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Opened 3 years ago

Last modified 2 years ago

#15769 reopened defect (bug)

WordPress ships with copyrighted "Hello, Dolly!" lyrics which could potentially terminate the GNU GPL of the package

Reported by: novasource Owned by:
Milestone: Future Release Priority: normal
Severity: normal Version: 3.0.2
Component: General Keywords: has-patch
Focuses: Cc:

Description

It is an industry standard practice to show licensing details when using someone else's copyrighted content. I can't find anything substantiating that WordPress has been granted a license to use the copyright Hello, Dolly! lyrics, so the prima facie appearance is that WordPress is infringing copyright of Jerry Herman, the song's composer.

Unless WordPress indemnifies users, Hello Dolly plugin users may be vulnerable to legal problems due to unauthorized use of Jerry Herman's intellectual property.

Please clarify WordPress's license of this copyrighted material in the module's source code or at wordpress.org.

Attachments (1)

free_software.diff (2.4 KB) - added by nkuttler 3 years ago.
Use GPL-compliant lyrics in the hello dolly plugin

Download all attachments as: .zip

Change History (73)

comment:1 novasource3 years ago

  • Keywords copyright license added; theft removed

Whoops, original keyword wasn't what I meant.

comment:2 filosofo3 years ago

Don't you think the Hello Dolly plugin falls under fair use? From the U.S. code:

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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

IANAL, but I would argue that it's nonprofit, educational, and has no effect on the market of the copyrighted work.

comment:3 follow-up: novasource3 years ago

It's absolutely not fair use. For one, WordPress, the product, is neither educational or nonprofit; it's purpose neutral.

comment:4 in reply to: ↑ 3 jorbin3 years ago

  • Keywords close added; intellectual property copyright license removed

Replying to novasource:

It's absolutely not fair use. For one, WordPress, the product, is neither educational or nonprofit; it's purpose neutral.

WordPress is trademarked to the WordPress foundation, a nonprofit organization.

Hello Dolly, the plugin, is designed to educate plugin developers.

comment:5 novasource3 years ago

  • Keywords intellectual property copyright license added; close removed

This is incorrect reasoning. Fair use would concern using Hello, Dolly! to teach something about the song. E.g., playing Hello, Dolly! in a music class.

Lifting the Hello, Dolly! lyrics to "teach" something wholly unrelated to the song is not fair use.

WordPress's nonprofit status does not exempt it from obeying copyright law.

comment:6 jorbin3 years ago

  • Keywords close added; intellectual property copyright license removed

Keywords are not tags.
http://codex.wordpress.org/Reporting_Bugs#Trac_Keywords

What do you have against a plugin that symbolizes the hope and enthusiasm of an entire generation?

comment:7 novasource3 years ago

  • Keywords close removed

"What do you have against a plugin that symbolizes the hope and enthusiasm of an entire generation?"

:-)

That doesn't exempt WordPress from obeying relevant copyright laws.

comment:8 follow-up: markjaquith3 years ago

  • Resolution set to invalid
  • Status changed from new to closed

The purpose is non-commercial and, yes, educational.

The nature of the copyrighted work is that it is a song, of which the lyrics are just one part (I'd argue, the less important and less essential part).

The amount of the portion of the lyrics is, indeed, total. But at a mere 80 words (disregarding the repeating bits), the lyrics rather defy excerption. This is our weakest showing on any factor, but considering the length of the lyrics, it's not a blatant failure.

There is absolutely no effect on the potential market or value of the song. Try and imagine a person saying "Well, I don't need to buy the song or sheet music for 'Hello Dolly,' because I have a copy of WordPress!" No.


Our use passes three of the four determining factors with flying colors. It is not unreasonable for us to consider this fair use. If Mr. Herman's lawyers disagree, they've remained silent on the matter for quite a long time.

comment:9 follow-up: novasource3 years ago

  • Keywords 2nd-opinion added
  • Resolution invalid deleted
  • Status changed from closed to reopened

Fair use for educational purposes means you must educate on the item being used. You can't use someone else's work just to decorate.

WordPress's uses someone's entire copyrighted work just to decorate. Nothing is being taught about about Hello, Dolly!, music, theater, etc. Hence not even a minimal basis for the educational provision.

Rogers v. Koons (http://en.wikipedia.org/wiki/Rogers_v._Koons) is a good example. Koons uses Rogers's work, in its entirety, to decorate a work. Koons's final work did not parody, educate on, transform, etc. Rogers's work. The court found Koons's work to violate copyright. An exception seems to be if the use of the work is transformative, but in this case it is certainly not.

WordPress's use of Hello, Dolly! is just like Koons's use of Rogers's work. WordPress is not teaching anything about nor commenting on Hello, Dolly!.

Also, "nonprofit" or "non-commercial" clarifies the educational use. Since there is no educational purpose in using Hello, Dolly! in this module, nonprofit is irrelevant.

