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Is Hello Dolly A Copyright Infringing Plug-in?

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December 20th, 2010
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WordPress Discussions

Over the years, I’ve read and participated in numerous discussions around the topic of removing Hello Dolly, one of the default plug-ins that ships with WordPress and is used for learning purposes. Despite all of the talk surrounding the plug-in, I’ve never seen anyone mention the issue of copyright. According to ticket 15769 on Trac, Hello Dolly is infringing on the copyrights of Jerry Herman, the creator of the musical. No one knows for sure if Matt or the WordPress Foundation has the permission of Jerry to use the lyrics in the plug-in or if he even needs it since the use may fall under fair use. There is also the discussion that if the plug-in is indeed violating the copyright of Jerry Herman that this infringement terminates the license of WordPress, that being GPL.

None of the people involved in the discussion is a lawyer so keep that in mind when reading through the ticket. However, a good alternative to the situation was published by NKuttler which replaced the lyrics of Hello Dolly with the Free Software Song. As noted by core contributor Mark Jaquith, Matt is aware of the situation and has good lawyers at his disposal for legal counsel on the issue if he wants to pursue that.

After reading the fair use doctrine and reading through the discussion within the ticket, let me know your thoughts in the comments.

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Comments

  1. Ozh (6 comments.) says:

    “Hello Dolly” is a proof that some people are just useless pedantic arrogant trolls with not enough productive things to do in their empty lives.

    My opinion.

    • Chip Bennett (63 comments.) says:

      Calling the person who submitted the ticket a “troll” (and further ad hominem attacks) is utterly unacceptable, and should not be condoned.

      Further, yours is a strange position to take, considering that said pedantry involves respecting copyright, the very legal concept through which the GPL exists and has any enforcement power. Disagree with whether or not Hello Dolly infringes copyright, but at least respect that the concern is legitimate.

      By the way: if one argues that Hello Dolly represents fair-use infringement of copyright, would one likewise argue that pre-GPL Thesis was also fair-use infringement? Why or why not?

      • Ozh (6 comments.) says:

        For the record, I didn’t check that ticket in particular. My comment was aiming a particular person who loves to post and repost infinite useless matters about license on wp-hackers.

        The problem with license issues is that 99% of the time it’s a OMGLICENSE!!!!1 non-issue that, once resolved, won’t make the world any better. The Hello Dolly issue was 120% useless, futile and boring pedantry.

        This said, I think I’m allowed to express my opinion, should it be that I think someone is a total jackass.

        • Chip Bennett (63 comments.) says:

          I can understand that, but the person who submitted the Trac ticket is, I believe, not the person you have in mind. So, you may very well be expressing your opinion toward the wrong person.

          • Ozh (6 comments.) says:

            Yeah, I checked, and indeed he is not. The ticket itself is probably a valid interrogation, albeit border-line IMO. The discussion that follows, and the debate on wp-hackers, was not. FWIW, I blacklisted hakre on gmail hoping to never read something coming from him again.

  2. Craig says:

    “Hello Dolly” is a proof that some people are just useless pedantic arrogant trolls with not enough productive things to do in their empty lives.

    My opinion as well.

    • Doug Stewart (9 comments.) says:

      Craig (et al.):

      Just one question: Is distributing the lyrics to “Hello Dolly”, in whole, an infringing act?

      (If the answer to that is “Yes”, then the follow-on question is: what then should the WordPress project do about it?)

      Some people are coders; they can contribute code, bugfixes, patches, etc. to the core. Other folks aren’t similarly gifted and have strengths that run in graphic design, UI/UX work, systems administration, forum moderation, generation of documentation, and yes, even legal/licensing review and advice.

      My suggestion to flame-throwers such as yourself is that you seek to find ways to actively, positively engage all of the members of the WordPress community and find ways in which they can contribute. Someone found a way in which WP is potentially exposing itself as a project to rather uncomfortable/untenable legal circumstances and, in an effort to help, pointed this out. They have been met with little more than outright disdain and snobbery from core committers and their satellites.

