Mullenweg and Pearson Square Off on Patents, GPL, and Trademarks

In a post titled “The Truth About Thesis.com,” Chris Pearson responded to the recent heated discussions about his legal battle with Automattic over the Thesis.com domain and related trademarks. His public response revives a five-year old licensing disagreement.

“I think the most important place to start is by asking: Why would Automattic—a website software company with over $300 million in funding—buy thesis.com when I owned the trademark for Thesis in the website software space?” Pearson asked.

In February 2013, Pearson started negotiations with a domain broker named Larry of GetYourDomain.com in an attempt to purchase thesis.com. He opened with an offer of $37,500 which he considered to be more than enough for an unused domain. After months of negotiating, the deal fell through.

Email shared by Pearson showing Mullenweg’s interest in the domain

“I didn’t see how Matt could justify buying the domain for $100,000. Because of my trademark, there was no way he could legally use the domain for Automattic, and therefore, I didn’t believe there was a reason for him to spend that much money,” Pearson said.

Nine months after negotiations failed, Pearson received an email from Larry asking if he’d like to renegotiate since Mullenweg showed interest in the domain. Further negotiations went nowhere and Mullenweg won the domain for $100K.

News of Mullenweg’s purchase didn’t reach the public until he replied to a question about WordPress’ relationship with commercial theme providers at the 2014 State of the Word Q&A. In his response, he encouraged the audience to visit Thesis.com. Notice Mullenweg’s delivery and how the crowd reacts to his announcement.

Pearson also accused Mullenweg of violating his trademark.

Principles? Matt spent $100,000 to buy thesis.com—a domain in which he had no legitimate business interest—forwarded the domain to his property, and violated my trademark.

This is ironic considering how vigilant Matt has been about protecting the WordPress trademark—especially as it relates to domain names.

Pearson goes on to describe his duty to protect to his trademark and the details of the UDRP Case Ruling, as well as the fallout regarding the court’s decision in Automattic’s favor.

“It’s time for the community to ask itself if using $300 million in funding to purchase $100,000 domains, fund aggressive lawsuits, and fuel unending drama is properly representative of the WordPress project,” he said.

Pearson admitted to “being a jerk” both in the post and the comments. This admission is based on his attitude and the way he presented himself in 2010 in the interview with Andrew Warner on Mixergy. Mullenweg focused on the fact that Pearson changed the licensing structure of Thesis so that part of it is incompatible with the GPL:

“So why do the exact same thing you did before, change your license to violate the GPL and take rights away from your users? And then litigate against someone else?” Mullenweg asked.

He is referring to Thesis’ license agreement customers agree to when they purchase the theme. The agreement has terms that take user freedoms away that GPL licensed software provides. Here are a few of terms in the agreement:

You can’t sell, rent, or otherwise transfer the software to anyone else.

The license provides you, and only you, with the rights to use the software for its intended purpose.

Other than for educational purposes, any modification of the Thesis “core” is prohibited.

Mullenweg is well known as a zealous protector of the GPL and users’ rights. However, Pearson and many others perceived his comments on licensing to be a distraction from the main issue.

In responding to commenters on whether the issue is dead, he said:

The issue isn’t dead — Chris went back on his word and re-changed his license to be 100% proprietary and violate the GPL, sneakily sometime in the past 5 years since the last time he did that. He also patented how themes work, and color pickers.

The patent Mullenweg is referring to was published in September of 2012. The patent describes systems, servers, and methods for managing websites using the Thesis software. One of the fears is that the patent is vague and closely describes how WordPress themes work in general, although Pearson claims the patent has nothing to do with WordPress.

Pearson clarified Thesis’ new proprietary licensing, which Mullenweg believes to be in violation of their agreement in 2010:

In October 2012, I released an all-new version of Thesis that carried the same name as the original (which had a split-GPL license), but that’s where the similarities stopped.

The new Thesis is not a Theme—it is an operating system for templates and design. This system runs Skins and Boxes, which are similar to Themes and Plugins, but with a boatload of built-in efficiencies that Themes and Plugins cannot provide.

Skins and Boxes carry MIT licenses, which are not only open source, but also easy for anyone to understand and use.

There is nothing sneaky about the licensing structure that has been in place since October 2012. DIYthemes customers must agree to the proprietary licensing on the Thesis core before downloading and using the software.

After Mullenweg purchased the domain, he received no personal communication from Pearson on the issue until Automattic was hit with litigation. The litigation stems from Pearson trying to protect his trademark.

“I don’t know the last time I got an email from Chris directly (3+ years?), and myself and Automattic didn’t hear anything from him before we got the litigation notice he was trying to seize the domain,” Mullenweg commented. “No questions, no concerns, no offer to resolve, no discussion, we were just hit with legal action out of the blue.”

In a comment published on Pearson’s blog post, Mullenweg contends that Pearson is repeating the same mistake he made in 2010 by not licensing Thesis as GPL.

“It doesn’t matter if you admit what you did was wrong in the past if you go and do the exact same thing again: violate the GPL, and make it worse by patenting common theme practices,” he said.

Up until this point, Mullenweg has declined to comment directly on Automattic’s interest in purchasing thesis.com in the first place. There are a lot of forces at play, including patents, GPL adherence, trademarks, and domain names. This is a developing and complicated story that we’ll continue to keep our eyes on.