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

Fred Benenson fred.benenson at gmail.com
Sat Jan 12 13:20:01 EST 2008


Also -- I haven't read the ToS in question but my guess is that it makes a
distinction between your original work that you grant to them and work of
others that you may host (fair use, licensed, free, pd, etc.) so that you're
not granting rights to them that you don't have, e.g., the brooklyn bridge
example.

IANAL,

F


On Jan 12, 2008 1:00 PM, Karl Ebener <myonlyb at vollbio.de> wrote:

> Hi,
>
> I can only comment on German law and am curious to find out about US (or
> other law): There, CC is constructed in a way that the user does not and
> can not grant another user any licenses, be it commercial or
> non-commercial. In contrary, the grant always originates from the
> author. You as user cannot fulfil the ToS since you cannot grant
> anything, but your service provider himself would have to acquire the
> grant from the author, of course following the CC-NC-license
> contract.Thus, I would not see an infringement of the CC-NC-license but
> you might have a problem with your service provider.
>
> Greetings
>  Karl
>
> Burobjorn schrieb:
> > 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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> > http://lists.ibiblio.org/mailman/listinfo/cc-community
> >
> >
>
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