[wp-hackers] Licensing and Copyright Issues with the Hello Dolly Plugin

Thu Dec 16 00:02:59 UTC 2010

Actually, it's the other way around: if the copyright owner can refute any
one of the four components of the fair-use defense, then the use will be
deemed to be infringing. Now, certainly, there's a
degree-of-impact/infringement regarding each of the four components, but in
this case, I don't see how that helps.

Again: the educational use of the *Plugin* has nothing to do with the
educational use of the *copyrighted work*. The educational use regards
WordPress Plugin development, and nothing to do with the nature of the
copyrighted work (song lyrics), e.g. music appreciation, composition, etc.

"Hello, Dolly!" lyrics have nothing to do with WordPress Plugin development.
*Any* lyrics (or non-lyrical text, for that matter) could be used to
demonstrate the explode performed by the Plugin. Thus, use of the "Hello,
Dolly!" lyrics does not further the educational use of the Plugin.

And that's just Clause #1. Clause #3 ends any argument. The entirety of the
copyrighted work is incorporated into the Plugin.

Chip

On Wed, Dec 15, 2010 at 5:29 PM, Ryan Bilesky <rbilesky at gmail.com> wrote:

> The educational use, IMO, is how the wordpress plugin system works.  Not to
> mention the use is also non commercial.
>
> Also it is my understanding that you do not have to meet all those
> criteria,
> just have a balande, thus meeting just 2 of them is probably good enough,
> meeting 3 or all 4 just makes an even stronger case.
>
> Again this is based on my understanding and intrerpretation, im not a
> lawyer
> but this seems obviously fair use to me.
>
> Anyway i'll leave it at that.
>
> On Dec 15, 2010 3:13 PM, "Chip Bennett" <chip at chipbennett.net> wrote:
> > 1. *Educational/Non-Commercial Use:* The use of the "Hello, Dolly!"
> > lyrics do not further any educational purpose of the Plugin, and lack of
> use
> > of those lyrics would not negatively detract from such educational
> purpose.
> > Any public-domain lyrics could be used in place of the copyrighted work,
> and
> > the educational purpose (to teach WordPress Plugin developers how to
> > implement certain Plugin API features and other functions) would be
> > furthered equally as it is with the copyrighted work being used. By the
> way:
> > distributing the Plugin with WordPress? That lessens the "educational
> use"
> > argument even more, because it makes the use less individual and/or
> > spontaneous.
> >
> > 2. *Nature of Copyrighted Work:* The nature of the copyrighted work -
> > lyrics to a song - does not inherently lend the work to be used in the
> > manner for which it is incorporated by the Plugin.
> >
> > 3. *Substantiality/Extent of Use:* The Plugin incorporates the entire
> > lyrics, not an excerpt or a snippet, but rather the entire work.
> >
> > 4. *Market Effect:* The Plugin has no effect on the market for the
> > original work.
> >
> > #1 and #3 will kill any attempt at a fair-use infringement defense.
> >
> > My primary concern is that the matter be taken seriously by the
> > powers-that-be. Given that wp-hackers isn't the appropriate venue for
> > ensuring that concern is met, I'll do my best to bow out of the
> discussion
> > now.
> >
> > Chip
> >
> > On Wed, Dec 15, 2010 at 5:08 PM, Ryan Bilesky <rbilesky at gmail.com>
> wrote:
> >
> >> I do think this would constitute fair use, in my non-professional
> (legally
> >> speaking) opinion.
> >>
> >> 17 U.S.C. § 107 Notwithstanding the provisions of sections 17 U.S.C. §
> 106
> >> and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such
> >> use
> >> by reproduction in copies or phonorecords or by any other means
> specified
> >> by
> >> that section, for purposes such as criticism, comment, news reporting,
> >> teaching (including multiple copies for classroom use), scholarship, or
> >> research, is not an infringement of copyright. In determining whether
> the
> >> use made of a work in any particular case is a fair use the factors to
> be
> >> considered shall include:
> >>
> >> 1. the purpose and character of the use, including whether such use is
> of
> a
> >> commercial nature or is for nonprofit educational purposes;
> >>
> >> 2. the nature of the copyrighted work;
> >>
> >> 3. the amount and substantiality of the portion used in relation to the
> >> copyrighted work as a whole; and
> >>
> >> 4. the effect of the use upon the potential market for or value of the
> >> copyrighted work.
> >>
> >> On Dec 15, 2010 1:50 PM, "hakre" <hanskrentel at yahoo.de> wrote:
> >> >
> >> >
> >> >> Von: Mark Jaquith <markjaquith at gmail.com>
> >> >> An: wp-hackers at lists.automattic.com
> >> >> Gesendet: Mittwoch, den 15. Dezember 2010, 21:06:29 Uhr
> >> >> Betreff: Re: [wp-hackers] Licensing and Copyright Issues with the
> Hello
> >> Dolly
> >> >>Plugin
> >> >>
> >> >> On Wed, Dec 15, 2010 at 12:31 PM, hakre <hanskrentel at yahoo.de>
> wrote:
> >> >> > In the related ticket #15769[2] lead developer markjaquith
> wrote[3],
> >> >> > the distribution of the code is intended for "non-commercial" and
> >> >> > "educational" use.
> >> >> >
> >> >> > If the use of the plugin is really limited to non-commercial and
> edu-
> >> >> > cational use, then this would be incompatible with the GPL as you
> can
> >> >> > not restrict commercial use of GPLed code.
> >> >>
> >> >> I said *no* such thing. I said "The purpose is non-commercial and,
> >> >> yes, educational." In context, it should be clear that I am talking
> >> >> about the purpose and rationale behind its *existence*, not
> >> >> establishing restrictions on its *use*.
> >> >
> >> > Please don't feel offended. Read my words, we're not far away from
> each
> >> > other:
> >> >
> >> > I wrote "Intended" you wrote "Purpose".
> >> >
> >> > Then I wrote "IF the use of the plugin is REALLY limited". That's
> hypo-
> >> > thetical. If you would have written about a concrete limitation you
> can
> >> bet
> >> > that I would have reacted as concrete to it - not hypothetical.
> >> >
> >> >> It's bewildering that you'd
> >> >> jump to such a bad faith interpretation of my words.
> >> >
> >> > What I think is more important then to assume bad faith is
> >> > to think about the implications this has if the lyrics cause
> restrictions
> >> > of any kind to the GPLed code.
> >> >
> >> > It has been distributed to millions of sites of which I assume most of
> >> > it's users do not want to violate others license and instead want to
> >> > be able to use wordpress under the GPL in a non-violating way.
> >> >
> >> > That's just very bad news for all users incl. the ones who are
> >> developers.
> >> >
> >> >> Regarding copyright and fair use — I weighed in already. This is not
> >> >> an appropriate place to debate the matter.
> >> >
> >> > Sure, as the regulars all know that the selection of the Hello Dolly
> >> Lyrics was
> >> > and is a personal preference by Matt Mullenweg and is not related to
> >> > anything educational. It's just Matt's hobby. He loves jazz. It's a
> >> specific
> >> > text he wanted to have in there. I think that's the whole story behind
> >> the
> >>
> >> > Hello Dolly lyrics. That's where the plugin has it's name from even.
> >> >
> >> > That's why I would have never argued for fair use.
> >> >
> >> > For the reality we share and in a publicly viewable space, I can only
> >> suggest
> >> > to take care and fix this. Seriously. And with the best intentions.
> >> >
> >> > -- hakre
> >> >
> >> > http://hakre.wordpress.com/
> >> >
> >> >
> >> >
> >> > _______________________________________________
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> >> > wp-hackers at lists.automattic.com
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