      • Craig says:

        Hey, Doug.
        I’m just calling it as I see it. You are free to disagree with that and I respect you for stating your opinions.
        To your comment about positively engaging members of WordPress, I can tell you that I have put more than a fair share of time into the community, especially in the very early years. I’m not a coder, programmer, designer or anything like that. I contributed through helping to create the original Codex, and by doing support on the forums. I also tested code, plugins, themes and some of my ideas were turned into useful code by those with the skills. I have written articles and tutorials as well, so I think I’m covered in the active, positive engagement. Doesn’t mean, however, that I’m not going to shy away from mixing things up a little at times.

        Could I have been more diplomatic with my choice of words? Of course, but the point is moot now. I stand by what I said, because to me, it’s the truth. Not everyone is going to agree with that, but that’s okay.

        • Ozh (6 comments.) says:

          The hell with diplomacy! :)

        • Doug Stewart (9 comments.) says:

          Craig:
          I remember your contributions from the early days of the project. I also recall you getting burned out and dropping out for a time because of the nattering nabobs of negativity.

          This community stuff is hard and, if I had to put a finger on the single biggest problem WordPress has had over the years, it’s managing expectations and participation in that community. The core team runs the show in a Modified Cathedral[1] fashion, which can be an okay way to approach things if ancillary issues are handled well. My contention is that said issues have not been handled well, particularly in the context of WordPress.org. Sites like WLTC, WP Tavern, WP Stack Exchange, etc. have been places where folks can go t get real, open engagement, but they lack the gloss of officialdom.

          WordPress has needed a Community Manager ala Jono Bacon of Canonical/Ubuntu and the longer such a position remains unfilled, the greater the long-term peril to the community.

          1. http://osdir.com/ml/wordpress-.....00385.html

          • Craig says:

            Doug,
            You hit the nail on the head with several of your points. Remembering back then there always was a polarization of sorts and indeed it did cause issues. I tried to play a middleman of sorts, and did get caught up on both ends of the same candle at times.

            I also tried to sell Matt and the other leads that we needed a community ambassador whose job it was to promote the WP community and to try to deal with issues that came up. My idea was that as an ambassador I could gather the main aspects of the issues and then present that to the leads for their consideration. I was hoping that it could reduces the signal/noise ratio and perhaps see things actually progress.

            I wasn’t able to convince anyone that it was a good idea. Maybe I hadn’t fleshed it out enough; who knows.

            Sidebar: My departure from the WP community was, in a word, pitiful. I was diagnosed with a major depressive disorder and my life basically fell apart. My wife left me for a guy she met playing Age of Empires. Yeah, poor me, but that was a long time ago. I’m very well know, and have a new life and a renewed desire to be a role player in WordPress.

            Maybe there is a role to be played as an ambassador. Calling people a troll isn’t the way to do it, mind you, but hey, even a moose has his limits. :^)

            Thanks for your comments, Doug.

        • Doug Stewart (9 comments.) says:

          Mark, et al:
          I think the moderation queue ate my last comment. A little help?

  3. Nicolas (5 comments.) says:

    “Hello Dolly” is a proof that some people are just completely ignorant about what the GPL is. And that they don’t consider the words and spirit of the license they use important.

    I don’t think it’s necessary to add insults to my opinion.

  4. Paul OFlaherty (5 comments.) says:

    You’re seriously even asking this question? This is more proof that the idiots have control.

    My mind is numbed by the fact that you’re calling attention to this Jeff.

  5. Chip Bennett (63 comments.) says:

    Would it perhaps be possible to disagree without resorting to insults and ad hominem argument?

    The entire thing is a moot point if the copyright holder either doesn’t consider the use to be infringing or else doesn’t care enough to pursue an infringement claim, and until the matter is decided in court. That said, reasonable people can disagree, and such disagreement shouldn’t be taken so personally.

    It saddens me that, especially in the WordPress community, it is the accepted norm that anyone who disagrees with the consensus opinion may be insulted with impunity. That attitude, in my opinion, represents the real poison within the community.

