed help rescuing broken and malware ridden WordPress sites is... well, it's more than I'd like as I really do not enjoy WordPress LOL

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