[cc-community] (yet another) NonCommercial question...

Gavin Baker gavin at gavinbaker.com
Fri Jan 11 22:31:29 EST 2008


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Tim Cowlishaw wrote:
| Hi all,
|
| Have just been discussing an interesting point with some colleagues
| and thought I might seek some clarification: Say I was to write a
| blog entry reviewing a concert, for instance, and used a photo of the
| performance found on Flickr under a BY-NC licence in order to
| illustrate it. I make no material gains at all from my blogging
| (monetary or otherwise), and therefore should be able to safely
| consider myself a NonCommercial entity in this case. However (and
| here's the tricky part) My blog is hosted by a company whose ToS
| require me to grant them a world-wide, nonexclusive licence to use
| the work hosted upon their service, (which includes commercial use).
| I clearly don't have the right to grant this licence to the hosting
| company, so, am I correct in assuming that I can't use the BY-NC
| photo to illustrate my article, even though my own use of it does not
| contradict the terms of the licence?

If the answer is no, you can't use any material under fair use either.

I would assume that the "contract" (ToS) would be invalid in this
regard. It'd be like if the ToS said "You grant us the exclusive right
to the Brooklyn Bridge". Well, I don't own the Brooklyn Bridge, so I
can't give it to you. But could the host then come after me for
promising something I couldn't deliver (breach of contract)?

- --
Gavin Baker
http://www.gavinbaker.com/
gavin at gavinbaker.com
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