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

Thu Dec 16 00:04:32 UTC 2010

"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."

On Wed, Dec 15, 2010 at 4:02 PM, Chip Bennett <chip at chipbennett.net> wrote:

> 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/
> > >> >
> > >> >
> > >> >
> > >> > _______________________________________________
> > >> > wp-hackers mailing list
> > >> > wp-hackers at lists.automattic.com
> > >> > http://lists.automattic.com/mailman/listinfo/wp-hackers
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> > >>
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