    • Craig says:

      Chip,
      You’re painting with a rather broad brush, given the number of people we are talking about within the WP community.

      Acting like a troll, even if it is allegedly in the best interest of WP, is still being a troll. Not the best way to approach the issue, but I said it, and I stand by it. I respect that your opinion is completely different. Perhaps a Chicken Little reference would have been more appropriate, but I suppose that would have raised the ire of people as well.

      Like you said, people shouldn’t disagree and toss insults back and forth, but it does bring out people’s passion, and a lot more folks jump into the mix as a result. That’s not justification, it’s reality.

      • Chip Bennett (63 comments.) says:

        If there’s one thing I’ve learned from my involvement with the WordPress community, it is that people in the community are passionate! Now, IMHO, such passion is a great asset – when properly harnessed and channeled.

        But all too often, that passion is fueled into needless controversy, directly as a result of such invective as has been exhibited as a result of the Hello Dolly ticket. When passionate people start insulting other passionate people, the insults bring out even more passion, and the inevitable results.

        Personally, I think that “passion” itself does not fully or adequately describe the reason for the original response to insult.

        • jb says:

          I wholeheartedly agree. I think one way to avoid unnecessary escalation is to remain focused on the relevant issues at hand, and avoid expanding it into side issues, such as your Thesis flame bait above.

          So I now ask a genuine, hopefully constructive question:

          If you believe “Hello, Dolly” has been an willful copyright infringement for the last 6 or 7 years, what exactly do you propose the community do about it? Keep in mind that simply removing the plugin from future versions (something I agree with) does NOTHING to legally mitigate the prior infringement. With this in mind, what exactly do you propose?

          • Chip Bennett (63 comments.) says:

            What do I propose to do? The first step, clearly, is to stop infringing. Such a step demonstrates good faith, and does have likely impact on any statutory damages awarded for infringement.

            Also, to be willful, infringement must also be knowing. As far as we know, knowledge of infringement goes back perhaps only as far as about 11 months ago, when a related Trac ticket was first submitted.

            By the way: the Thesis question was not “flame bait”; it’s a relevant question. It would appear that many of the same people who are so quick to claim that Themes inherit GPL (i.e. fair use doesn’t apply) are equally quick to indemnify the blatant copyright infringement of Hello Dolly by virtue of fair use. I find that dichotomy both interesting and instructive.

  6. Doug says:

    Of course, you mean legal counsel, not legal council. Legal counsel would be someone with a JD who has studied and is currently practicing copyright and contract law as well as being admitted to the bar and actually retained by a party to this. Legal council could be a grouping of pretend lawyers without such qualifications. Example outside the field of law: in the Buffyverse, Giles provides wise counsel, while the Watchers Council is generally useless.

  7. Craig says:

    Mike Masnick @ TechDirt has a blurb on this whole debacle.
    http://bit.ly/ecp6pl

    • Chip Bennett (63 comments.) says:

      I’m resisting the urge to interject into that comments thread. It doesn’t appear any of the commenters have the slightest idea what the situation is, one way or another – and the constant decrying of the entire legal concept of copyright is rather ironic (refer to my first comment, above).

      In any case, the article itself doesn’t seem to shed any new light on the discussion.

      • Doug Stewart (9 comments.) says:

        …And one of the commenters went full-on-Godwin, comparing the RIAA to the Nazis and copyright infringers to the Jews, Gypsies, mentally infirm and homosexuals the Nazis singled out and exterminated with extreme prejudice.

        Now that’s the right way to keep a discussion measured and reasoned.

        Sheesh.

  8. Dave (15 comments.) says:

    The dismissive, shoot-the-messenger reactions of the core committers and their sycophants does kind of make me think this might be a real issue, and that they had hoped to let a sleeping dog lie. I don’t know about the legality of the case, but I think that plugin is useless as tits on two-by-four and I’d love to see it scrapped.

    • gestroud says:

      “plugin is useless… and I’d love to see it scrapped.”