Wikipedia has worked through this, and their fair use policy includes this proviso: "Non-free content [used under fair use] is used only if its presence would significantly increase readers' understanding of the topic, and its omission would be detrimental to that understanding." (http://en.wikipedia.org/wiki/Wikipedia:Fair_use) Hello, Dolly! does not enhance understanding of module creation versus equivalent, free content.

Please review http://www.copyright.gov/circs/circ21.pdf; in there, you'll find no basis for WordPress's unlicensed use of Hello, Dolly!.

I'd like to ask for a 2nd opinion from someone with reasoned experience of fair use.

comment:10 in reply to: ↑ 9 ; follow-up: dd323 years ago

Replying to novasource:

Also, "nonprofit" or "non-commercial" clarifies the educational use. Since there is no educational purpose in using Hello, Dolly! in this module, nonprofit is irrelevant.

The plugin itself, is a Example plugin, as such, It's an educational tool.

You can replace the Lyrics with any other Lyric or Text, and the plugins purpose remains the same, to educate new developers on how to hook into WordPress, Style their output, and for the new to PHP, how to handle & shuffle arrays to start with.

Of course, The Example plugin can be used for inspirational purposes as well, But hey, So can certain catalogues. Everything has a primary purpose to which it was designed to do over all others, and in this case, It's a Demo Plugin.

comment:11 hakre3 years ago

I think before discussing special cases of the copyright law that applies to some countries only by mostly non-lawyers we should first clarify the basics.

Can someone please ask the author of the hello dolly plugin if it is distributed under GPL or not?

The author is Matt Mullenweg and from what he wrotes on his blog and on worpdress.org he is stating that all plugins must be GPL. But for this case, I think Matt should jump in anyway and specify for Hello Dolly for clarifying this (again).

GPL does not limit the use to non-commercial btw, so the fair-use discussion is pretty useless as commercial usage must be assumed for hello dolly.

Next to that, the license in wordpress does not make use of the geographic limitation that it optionally offers, so to say, you can't only argument with US copyright law. But that only as marginal note.

Tag: FIXIPO

comment:12 follow-up: nacin3 years ago

Hello Dolly is GPL. Period.

comment:13 in reply to: ↑ 12 hakre3 years ago

Replying to nacin:

Hello Dolly is GPL. Period.

I just checked http://wordpress.org/extend/plugins/hello-dolly/ and the plugin itself does not document the license it is available under.

So please tell me on which fact you base that assumption.

comment:14 follow-up: nacin3 years ago

It's distributed as part of WordPress, ergo, GPL.

It's in the plugin directory without an explicit license header, ergo, GPL, per our own policies.

Matt's opinions on the subject are not exactly murky.

I'm not going to waste my time addressing this further.

comment:15 in reply to: ↑ 14 hakre3 years ago

Replying to nacin:

It's distributed as part of WordPress, ergo, GPL.

It's in the plugin directory without an explicit license header, ergo, GPL, per our own policies.

Okay, let's assume it's distributed under the terms of the GPL then.

Next question is then, does the plugin author/"we"/wp.org owns the rights to re-distribute the Hello Dolly lyrics under the terms of the GPL? I somehow have the feeling that this might not be the case.

comment:16 novasource3 years ago

You can replace the Lyrics with any other Lyric or Text, and the plugins purpose remains the same, to educate new developers on how to hook into WordPress, Style their output, and for the new to PHP, how to handle & shuffle arrays to start with.

So perhaps acceptable resolution to this issue is for the WordPress Foundation to license the Hello, Dolly! lyrics or replace with text with a permissible license? That wouldn't harm the plugin's alleged educational purpose.

Of course, The Example plugin can be used for inspirational purposes as well

"inspirational" is not a valid reason for fair use. :-)

Everything has a primary purpose to which it was designed to do over all others, and in this case, It's a Demo Plugin.

Then why is that nowhere in the Plugin's source code? The plugin's description is: This is not just a plugin, it symbolizes the hope and enthusiasm of an entire generation summed up in two words sung most famously by Louis Armstrong: Hello, Dolly. When activated you will randomly see a lyric from Hello, Dolly in the upper right of your admin screen on every page. Same for http://wordpress.org/extend/plugins/hello-dolly/.

Ergo, not even educational intent. The appearance is the plugin author has some emotional connection to the song and wanted to share that with all WordPress users. But that even is irrelevant to the crux of this bug report because that does not qualify something for fair use.

Can someone please ask the author of the hello dolly plugin if it is distributed under GPL or not?

Irrelevant. Nonprofit/non-commercial does not entitle one to disregard copyright law. Nonprofit/non-commercial is just a way to clarify legitimate educational use. Without clarifying educational use, nonprofit/non-commercial is irrelevant.

