Openverse, a WordPress Project
A dive into a project most of us think nothing about: Openverse.
On Monday, both Automattic and WP Engine filed documents with the court, outlining their proposals for a preliminary injunction. As expected, they submitted “dueling” orders, which the judge requested if the parties were unable to find a middle ground.
Regarding the orders themselves, WP Engine’s order reads exactly as I’d expect: a draft order that the judge can immediately sign, if she so chooses. She won’t,[1] but she absolutely could because the drafted order was written in a standard legal format.
Automattic’s order is… not an order. I’m not entirely certain what strategy Automattic is employing with their submissions. What Automattic has submitted to the court is, perhaps, a “framework” for creating a draft order, but it itself is not a draft order. I am still not a lawyer, but I can only conceive of three strategic reasons to approach the judge’s request in this manner.
First: confusion. The judge explicitly noted that she felt the two parties would be better positioned to create the correct amalgamation of technical and legal jargon needed for this kind of preliminary injunction. In not submitting something the court could directly use, Automattic could be relying on the judge being confused, and writing an order that, ultimately, is not meaningful. Consider how Automattic’s submission presses on providing “unauthenticated” access to WordPress.org, lightly expanding the situation today (effectively, opening up the WordPress.org API). Would the judge not catch this? From what I’ve seen, heard, and read, Judge Martínez-Olguín (AMO) is incredibly sharp—while she may lack in technical prowess, it’s a risk to assume she won’t call this kind of approach what it is: BS.[2][3]
Second: delay, delay, delay. Related to the above point, in making it harder to craft an order that is both effective and what the court feels reasonable at this stage, Automattic may be buying itself more time. Testing the court’s patience, however, is not a good idea. The worst case scenario, though, is that Judge AMO signs WPE’s draft order—this is the case that Mullenweg called “fine” during his interview at TechCrunch Disrupt.
Third: appeal. During the hearing on November 26, Judge AMO was clear that she was inclined to sign a (more targeted) order for a preliminary injunction. Her mind was already made up. But, Automattic’s Exhibit A cites case law—why?[4] Automattic had the ability to cite case law in its response to WPE’s motion and they did not cite this specific case. At the hearing, Judge AMO explicitly dismissed WPE’s lawyer, when she raised actions that were not in evidence.[5] The only reason I can think to cite new case law is in preparation for appeal.
Whatever the case, I still expect we will see a preliminary injunction this week, assuming the Bay Area wasn’t too rattled by the earthquake today.
While we wait for the judge to issue a preliminary injunction, it’s important to continue thinking through the broader view, and how this case and the war Mullenweg created around it affects the WordPress ecosystem. This case will take two or more years to resolve, but the actions taken by Mullenweg continue to demonstrate the fundamental issues within the WordPress ecosystem today.
Here’s what should be a very simple question: Who owns Openverse?
First there was CC Search
In 2021, Creative Commons had a problem: maintaining the “CC Search” product was no longer practical. It had likely never been profitable but, as a non-profit, this isn’t inherently a problem—non-profits are unprofitable by definition. Instead, Creative Commons delivers against their mission, which is “to help build and sustain a thriving commons of shared knowledge and culture.” While CC Search aligned with their vision in the years prior, the maintenance and ownership of the product was no longer something they could justify.
Enter, Matt Mullenweg.
While we can’t know what happened behind the scenes ahead of April 27, 2021, on that day, Mullenweg posted on his personal blog: CC Search to join WordPress.org. That same day, the transition to WordPress.org infrastructure began, with a new Slack channel, GitHub repositories, and a new “Make” site to coordinate the endeavour. The new product would be called “Openverse”, removing “Creative Commons” from the title, but maintaining a search engine dedicated to CC-licensed and public domain works on the Web.
A team was formed to shepherd the transition and maintain the site, with Creative Commons employees hired by Automattic[6] and working alongside existing Automatticians, who spearheaded the initiative.
Over the course of the months that followed, the search engine was redesigned and rebranded, trademarks were acquired for the new name, and the new site was launched on December 13, 2021 (make/openverse post).
Then there was Openverse™
As part of the transition, CC Search needed a new name. No doubt some lawyers spent a while validating the new “Openverse” name, but it wasn’t until July 6, 2021, that the “Openverse” mark was filed with the USPTO. The trademark application is still open, as of this writing, as the USPTO continues to exam the application.[7] A month later, on August 12, 2021, the logo application was filed with the USPTO—it was approved and marked as registered by the USPTO on January 17, 2023.[8]
The application of the wordmark was made by the WordPress Foundation, with Mullenweg signing the paperwork with a title of “CEO.”[9] Meanwhile, on the trademark application for the logo, Mullenweg signed the paperwork with a title of “Founder.” On November 10, 2022, Chloe Bringmann—with a title of “Chief of Staff”—signed a “statement of use” for the logo, noting first use was July 20, 2021. Bringmann signed a “statement of use” for the wordmark on May 23, 2023, noting first use was April 27, 2021.
Notably, the Openverse trademarks are listed in the WordPress Foundation’s Trademark Policy, as the WordPress Foundation nominally owns these trademarks.
Looking solely at trademarks, one could assume that Openverse is a WordPress Foundation initiative. However, the trademark policy is the only reference to “Openverse” on the WordPress Foundation’s website.
Then there was WordPress.org
This is where things get more complicated.
In the footer of Openverse.org, the site notes that it is “Part of the W project”, with a link to WordPress.org. On its Privacy page, Openverse clearly states “Openverse adheres to the privacy policy of all WordPress.org websites.”