      Echoes my sentiments perfectly. It’s the first thing I delete from any WordPress installations I do (dozens of them) and I’m from the city that the original play, Hello, Dolly, was set in.

      As far as copyright, since the song was written circa 1964 and its composer is still alive, there’s a good chance it’s still under copyright.

  9. Chris Cree (4 comments.) says:

    According to that “authoritative” source Wikipedia it wouldn’t be the first time that Hello Dolly got caught up in a copyright dispute. ;)
    http://bit.ly/hck3tD

  10. jive (7 comments.) says:

    Why wait until it’s an issue? Why not just change it and then no one has to worry about it (I’m not worried) or bring it up again? Simple as that. To be true to Open Source, that is what must happen anyway.

  11. Andrew (7 comments.) says:

    I personally don’t know anyone who actually uses that plugin. I see no reason in deleting it because it will be added the next time I upgrade.

    Yes it may be used as a ‘proof in concept’ plugin, however my understanding of copyright law in Australia (even though this is not an Australian product) is that you may publish upto 10% of a ‘work of art’ without requiring permission. Publishing one line of a song is probably much less than the 10%.

    Although, if I was the copyright owner, I would be proud to see my work published elsewhere, although it would be nice to at least see that at least the work was attributed to me somewhere on the publication site.

    • Nicolas (5 comments.) says:

      What you are missing is that the full lyrics are in the source code. The core developers claim the plugin is GPL. Hence they claim the lyrics are GPL. They do not own the copyright to the lyrics.

      By distributing them as GPL they seem to give their users the right to distribute the lyrics however the users wants to, under the terms of the GPL.

      The core developers are potentially putting everybody who distributes wordpress, the hello dolly plugin, sells wordpress services at risk. That’s not something you should do to your neighbour.

    • Chip Bennett (63 comments.) says:

      Does this look like only “one line of a song” to you?

      The plugin may only output one line of the song at any one time, but the source code contains the entire lyrics (in effect, even if not exactly as-performed).

    • Ryan (55 comments.) says:

      There is no such thing as a “10% law”. It’s apparently a myth which has been perpetuated in society but apparently has no basis in fact.

      From what I’ve been told by those who know much more than I, it seems to stem from a code of ethics for copying written work within educational facilities in both NZ and Australia. It is however not law, and simply a guideline which can not and would not ever be enforced. Standard copyright law still applies even in those specific situations covered by that code of ethics (which I can’t remember the name or many details of).

  12. jb says:

    As core contributor Mark Jaquith said just before excusing
    himself from the ticket: “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.” Here here. You wanna argue
    about this, then y’all be trollin’.

    • Chip Bennett (63 comments.) says:

      Why? Why is anyone who chooses to argue the question inherently “trollin’”? The question of copyright infringement regarding Hello Dolly is a legitimate one.

      While I’m personally content with the core developers’ response that the question will be taken under consideration after 3.1 is released, delaying the question of copyright infringement does represent (an entirely unnecessary) risk to the project if Hello Dolly does, in fact, infringe copyright.

      Thus, I have a major problem with those who attempt to shut down discussion and debate through means of insult and invective. Someone who raises a valid question is not a “troll”.

      IMHO, the best course of action would be to replace the song lyrics in the Plugin. However, the powers-that-be apparently don’t agree. So be it; there is no point in arguing against that decision. However, those who choose to do so, out of a sense of concern for the project, are not “trolls”; rather, they’re merely wasting their time.

      • jb says:

        are not “trolls”; rather, they’re merely wasting their time.

        Well! Answered your own question there. If you’re wasting your *own* time arguing the issue weeks after it’s been closed then what is your relationship to the people who you are arguing with? You chose not to call it trolling. Trolls often feel that way about their endlessly helpful arguments.

        But hey. Since we’re trollin’…

        Going down the relevant factors of fair use: the source code of the plugin (the only place the lyrics are contained in full) has absolutely no detrimental commercial effect on the value of the musical or the song; the character of the use is specifically to praise it and make commentary upon it; it is presented in an educational context, by a non-profit organization, in a freely distributed product.