The use of Hello, Dolly! lyrics is not educational because, as per prior comments, A. nothing about Hello, Dolly! is being taught or commented on and B. the alleged educational purpose of the module would not be affected if the lyrics were replaced with text with permissible licensing.

comment:17 follow-up: novasource3 years ago

Next question is then, does the plugin author/"we"/wp.org owns the rights to re-distribute the Hello Dolly lyrics under the terms of the GPL? I somehow have the feeling that this might not be the case.

Agreed. With that logic, you could say that we could convert any copyrighted work to a free license if we included it in GPL-licensed program source code.

comment:18 in reply to: ↑ 17 nacin3 years ago

Replying to novasource:

Next question is then, does the plugin author/"we"/wp.org owns the rights to re-distribute the Hello Dolly lyrics under the terms of the GPL? I somehow have the feeling that this might not be the case.

Agreed. With that logic, you could say that we could convert any copyrighted work to a free license if we included it in GPL-licensed program source code.

It's ridiculous logic. The GPL was introduced into this conversation by hakre. No one is actually suggesting that.

comment:19 novasource3 years ago

Next to that, the license in wordpress does not make use of the geographic

limitation that it optionally offers, so to say, you can't only argument
with US copyright law. But that only as marginal note.

Since the project is essentially run in the US and is stewarded or heavily supported by a US-based foundation, it seems that compliance with US copyright law is a minimum requirement. I.e., you can't say including of Hello, Dolly! lyrics is OK because, say, Russian copyright law is more permissible. ("Russian" is just an educational example. :-))

comment:20 follow-up: hakre3 years ago

Sure, an us-american author is bound to us-copyright. But the wordpress foundation is not the author nor the publisher of the wordpress work. So I would just not count much on assumptions based on the foundation.

Just don't misread me. I wanted clarify some basic points first before going into a discussion about detailed stuff like educational, fair-use and non-commercial because it probably just does not applies here.

Same for the international law. If the plugin is violating copyright because the author does not have the right to distribute the hello dolly lyrics under the GPL, the you don't need to look much further.


Replying to markjaquith:

The purpose is non-commercial and, yes, educational.

I beg your pardon mark, but the purpose of wordpress is limited only by the GPL. The purpose therefore is by definition anything the GPL allows, explicitly including commercial usage.

If Mr. Herman's lawyers disagree, they've remained silent on the matter for quite a long time.

I'm not sure who owns the copyright of the lyrics and which restrictions apply, but unless it's not compatible with the GPL, you can not redistribute it regardless of the owner's rights and the action of their lawyers. And btw, I won't wait for their actions first but to keep things in order from the moment a problem has been located.

Otherwise wordpress.org is knowingly distributing self-violating GPL code which is a pure absurdity. Not to mention the copyright violation.

comment:21 in reply to: ↑ 20 mikeschinkel3 years ago

Replying to hakre:

Otherwise wordpress.org is knowingly distributing self-violating GPL code which is a pure absurdity. Not to mention the copyright violation.

Not wanting to step too deep into this I will say that courts view knowing violations as much worse than inadvertent violations. The fact that WordPress has been made aware of it means that, if no corrective action is taken and a court were to find a violation the damages would likely be treble, I think (although, of course, IANAL.)

comment:22 nkuttler3 years ago

Huh? If you distribute something as GPL to me, I get the right from you to distribute it under the terms of the GPL. If my right to distribute the code is limited by my motives being "educational" or "non-profit" you never had the right to distribute the code under the terms of the GPL.

Obviously, if the lyrics are not licensed in a GPL-compatible way all releases that contain them are GPL-incompatible.

comment:23 follow-up: nuclearmoose3 years ago

  • Keywords common sense added; 2nd-opinion removed
  • Severity changed from major to trivial
  • Type changed from defect (bug) to feature request

Ridiculous. Beyond ridiculous. GAFL. This whole debate is over the use of two words which neither causes harm to the copyright holder nor implies someone other than the original composer created the work. You don't need a license to write about the song. You don't need a license to quote a snippet of the song. You don't need to indemnify a reader of your work containing the song title or sample of the lyrics.
What we need here is common sense. I know I'm feeding the trolls here, so I apologize for that.
GAFL.

comment:24 novasource3 years ago

  • Keywords 2nd-opinion added; common sense removed
  • Severity changed from trivial to major
  • Type changed from feature request to defect (bug)

The debate right now is about including non-free content within a GPL-licensed product.

As for the alleged educational use, per above, use of this song's entire lyrics is not within an attempt to educate about or comment on the song or its art. The lyrics are used as mere decoration.

As further proof, the educational value of the Hello Dolly module is not diminished one bit if the copyrighted, non-free lyrics are replaced with lyrics under GPL-compatible licensing.

It is a wildly liberal reading of free use to allege that nonprofit educational organizations are exempt from copyright law, yet that is the logical end of the defenses of including the Hello, Dolly! lyrics in WordPress. Hopefully the WordPress project isn't being used as a proxy for a challenge to copyright laws.

