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

Burobjorn burobjorn at gmail.com
Sat Jan 12 05:40:41 EST 2008


Gavin, I like your example. It does illustrate the sillyness of the ToS 
very well and this would be my understanding as well:

What you don't own, you cannot give away (at least legally..).

Any lawyers in the house, to discuss this?

grtz
BjornW

> 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)?
> 
> - --




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