| 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 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. :) |