What do you think would happen if we included a "snippet" of copyrighted Microsoft code in the WordPress project without permission from Microsoft? Is Jerry Herman's intellectual property different?

comment:25 nuclearmoose3 years ago

  • Keywords Troll food added; 2nd-opinion removed
  • Severity changed from major to trivial
  • Type changed from defect (bug) to feature request

Dear novasource.

  1. You are a troll.
  2. Yes, I'm STILL feeding you. May the WordPress community forgive my transgressions.
  3. WTF does including a snippet of MS code have to do with any of this? You are reaching.
  4. Why are there 10x lyric sites out there? Why aren't they being sued and forced to shut down? Reason - because they ADD VALUE to the music by providing a way for people to enjoy their favourite songs. Why don't you go and bug them instead? They are making money off of advertising while displaying lyrics. WP is free, and always will be.
  5. Fixed the severity for you. Will to continue to do so as necessary.
  6. Where you born a Luddite or are you aspiring to be their leader?
Last edited 3 years ago by nacin (previous) (diff)

comment:26 in reply to: ↑ 8 chipbennett3 years ago

Replying to markjaquith:

The purpose is non-commercial and, yes, educational.

I wouldn't count on a court agreeing with you on the first fair-use clause. Yes, the use is educational and non-commercial in nature; however, use of <em>those specific lyrics</em> is not required in order to accomplish that purpose. Any number of public-domain lyrics could be used instead.

The nature of the copyrighted work is that it is a song, of which the lyrics are just one part (I'd argue, the less important and less essential part). The lyrics themselves are equally copyrightable - and copyrighted - as the composed song.

You're making a distinction that is entirely irrelevant both to the copyright holder of those lyrics, and to any court that would hear a potential copyright-infringement lawsuit.

The amount of the portion of the lyrics is, indeed, total. But at a mere 80 words (disregarding the repeating bits), the lyrics rather defy excerption. This is our weakest showing on any factor, but considering the length of the lyrics, it's not a blatant failure.

That the "Hello Dolly" plugin uses 100% of the lyrics would make a fair-use defense <em>incredibly</em> difficult, if not impossible.

There is absolutely no effect on the potential market or value of the song. Try and imagine a person saying "Well, I don't need to buy the song or sheet music for 'Hello Dolly,' because I have a copy of WordPress!" No.


Our use passes three of the four determining factors with flying colors. It is not unreasonable for us to consider this fair use. If Mr. Herman's lawyers disagree, they've remained silent on the matter for quite a long time.

But to use a fair-use defense successfully, you must prove not three of four, but rather all four. By my count, this use misses on at least two, and probably three, of the clauses.

comment:27 in reply to: ↑ 10 chipbennett3 years ago

Replying to dd32:

Replying to novasource:

Also, "nonprofit" or "non-commercial" clarifies the educational use. Since there is no educational purpose in using Hello, Dolly! in this module, nonprofit is irrelevant.

The plugin itself, is a Example plugin, as such, It's an educational tool.

You can replace the Lyrics with any other Lyric or Text, and the plugins purpose remains the same, to educate new developers on how to hook into WordPress, Style their output, and for the new to PHP, how to handle & shuffle arrays to start with.

(emphasis added)

FULLSTOP

That very admission destroys your entire fair-use defense. The use of that particular copyright work does not add anything of any substance or particular uniqueness to the informative/educational purpose of the Plugin. Thus, you've just demonstrated why no court is going to agree that this infringement falls under fair use.

comment:28 in reply to: ↑ 23 chipbennett3 years ago

Replying to nuclearmoose:

Ridiculous. Beyond ridiculous. GAFL. This whole debate is over the use of two words which neither causes harm to the copyright holder nor implies someone other than the original composer created the work.

With all due respect: the ticket regards the use of the "Hello Dolly" lyrics in their entirety, not merely "two words".

You don't need a license to write about the song.

The Hello Dolly Plugin does not "write about" the song "Hello Dolly"; rather, it incorporates the entirety of the lyrics of Hello Dolly.

You don't need a license to quote a snippet of the song.

The entire song, not a snippet, is quoted.

You don't need to indemnify a reader of your work containing the song title or sample of the lyrics.

What we need here is common sense. I know I'm feeding the trolls here, so I apologize for that.
GAFL.

I'll assume that you merely skimmed the ticket and comments, which led you to your incorrect conclusion that this matter regarded merely the name of the Hello Dolly Plugin.

comment:29 follow-ups: markjaquith3 years ago

  • Resolution set to wontfix
  • Status changed from reopened to closed

Alright, enough. Matt is aware of this concern. He's the author of the plugin, and the director of the WordPress Foundation, and he has lawyers he can contact if he wishes to get a legal opinion.

