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As we have already mentioned yesterday, Matt Mullenweg, founder of Automattic, the company that develops and maintains projects like WordPress, WooCommerce, Jetpack, and other open source software, has taken a strong stance against WP Engine, a company that specializes in high-performance hosting for WordPress sites. Mullenweg has decided to ban WP Engine from the WordPress community, publicly accusing them of exploiting the platform without contributing meaningfully.
In a recent intervention, Mullenweg labeled WP Engine as “a cancer for WordPress”, lashing out at their alleged lack of financial and technical contributions to the project. According to Mullenweg, WP Engine benefits enormously from the use of WordPress software without giving anything back in terms of community support or code development. He pointed out that WP Engine, despite its commercial success, dedicates just 40 man-hours a week to WordPress development and bug fixing, in contrast to the over 4000 hours that Automattic invests weekly in maintaining and evolving the project.
Mullenweg called this disparity “unthinkable,” suggesting that A platform that derives so much value from WordPress should contribute more to ensure the growth and sustainability of the open source project on which its business is based.. His statements were perceived by many as a direct attack not only on WP Engine, but on all those companies that use WordPress for commercial purposes without actively contributing to the community, opening a heated debate on the ethics of companies that exploit free software.
Automattic has made serious accusations against WP Engine, According to Automattic, WP Engine has built a financial empire, valued at over $400 million in annual revenue, by inappropriately using Automattic's trademarks, including the well-known WordPress and WooCommerce. This situation, for Automattic, constitutes not only a trademark abuse but also a dilution of the symbolic and commercial value of these brands.
Automattic claims that WP Engine has exploited the reputation and trustworthiness of the WordPress and WooCommerce trademarks to attract customers and generate significant revenue, without due recognition or adequate compensation to the WordPress Foundation, which owns the commercial rights. Automattic noted that this behavior has led to significant confusion in the marketplace, with consumers potentially mistakenly assuming that there is an official partnership or endorsement between WP Engine and the WordPress or WooCommerce platforms.
Additionally, the cease and desist letter sent by Automattic to WP Engine describes how the unauthorized use of the trademarks has not only negatively impacted the perception of Automattic’s brands but has also eroded the goodwill that Automattic has built around these trademarks over the years. Goodwill, defined as the good name and commercial value that accrues from a brand’s reputation, is crucial for companies operating in the digital economy and technology, sectors where customer trust and loyalty are paramount.
But let's look at it from a purely legal point of view.
WordPress, one of the most popular Content Management Systems (CMS) in the world, is released under the GPL license (General Public License), one of the most widely used and well-known open source licenses. This license allows for a great deal of freedom in the use, modification, and distribution of software. However, with the growing popularity of platforms like WP Engine, which provide services based on WordPress, there have been legal and philosophical discussions about what obligations, if any, exist towards Automattic, the company that develops much of the WordPress software. In this article, we will examine the legal framework in which WP Engine and other similar companies operate, from an analysis of the GPL license, to concepts related to trademark, to an exploration of the concept of “fair use” and how it applies in this context.
The GPL License and Using WordPress
The nature of the GPL license
The General Public License (GPL) is a free software license that grants users the right to run, study, share, and modify the software. The most common version used by WordPress is GPLv2, although GPLv3 is available and used by other software projects.
The basic principle of the GPL is that anyone can take the source code, modify it, and redistribute it, as long as any modification or distribution is released under the same GPL license.. This ensures that the software remains free and open. Automattic, the company behind much of the development of WordPress, chose the GPL license for WordPress precisely to encourage this freedom of use and development by the community.
A Brief History of the GNU General Public License
The GNU General Public License (GPL) is one of the most influential licenses in the free software world, created with the goal of ensuring that software released under it will always remain free and accessible to all. Its origins date back to the 80s, when Richard Stallman, founder of the free software movement, started the GNU Project with the intent of developing a free operating system that would not impose restrictions on the use, modification and distribution of the source code.
The first version of the GPL was published in 1989 by the Free Software Foundation (FSF), founded by Stallman himself, to give a legal framework to the concept of free software. The main goal of the GPL was to ensure that users had four fundamental freedoms: the freedom to run the program for any purpose, the freedom to study how it works and change it, the freedom to redistribute copies, and the freedom to improve the program and distribute those improvements to the public.
The best known and most widely used version of the GPL is the second, released in 1991, which extended and clarified some of the provisions of the original license, introducing important protections against practices that could limit users' freedom, such as the inclusion of patent-protected software.
In 2007, the third version of the GPL (GPLv3) was released, which addressed emerging issues such as digital rights management (DRM) and patent disputes. Although many open source communities, such as the Linux community, continue to use GPLv2, GPLv3 has been adopted by numerous projects to further strengthen the protection of software freedom.
The GPL has had a profound impact on the growth of the open source movement, providing a clear legal basis to ensure that software remains free and modifiable by anyone, and fostering a culture of sharing and collaboration.
The right to modify and redistribute the code
One of the most important features of the GPL is that it allows companies and individuals to take the WordPress code and use it as the basis for their own services or products, even if they modify them significantly. There is no obligation to share improvements or changes with the community unless you distribute the modified software. This is especially relevant in the context of services like WP Engine, which use WordPress in a “software-as-a-service” (SaaS) or “platform-as-a-service” (PaaS) mode.