        But so what? Fair use is only a defense to be used in case of lawsuit. If WordPress distributing “Hello, Dolly” yesterday, or even years ago, they still distributed millions of individual copies. If you’re right, and each one is a knowing infringement, the penalties for EACH copy could be more than $100k. So if you’re right, current liability — no matter what WordPress does now — is several trillion dollars.

        If there’s a lawsuit. Which there isn’t.

        But gaming out apocalypse sure is fun! Let’s keep arguing about it forever, okay!

        • Chip Bennett (63 comments.) says:

          Your fair-use arguments are flawed. Here’s my take:

          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 when the copyrighted work is used. ETA: 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.

          Now, having said that: I disagree that everyone who chooses not to accept the “hold on, we’ll deal with it later” response is a “troll”. A troll is someone who tries to antagonize for the purpose of antagonism itself – in order to cause a negative reaction.

          You hit the nail on the head regarding why some people are legitimately concerned: if the copyright holder decided to pursue an infringement lawsuit, the project would face a huge liability.

          Dismissing that concern as mere “trolling” is myopic and unwise.

          • jb says:

            On the basis of legal arguments, I disagree with your interpretation of an educational use — it does not need to be spontaneous or individual, as evidenced by the large educational organizations who systematically rely on this exception. Your disregard of the non-profit nature is charmingly opaque. Use of the entire work is also not an automatic failure of a fair use, as in the case of republishing a short poem in it’s entirety for purposes of commentary. Which again, the plugin itself offers as it’s basis of it’s use.

            And to repeat myself: IT DOES NOT MATTER.

            First of all, because the legal argument could be decided by a jury in either direction, at their whim, as they have in plainly conflicting fair use rulings in the past. So argue about it in comment threads all you want. Your time is better spent on video games.

            But more importantly, the infringement has already occurred. So even if you are right (praise, hallelujah!), it does not matter now, because it has been infringing for the better part of a decade. If all copies were erased right this second, and Matt were forced to wear a hair shirt screen-printed with “My Bad” in his own blood, it Would Not Matter.

            And with 30 million downloads, let’s do some back of the envelope math… and WordPress is — as you say — CLEARLY liable for 3 trillion dollars in damages. Roughly the size of Germany’s GDP. For the “Hello, Dolly” plugin. Clearly.

            Does that sound insane? Why yes. It does.

            But since you are so *absolutely certain* you are right about this existential threat to WordPress, I guess we’d better start asking Germany if we can borrow their GDP. Because no way is this trolling.

          • Chip Bennett (63 comments.) says:

            Your condescension is coming through loud and clear – to which I respond: Jammie Thomas.

            22 songs.

            $1,900,000 in statutory damages (later reduced on appeal to $54,000, or $2,250 per song).

            Yes, it has happened in the past, and it can happen again in the future.

  13. Hissing Kitty (9 comments.) says:

    Don’t think it is infringing, but definitely annoying to me.

    • Chip Bennett (63 comments.) says:

      It is clearly and without question infringing. The relevant question is whether that infringement falls under fair use.

      So: why do you think the infringement in this case is fair use?

  14. Mosh (2 comments.) says:

    Frankly, I wish it would stop re-installing itself every time I upgrade WordPress. I don’t want it and I don’t care *what* song lyrics it uses.

  15. Ryan (55 comments.) says:

    I just hope this sees the death of that silly little plugin. It’s nothing more than an annoyance in my plugin folder.

  16. Craig says:

    http://bit.ly/dNCM5M – Poking fun at the whole thing – maybe we should just lighten up a bit, eh? :^)

  17. Lisa (3 comments.) says:

    I generally delete Hello Dolly any time it appears in my plugins list. It was funny the first time I installed WP, and didn’t know a plugin from my elbow, but all these years later, it’s just clutter.

  18. Ajay (11 comments.) says:

    Hello Dolly is just annoying, I keep removing it and with every upgrade it appears again. Why don’t they just get rid of it?



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