Fair use is a subjective matter in the United States. We're not going to convince each other of our personal, subjective judgements. I know it's fun to warm up our search engine skills and play lawyer for a day (I'm as guilty as anyone of that), but this is not the right place to do it. Your concerns have been heard, and noted. There are more productive ways to continue contributing to WordPress.

comment:30 follow-up: JDTrower3 years ago

Well, all someone would have had to do is go to Jerry Herman's web site (http://www.jerryherman.com/) scroll down until you find the contact page link on which an email address is located to send mail for Jerry Herman. Then compose an email containing the link for this ticket and for the plugin in question along with some pertinent information and wait for a response. The following response came from Terry Marler, Jerry Herman's partner for 11 years, and I quote "Such permission has not been granted and should not be being used."

I'm sure for this response to be considered firm, valid proof, that someone should probably go through the more formal process of contacting the lawyer for Jerry Herman and getting an official response that way. I admit, that there is no way without a protracted email correspondence and other correspondence to prove identities and authorization to make such a statement as the one quoted above. However, this statement would indicate that the Hello, Dolly! plugin does not have the permission of the copyright holder and that permission was not attained or granted to Matt Mullenweg or WordPress to use the lyrics. This results in millions of sites out there with a plugin that is violating the copyright of Jerry Herman and WordPress is solely to blame for the forcing of that copyright infringement upon everyone through the bundling of this plugin with WordPress core.

comment:31 in reply to: ↑ 29 hakre3 years ago

  • Resolution wontfix deleted
  • Status changed from closed to reopened

Replying to markjaquith:

Alright, enough. ... (setting the ticket to wontfix)

Mark, I beg your pardon. As this has licensing implications on the full source code and the GPL, the ticket should be opened until the project has recieved feedback from their lawyers and or could resolve it with the owner of the Hello Dolly lyrics (I write that in the best intentions for wordpress and it's users).

comment:32 in reply to: ↑ 29 chipbennett3 years ago

Replying to markjaquith:

Alright, enough. Matt is aware of this concern. He's the author of the plugin, and the director of the WordPress Foundation, and he has lawyers he can contact if he wishes to get a legal opinion.

Fair use is a subjective matter in the United States. We're not going to convince each other of our personal, subjective judgements. I know it's fun to warm up our search engine skills and play lawyer for a day (I'm as guilty as anyone of that), but this is not the right place to do it. Your concerns have been heard, and noted. There are more productive ways to continue contributing to WordPress.

I won't further the argumentation in the comments (I've stated my view already), but isn't it a bit incongruous to say "your concerns have been heard, and noted," while at the same time closing the ticket as "wontfix"? That's basically the equivalent of patronizing the OP while telling him to go pound sand...

comment:33 hakre3 years ago

Copyright issue hello dolly related: #11538

comment:34 markjaquith3 years ago

"wontfix" does not mean "for all eternity." It means "for now." No slight intended. You'll forgive me if I excuse myself from this ticket for now.

nkuttler3 years ago

Use GPL-compliant lyrics in the hello dolly plugin

comment:35 Denis-de-Bernardy3 years ago

  • Keywords commit added; Troll food removed

+1 to the patch that got attached.

comment:36 sc0ttkclark3 years ago

+1 to the attached patch, though the plugin's name may be confusing with it ;)

comment:37 follow-up: novasource3 years ago

What if it stays hello.php but is renamed Hello World?

comment:38 in reply to: ↑ 37 hakre3 years ago

+1 to the attached path. Thank you for the initiative nkuttler.

Version 0, edited 3 years ago by hakre (next)

comment:39 hakre3 years ago

  • Component changed from Plugins to General
  • Keywords has-patch added
  • Severity changed from trivial to normal
  • Summary changed from Hello Dolly plugin doesn't explain license of copyrighted lyrics to WordPress ships with copyrighted "Hello Dolly" lyrics which terminates the GNU GPL of the package
  • Type changed from feature request to defect (bug)

comment:40 follow-up: zamoose3 years ago

  • Summary changed from WordPress ships with copyrighted "Hello Dolly" lyrics which terminates the GNU GPL of the package to WordPress ships with copyrighted "Hello Dolly" lyrics which could potentially terminate the GNU GPL of the package

hakre:
Your subject was a bit on the incendiary/absolutist side of things. Sans a qualified legal opinion or actual judgement, stating that it absolutely terminates the GPL for the entirety of WordPress isn't (if you'll excuse the term) in evidence. I edited it a bit for wiggle room.

comment:41 jeremyclarke3 years ago

+100 to nkuttlers ticket.

Not only does it solve this problem completely, it does so in an ABSOLUTELY relvant way. Stallman is not a good singer but that song should make any Free Software lover warm deep inside, and for people not familiar with the values that ACTUALLY INSPIRE THE DEVELOPMENT OF WORDPRESS the song can teach them what it's all about.

If we want something "that symbolizes the hope and enthusiasm of an entire generation" then we have it! A perfect song to build into the plugin that not only represents WordPress and its principles but also exemplifies the open culture movement which is intrinsically linked with free software.