In the case of a SaaS or PaaS model, the software runs on WP Engine’s servers and is offered as a service to customers. Since WP Engine does not directly distribute the modified software to its users, it is not obligated to share any changes to the code. This is perfectly in line with the GPL, since the license does not require sharing the source code if the software is used only internally or offered as a service.
The absence of financial contribution obligations
A key point of the GNU General Public License (GPL) version 2 is that it does not impose any economic or financial obligations on its users, as clearly stated in Article 1: “You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee.” This means that anyone can take, modify, and redistribute the software without having to pay royalties or compensation to the copyright holders, like Automattic in the case of WordPress. The GPL allows the freedom to use and share the software without financial restrictions, unlike proprietary licenses, and therefore companies like WP Engine can use WordPress without having to contribute money or give back to the community.
The “WordPress” trademark and the use of “WP”
WordPress Brand Protection
Although the WordPress code is released under the GPL, the name “WordPress” is a registered trademark owned by Automattic. This means that while anyone can use the software, using the name “WordPress” to promote services or products is subject to trademark law. Automattic has established clear guidelines on the use of the “WordPress” trademark, specifying that the term cannot be used in domain names or company brands without explicit permission. This is in line with international trademark law, which allows trademark owners to protect the integrity of their brand.
However, Automattic has also clarified that using the “WP” abbreviation is acceptable as we can see in the following screenshot retrieved from WayBack Machine (before Matt Mullenwegh changed it these days due to the WP Engine issue). This is a crucial point in the context of WP Engine using “WP” as part of their branding. While “WP” is commonly recognized as an abbreviation for WordPress, it is not subject to the same legal restrictions as the full name “WordPress.” Legally, this means that WP Engine is perfectly legal to use “WP” in their branding without violating any of Automattic’s rights.
Here's how it looks today, 4 days later, after they changed it.
The Distinction Between “WordPress” and “WP Engine”
One issue that has been raised in some discussions is whether WP Engine’s use of “WP” could cause confusion among consumers, making them believe that they are directly affiliated with Automattic or the WordPress project. However, from a legal perspective, there does not appear to be a significant risk of confusion. WP Engine is clearly a separate entity that provides WordPress-based services, but it is not officially associated with Automattic. Additionally, the “WP Engine” branding is sufficiently distinct from “WordPress” that it will not cause confusion for most consumers. It is important to note that trademark law protects against confusing use of a mark, but the use of an abbreviation such as “WP” is generally considered legitimate, especially when used in a context that clearly does not imply a direct affiliation.
The Concept of “Fair Use” in the Context of Trademarks
What is meant by “Fair Use”
The concept of “fair use” is a legal principle that allows limited use of copyrighted or trademarked materials without the owner’s consent, as long as such use is justified and does not cause confusion or damage the trademark. In the context of trademarks, fair use allows third parties to use a trademark to refer to the product or service protected by the trademark, for example to describe the compatibility of a product or service with that of the trademark owner.. This is especially common in the technology industry, where companies often use well-known brand names to indicate that their products or services are compatible with those of another vendor.
Applying “Fair Use” to WP Engine
In the case of WP Engine, the use of the term “WP” can be considered an example of fair use. WP Engine provides WordPress-based services, and the use of “WP” in the company name serves to clearly indicate to consumers that the services offered are intended for WordPress users. This type of descriptive use is generally considered legally legitimate as long as it does not cause confusion or mislead consumers as to the origin of the goods or services. As mentioned above, WP Engine does not use the full name “WordPress” and does not claim to have an official affiliation with Automattic, further reducing the risk of trademark infringement.
WP Engine and the Ethics of Open Source
In addition to legal considerations, it is useful to examine the ethical issues raised in the Automattic-WP Engine discussions. Although the GPL does not impose any financial or community contribution obligations, there are some who argue that companies that profit from open source software should contribute to the original project, either financially or through code contributions. This is a common debate in the open source world, where there is a tension between the freedom to use and the responsibility to help maintain the project.
However, legally, WP Engine is not obligated to contribute anything to WordPress. The GPL is designed to ensure that anyone can use the software without restriction, and requiring financial or technical contributions would be against the spirit of the license. That said, many companies voluntarily choose to contribute to the open source projects they profit from, both for ethical reasons and to ensure the long-term sustainability of the software they rely on.
Conclusion
Legally, WP Engine operates fully in compliance with the GPL license and trademark laws. The GPL license allows WP Engine to use, modify, and offer WordPress as a service without having to pay anything to Automattic or share their modifications.. Furthermore, the use of the term “WP” in the WP Engine trademark does not violate any rights of Automattic, as it does not create confusion with the trademark “WordPress”. Finally, the concept of “fair use” further strengthens the legitimacy of using “WP” to indicate the compatibility of WP Engine services with WordPress.
In conclusion, WP Engine and other companies that offer WordPress-based services can operate freely under the current legal framework, without having to respond to requests for financial assistance or modifications from Automattic, as long as they comply with the terms of the GPL license and trademark laws.