As the community has so clearly discovered recently, WordPress.org is owned solely by Mullenweg, as his own personal site. In using Openverse, you are agreeing to the privacy policy drafted by Mullenweg. In allowing Openverse to utilize analytics to “Record custom events and page views”, you’re agreeing to allow Mullenweg to utilize those analytics, however he personally deems fit.
Untangling the web of Openverse ownership just got a bit more complicated.
And then there were the public statements
Looking further, we have a more direct statement we can rely on. On May 10, 2021, Josepha Haden Chomphosy, then Executive Director of WordPress, interviewed Matt Mullenweg as part of WP Briefing — The WordPress Podcast. In that interview, Chomphosy directly asks Mullenweg what entity Openverse lives under. The exchange is interesting (my emphasis; lightly edited for clarity):
Josepha Haden Chomphosy: There is a burning question that I feel like we probably should just go ahead and answer here. I’ve been asked a few times, and I think you have been asked a few times whether this is an actual acquisition. And If yes, then what entity is it under? Is it under the WordPress Foundation? Is it under Automattic?
Matt Mullenweg: It’s a little complicated because, as you know, WordPress.org is not part of the Foundation. So basically, Automattic paid Creative Commons, the nonprofit. They will essentially redirect the old URL, so old links to Creative Commons Search won’t break. And we ended up hiring some of the people that they were parting ways with into Automattic. And then we put that open source code, and we’ll run the service on WordPress.org, and then those we hired, Automattic hired, will contribute to WordPress.org and the open source projects that power what we’re calling Openverse now.
Matt Mullenweg: That’s kind of an acquisition, but also from a nonprofit, and then going into something, which is not a nonprofit, but is open source and sort of freely available, which is WordPress.org, the website.
Josepha Haden Chomphosy: Yeah, that has been hard for me to answer because you’re right, it’s not like it was donated to WordPress or something. But everything that we’re doing is being donated back to the project, and of course, hopefully, really living into that WordPress ethos that we have of giving back to, to the project, something that made your work and your life better. So there’s some, some finger-crossing going on in there.
And there is our answer. To sum up:
- Automattic paid Creative Commons to redirect CC Search to Openverse (on WordPress.org, Mullenweg’s personal site).
- Automattic hired some Creative Commons employees to continue their work on
CC SearchOpenverse. - The WordPress Foundation filed trademarks for Openverse, which they do not use, only Mullenweg does on his Openverse website
- Mullenweg hosts and runs Openverse on his WordPress.org infrastructure
Mullenweg phrases this in his announcement post as CC Search “joining the WordPress project” (which Automattic reiterated).[10] In turn, the trademarks live under the WordPress Foundation. But, the project itself seems fully owned, managed, and run by Mullenweg, under the auspices of his WordPress.org website, with work paid for by Automattic.
So… Who owns Openverse?
Anna Tumadóttir, now CEO of Creative Commons, thinks that the WordPress Foundation is “stewarding” the project, though, reminder, there is no mention of Openverse on the WordPress Foundation’s website, outside of trademark usage. An Automattic engineer who worked on the Openverse codebase, also considered it to be a WordPress Foundation project. But, it’s not—there’s no Foundation involvement of any kind, other than owning the trademarks.
Openverse seems to be part of WordPress.org. That is, owned by Mullenweg, with assets across other entities he owns and manages: Automattic and the WordPress Foundation, in this case. The Foundation merely owns the trademarks, and Mullenweg (as a Foundation board member) has given himself permission to use the Openverse trademark (that he paid to create, via Automattic), to run the site (that he owns personally) that one of his companies (Automattic) effectively bought from Creative Commons.
If that paragraph above makes your head spin, you are not alone. The convolution of the WordPress project seems to know no bounds. As we gradually delve deeper into it, a chaotic and perplexing picture emerges, one that becomes increasingly more difficult to comprehend. Openverse is but one of the many moving pieces of the WordPress ecosystem, and, as best I can tell, it’s another one that seems fully and completely under Mullenweg’s control.
I am not a lawyer, but I suspect the language used in WPE’s filing is a bit too opinionated. WPE absolutely got more specific (as the judge requested), but they also added in a hint of opinion to their wording. I’d suspect the judge uses it as the basis for an order, but modifies the language to better match her opinion of the state of things. ↩︎
Or, in legal parlance, “wasting the court’s time.” ↩︎
Two footnotes in the same spot? I know, I know… The other risk I see is getting on the judge’s bad side. This is not a good idea. From everything I’ve seen and read thus far, Hogan Lovell (Automattic’s attorneys) seem to be more petty and less process-focused, both things that will slowly annoy the judge. ↩︎
Specifically, All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). ↩︎
“It's also not in front of me because it’s after the briefing and this matter is closed. So, keep it moving.” ↩︎
In Mullenweg’s initial post on the topic, he notes that “Automattic has hired key members of the CC Search team and will sponsor their contributions as part of our Five for the Future commitment.” ↩︎
The government really does work this slowly. ↩︎
The government really does work this quickly. ↩︎
I did not know Mullenweg was CEO of the WordPress Foundation at any point in the past. ↩︎
This begs an interesting question: Does Mullenweg equate “WordPress.org” with “the WordPress Project?” In reading his public statements about Openverse and other topics, I think that might be the case, which sets his statements in a different light. See also my post about how to use the term “WordPress.org.” ↩︎