I think Hello Dolly violates copyright law in the USA and Canada if not most other WIPO-involved countries. We don't have a right to use the song in our code and we have no reason to do so. The passion many people above show for defending WordPress is commendible, but the fact is that there simply is no fair use justification for the plugin as it currently exists. It's not the end of the world, but it is a violation and there's no reason to keep it around if we can use another song instead.

ASIDE from whether we have permission to use Hello Dolly or not we should all abhor the idea of including non-free culture inside WP. There are thousands of amazing songs that are in the public domain or use Creative Commons or GFDL licenses. We should be promoting songs like that and their authors, rather than taking a risk by including a song who's owner doesn't understand free culture and the principles of sharing and working together.

Hello Dolly is an unnacceptable risk for WP to continue taking and nkuttler's patch solves the entire problem going forward. To ignore it would indicate to me a serious disconnect between the core committers and the free software/free culture movement, as well as an unnecessary bluster for legal risk-taking.

comment:42 sc0ttkclark3 years ago

It appears the current resolution in place is to nix the Hello Dolly plugin as we know it after 3.1 is built, but that being just one response I've heard from the core team. We'll see how it goes, but guys they hear you and they are going to be taking the next step. Great job on everyone here who is trying to help WP out, I know you all care even if some of your communication was borderline hostile. Let's take a breather, let them finish the release that's a matter of weeks away and then we'll resume discussions. I think we can find a resolution that definitely makes sense for both sides, which most likely will be the nixxing of Hello Dolly in place of something a bit more contextual for new users.

comment:43 zamoose3 years ago

@sc0ttclark:

While I agree in a software dev sense with your conclusions, I do think this is a slightly different matter in that, if the use of "Hello Dolly" is indeed an infringement of IP and not, in fact, fair use, then the WordPress project is in active violation of the law and therefore liable.

The only two solutions are, to my mind:

  1. It's fair use, the lyrics stay in, end of story.
  2. It's not fair use and, since we're aware of this, it comes out right now, lest we expose the Project, Automattic and/or the WP Foundation to potential legal liability in the event of a suit, since continuing to knowingly distribute unlicensed material in this manner could be seen as willful disregard of the applicable laws.

I personally understand that this comes at a highly inconvenient time for the project as a whole and the core committers in particular, and I don't think I've seen evidence that anyone else on this ticket or wp-hackers is under any illusions that it isn't such. I'd love to put it to bed and wipe our hands of the mess lickety-split.

Last edited 3 years ago by zamoose (previous) (diff)

comment:44 sc0ttkclark3 years ago

I can see your point zamoose, though I'm not sure if this can be done immediately. I don't have commit access, and I can't speak for the core developers on the project, but the process of validating your solution number 2 could be lengthy as it may involve a lot of legal time and resources. While that goes on, the WP team must continue doing their work. It is already planned after 3.1 is released, for the devs to revisit the Hello Dolly plugin and revise the plugin itself, or replace it. I'm not exactly sure what the plan is yet, but I do know it's been on their radar for a while and it's on the docket to be addressed after the 3.1 release cycle.

comment:45 in reply to: ↑ 40 hakre3 years ago

Replying to zamoose:

hakre:
Your subject was a bit on the incendiary/absolutist side of things. Sans a qualified legal opinion or actual judgement, stating that it absolutely terminates the GPL for the entirety of WordPress isn't (if you'll excuse the term) in evidence. I edited it a bit for wiggle room.

Right, as of yet I do not probatively know the extend of restrictions that apply while making use of the Hello Dolly lyrics shipping with wordpress. Good point with the wiggle room.

I hope we do not need to first altogether perform a Broadway musical (,sure GPLed,) containing those hello dolly lyrics to find out ;)

For the opinion (search for termination) and some judgements, the termination thing is the motor behind enforcing the GPL as far as I understand it. But for general discussion: the tavern. I already updated my blog post.

Last edited 3 years ago by hakre (previous) (diff)

comment:46 zamoose3 years ago

I don't think the attached .diff is nerdy enough. I think we need to see if the U the Opera guys would open source their lyrics.

*grin*

comment:47 doktorbro3 years ago

I love the song "Hello Dolly", but it's obviously illegal to ship it with Wordpress.

The idea of Nicolas is great! Replace the whole plugin "Hello Dolly" with a new plugin "Free Software Song". And localize it!

__('Join us now and share the software
...
You'll be free, hackers, you'll be free.',
'free-software-song');

You can already listen to a Spain version of the song.

comment:48 in reply to: ↑ 30 hakre3 years ago

@JDTrower: Can you send me your contact details per http://hakre.wordpress.com/about/ ?

comment:49 hakre3 years ago

Related: #16039

comment:50 follow-up: jane3 years ago

  • Keywords commit removed
  • Milestone changed from Awaiting Review to Future Release

I'm moving all license debates to future release so they don't clog up the Awaiting Review queue, which we nee to keep clear for 3.1 blockers. We will address all licensing tickets in 3.2.

comment:51 Denis-de-Bernardy3 years ago

@Jane: I'm a bit surprised, that license "debates", as you derisively call them, are not all considered blockers in their own right, to be sorted out (with legal advice taken by the WP foundation if necessary) on the spot.

