Things get nasty in lawsuit between WordPress.org and WP Engine

After years of nasty back and forth accusations between WordPress hosting provider WP Engine (WPE) and WordPress.org, the open source project that provides the software, on Wednesday WPE sued WordPress.org in federal court, accusing WordPress.org, which is affiliated with a for-profit company called Automattic, of trying to extort money from it.

“Over the last two weeks, [WordPress] has been carrying out a scheme to ban WPE from the WordPress community unless it agreed to pay tens of millions of dollars to Automattic for a purported trademark license that WPE does not even need,” the lawsuit filing said. “Defendants’ plan, which came without warning, gave WPE less than 48 hours to either agree to pay them off or face the consequences of being banned and publicly smeared. In that short time, Defendants sent ominous messages and photos designed to intimidate WPE into making an extortionate payout. When WPE did not capitulate, Defendants carried out their threats, unleashing a self-described ‘nuclear’ war against WPE.”

WordPress.org responded by posting its own harshly-worded response on its site, titled “WP Engine is banned from WordPress.org.” 

“WP Engine is free to offer their hacked up, bastardized simulacra of WordPress’s GPL code to their customers, and they can experience WordPress as WP Engine envisions it, with them getting all of the profits and providing all of the services,” the post said, adding that if “WP Engine wants to control your WordPress experience, they need to run their own user login system, update servers, plugin directory, theme directory, pattern directory, block directory, translations, photo directory, job board, meetups, conferences, bug tracker, forums, Slack, Ping-o-matic, and showcase. Their servers can no longer access our servers for free. The reason WordPress sites don’t get hacked as much anymore is we work with hosts to block vulnerabilities at the network layer. WP Engine will need to replicate that security research on their own.”

In its lawsuit, WP Engine focused much of its attack on Automattic founder Matthew Mullenweg, accusing Mullenweg of lying to the US Internal Revenue Service (IRS) and the state of California about control of WordPress, and questioning whether it was truly being controlled by a non-profit.

“The WordPress source code and trademarks were initially owned by Defendant Matthew Mullenweg’s for-profit company, Defendant Automattic Inc.. In 2010, in response to mounting public concern, the WordPress source code and trademarks were placed into the nonprofit WordPress Foundation, which Mullenweg created, with Mullenweg and Automattic making sweeping promises of open access for all,” the filing said. “What Defendants’ statements and assurances did not disclose is that while they were publicly touting their purported good deed of moving this intellectual property away from a private company, and into the safe hands of a nonprofit, Defendants in fact had quietly transferred irrevocable, exclusive, royalty-free rights in the WordPress trademarks right back to Automattic that very same day in 2010. This meant that far from being independent of any company as Defendants had promised, control over the WordPress trademarks effectively never left Automattic’s hands.”

Enterprise impact

The WordPress relationship with enterprises is complicated. Although there is relatively little WordPress code in the mission-critical customer-facing sites from the largest enterprises, there are pockets of that open source code scattered throughout their systems.

As a practical matter, the WordPress impact on enterprises is much greater when the extended global enterprise is considered. WordPress is rampant throughout cloud environments as well as supply chain companies and all manner of suppliers, distributors, and many SaaS platforms. 

In other words, if both of these companies and their customers were to start crashing, enterprises would likely feel it in many ways. 

As well as filing its lawsuit, WP Engine issued a statement: “Matt Mullenweg and Automattic’s self-proclaimed scorched earth campaign against WP Engine has harmed not just our company, but the entire WordPress ecosystem. The symbiotic relationship between WordPress, its community and the businesses that invest millions to support WordPress users, and advance the ecosystem, is based on trust in the promises of openness and freedom. Matt Mullenweg’s conduct over the last ten days has exposed significant conflicts of interest and governance issues that, if left unchecked, threaten to destroy that trust. WP Engine has no choice but to pursue these claims to protect its people, agency partners, customers, and the broader WordPress community.”

And then late on Thursday, Automattic issued its own response: “Last night, WP Engine filed a baseless lawsuit against Automattic, Matt Mullenweg, and WordPress.org. Their complaint is flawed, start to finish. We vehemently deny WP Engine’s allegations — which are gross mischaracterizations of reality — and reserve all of our rights. Automattic is confident in our legal position, and will vigorously litigate against this absurd filing, as well as pursue all remedies against WP Engine. Automattic has retained Neal Katyal, former acting solicitor general of the United States, and his firm Hogan Lovells, LLP, to represent us.”

The response continued: “Mr. Katyal stated: ‘I stayed up last night reading WP Engine’s Complaint, trying to find any merit anywhere to it. The whole thing is meritless, and we look forward to the federal court’s consideration of their lawsuit.’ Our focus is and has always been protecting the integrity of WordPress and our mission to democratize publishing. From our earliest days, our highest priority has always been our customers. WP Engine can hardly say the same.”

Both companies will be hurt

Analysts decried the war of words, suggesting that the emotional intensity could come back to hurt both companies. 

Melody Brue, a VP/principal analyst for Moor Insights & Strategy, dubbed the words from both firms “a pissing contest” and said that “the longer term implications are that it could scare people away from supporting both companies. It might even scare some people away from open source.”

Enterprise CIOs are a nervous bunch and she said that if the battle doesn’t end soon, some CIOs could get “spooked.”

“As it sits now, nobody is coming out of this looking good,” Brue said. “This type of toxicity will repel people at all levels, including their potential talent pool. Without those engineers, these companies don’t exist anyway.”

Michele Rosen, an IDC research manager tracking the open source ecosystem, said the lawsuit got very personal very quickly.

“The lawsuit is less about open source trademark issues and more about the interactions,” Rosen said. “That blog post contains a level of vitriol that goes beyond the obvious elements.”

Rosen agreed with Brue that this fight could quickly hurt both companies, especially in the eyes of enterprise CIOs, saying it could make both companies appear “radioactive.”

“I certainly think that they will both lose business,” she said.