Re this ticket in particular, picture the RIAA going after WP for a moment. Imagine the foundation getting fined an arbitrary amount of dollars per download... Even if it's a symbolic amount for each infringement, it can end up being a hefty fine.

That this gets dismissively punted instead of proactively addressed could very well be used against the WP foundation. By contrast, if dolly got dumped or replaced as suggested in the patch, you can always argue in good faith that you weren't aware and fixed it as soon as you were made aware of the issue.

Anyway... Just my $.02...

comment:52 sbressler3 years ago

  • Cc sbressler@… added

comment:53 hakre3 years ago

  • Summary changed from WordPress ships with copyrighted "Hello Dolly" lyrics which could potentially terminate the GNU GPL of the package to WordPress ships with copyrighted "Hello, Dolly!" lyrics which could potentially terminate the GNU GPL of the package

comment:54 nkuttler3 years ago

  • Version changed from 3.0.2 to 3.1

A reminder. The 3.1 release still isn't GPL compliant.

Actually, this bug made me very happy. Together with the technical inadequacies I perceive in this project it made me move on to a different platform.

comment:55 dd323 years ago

  • Version changed from 3.1 to 3.0.2

Please leave the version to the earliest reported affected version.

As has been stated, We'll look at these issues in the 3.2 cycle (Which hasn't started yet)

comment:56 in reply to: ↑ 50 hakre3 years ago

Replying to jane:

I'm moving all license debates to future release so they don't clog up the Awaiting Review queue, which we nee to keep clear for 3.1 blockers. We will address all licensing tickets in 3.2.

Is this 3.2 per Milestone?

comment:57 wet3 years ago

  • Cc r.wetzlmayr@… added

comment:58 jane3 years ago

  • Milestone changed from Future Release to 3.2

3.2 is upon us, time to revisit.

comment:59 studionashvegas3 years ago

Here's an idea. A little community involvement and we solve a problem with the few who see it as one.

Come up with a contest to rewrite Hello Dolly's lyrics into something more... WordPress appropriate. Winning entry gets voted into a patch and applied. Winner also SOLIDLY agrees that his/her lyrics may be used by WordPress and/or distributed by WordPress, written into haiku, performed with interpretive dance, etc and so forth.

Just my $.02 - there are much more pressing issues in TRAC, and if this is going to have an issue made out of it, then we might as well have fun with it and get the community involved.

comment:60 studionashvegas3 years ago

  • Cc studionashvegas added

comment:61 novasource3 years ago

Is there even a compelling reason to retain this plugin? What's its purpose? How is it helping the product or the community?

Some have said a learning example. Well, that's fine as a contributed plugin, but certainly the vast majority of WordPress users are just users, not plugin developers.

comment:62 follow-ups: jane3 years ago

  • Milestone changed from 3.2 to Future Release

Postponing to look into possibilities, may run contest in next dev cycle so people have plenty of time to enter.

comment:63 in reply to: ↑ 62 chipbennett3 years ago

Replying to jane:

...may run contest in next dev cycle...

Great idea! That could be really fun.

comment:64 in reply to: ↑ 62 ; follow-up: nkuttler3 years ago

Replying to jane:

Postponing to look into possibilities, may run contest in next dev cycle so people have plenty of time to enter.

Haha, this is ridiculous. Shame on you or whoever decided on this. I already said everything constructive I had to say. All that would be left is insulting people, so bye bye.

comment:65 in reply to: ↑ 64 studionashvegas3 years ago

If you look above, *I* left that idea in the comments, and I stand behind it. I don't see how it's ridiculous to involve the community in this. After all, you said yourself that this is a pretty big deal, otherwise it wouldn't have been drug out this far - the community needs to know what's going on and have an input and a say in the final product.

Replying to nkuttler:

Replying to jane:

Postponing to look into possibilities, may run contest in next dev cycle so people have plenty of time to enter.

Haha, this is ridiculous. Shame on you or whoever decided on this. I already said everything constructive I had to say. All that would be left is insulting people, so bye bye.

comment:66 in reply to: ↑ 62 hakre3 years ago

Replying to jane:

Postponing to look into possibilities, may run contest in next dev cycle so people have plenty of time to enter.

Uhm, you can make any fun you like, but if you postpone you could have actually removed the infringing material in the meanwhile which you didn't.

You can replace the empty string with anything else later on at will, I won't stop you.

comment:67 novasource2 years ago

When will this copyright violation be removed from WordPress's source code?

comment:68 follow-up: WraithKenny2 years ago

A large number of perfectly rational, decent human beings are on record stating that they honestly believe the use of the lyrics to be inline with fair use. Simply, repeatedly, stating that its a violation doesn't make it so. I personally believe that it is fair use, because fair use is a much broader protection then the people on this thread seem to be giving it. When defenders of freedom, the WordPress community, cede ground that the protection of fair use is flimsy, it's a huge disservice to our broader communities and values. Laws are largely based on public perception and definition (such as any American law with the word "reasonable" which is defined at trial time by citizens for example), and by letting a concept such as fair use be preemptively eroded is a terrible strategy.

comment:69 novasource2 years ago

Simply, repeatedly, stating that its a violation doesn't make it so.

Conversely, stating that it is not a violation does not make it so.

If you think this is fair use, please cite an objective, reliable source to support your viewpoint. The sources cited in comment 9 above make it clear that this cannot possibly be fair use.

comment:70 WraithKenny2 years ago

novasource, you missed the point entirely. nkuttler's idea of replacing the lyrics is a good one, and one that I could support on it's own merits. Make the case that those lyrics are better suited and more appropriate for the example plugin and you'd make better progress.

Your trolling hurts just about everyone. Using offensive rhetorical threats simply make it harder to hear the legitimate case.

To clarify: respected persons of authority/reputation have expressed opinions in both ways, but no court has yet expressed it's opinion on this case in any way. (Presenting the issue as a prima facie violation is your offensive rhetoric, and that this somehow nullifies the GPL is the offensive rhetorical threat.)

Please stop hurting the community. Make the positive case.

For example you could advocate for either:

1) update the lyrics of the example plugin with something specific to the nature of the WordPress/GLP/OOS community, or

2) replacing the example plugin with an entirely new updated example plugin.

P.S. I'm against changing Hello Dolly at all, as this ticket is not a bug report. The only bugs are in the ticket itself: "vulnerable to legal problems" is at best conjecture, nothing here is prima facie, and updating the license is unnecessary.

Last edited 2 years ago by WraithKenny (previous) (diff)

comment:71 novasource2 years ago

Please stop hurting the community.

Um, well, a great way to "hurt the community" is to accuse people of "trolling" and "offensive rhetorical threats" just because you disagree with them.

You stated a belief that the use of Hello, Dolly! here is fair use, and I am again asking for you or someone else to prove this belief. Please cite case law or reputable sources supporting your side. I've tried to do that above. Yes, this is germane to the core issue of this bug report. It is not trolling.

Also, Rogers v. Koons is highly similar to this usage of Hello, Dolly! lyrics. I invite you to find a counterexample.

Make the positive case.

We need a solution to the issue, which is the illegal, unlicensed use of copyrighted lyrics. There are two proposed solutions: replacing with lyrics that don't jeopardize WordPress's GPL license or ditching the Hello, Dolly! plugin entirely (which is part of replacing it with an unrelated example plugin). Contrary to what you allege, I am fine with either outcome, so I don't want to take sides.

Last edited 2 years ago by novasource (previous) (diff)

comment:72 in reply to: ↑ 68 hakre2 years ago

Replying to WraithKenny:

A large number of perfectly rational, decent human beings are on record stating that they honestly believe the use of the lyrics to be inline with fair use.

As this Fair-Use comes up again, those who think that it is an argument for keeping, should think about the following (IAASDNAL - I am a software developer, not a lawyer):

  • Fair-Use can not guarantee the rights to others that we offer by our license for all applicable use-cases.
  • There is no "Fair-Use" in most areas of the world.

I don't say that Fair-Use won't apply to Wordpress in Israel (as it applies - when it applies - to any copyrighted work), but it's that much limited that we can not bring it up as an argument to make the lyrics GPL compatible for distribution.

See also which rights we give with free software: GNU, DFSG and OSI. This just won't work, the very limited Fair-Use would be only for specific end-user cases, not generally. But we're offering the software generally.

It's totally valid for any user of the GPL'ed software to ask the developers to remove that problematic part from Wordpress (or obtain enough rights to distribute the lyrics under GPL). If in doubt contact your lawyer. She will explain it to you why Fair-Use does not apply when you tell her that you want to distribute the lyrics under GPL, I'm pretty sure even in a very short time.

Also note that this ticket explicitly ask for clarification of the copyright/license state for the lyrics in question. It's just that many are having doubts that it's available under GPL, but right now the Wordpress maintainers say it is.

Fair-Use will never-ever allow re-declaration of the licensing terms. Say, "hey it's fair use", so I put it under GPL. You just can't do that, I mean that's obvious. So Fair-Use can't be an argument anyway for this ticket. Otherwise provide a patch that is saying

  • who owns the copyright of these lyrics,
  • the Hello Dolly lyrics can be used under GPL because of Fair-Use in the following counry/ies <list>

and get it committed and released. I bet you won't get any support at all for such a patch.

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