Okay, let's say a website has some content. You can take a small amount, what would usually constitute fair use, and incorporate into a larger work. You know put this under a creative commons license or MIT or some other license. Am I allowed to license this work to people?

I don't this directly breaks fair use, but I don't think I can license it, since this would be giving others the right to violate copyright, which I can not do.

Based on a discussion here and here.

Note: Let's say that you required to license the entire work under the license, not just parts of it (such as required by the SE TOS).


Yes, you can grant any license you want to your larger work.

With respect to Creative Commons, they provide guidance:

May I apply a CC license to my work if it incorporates material used under fair use or another exception or limitation to copyright?

Yes, but it is important to prominently mark any third party material you incorporate into your work so reusers do not think the CC license applies to that material. The CC license only applies to the rights you have in the work. For example, if your CC-licensed slide deck includes a Flickr image you are using pursuant to fair use, make sure to identify that image as not being subject to the CC license. For more information about incorporating work owned by others, see our page about marking third party content. Read more considerations for licensors here.

With respect to MIT License for software, I don't think that many of the reasons for fair use apply to using someone else's source code in your project.

If you're creating criticism, commentary, news, or educational material, you probably have more than just code. You should choose a more appropriate license for the complete work (like a Creative Commons License).

Taking someone's software source code and trying to use it under fair use may also lead to issues when you consider other factors, such as the purpose of the use, the amount included in the larger work, and the effect of value on the copyrighted work.

I'm not finding a lot of cases regarding fair use in software. Galoob v. Nintendo found that you can modify copyrighted software for personal use (not relevant to this discussion). Sega v. Accolade found that copying software for reverse engineering was fair use under certain conditions (again, not relevant here).

If you are attempting to use anything under fair use, regardless of the license that you apply to your larger work, you do need to ensure that you do not give the impression that each individual piece of that work is also under that licence once extracted. That's why you need to clearly mark which portions are used pursuant to fair use. If those portions are extracted from the larger work, then the original restrictions to use apply. However, someone can use the larger work under the license you grant.

I just wanted to add this brief section to be extremely clear.

When you are producing a work, you can choose a license for that work. If you are incorporating someone else's work into your own work, there are two possibilities:

  1. You obtain the other person's work under a license. You must abide by this license and all of its requirements. Some licenses are viral in nature, which restrict the licenses that you can apply to the larger work.

  2. You use the other person's work under fair use. In this case, you need to properly attribute the work and identify that it is not available under the same license as the larger work. Someone that extracts that smaller portion must abide by the copyright of that work. If it's available under a particular license, they can choose to use that license or under fair use if they are able to. Someone using your complete combined work uses your license.

  • See the note at the end of the question. (Other than that, all I can do is put this link to the previous discussion and let the law community decide. (Although if I have any additional points, I'll put them here.) (Oh, and thanks for showing interest in SE's copyright. I hope our discussion will be helpful when SE considers changing their TOS.)) – PyRulez Jan 24 '16 at 2:12
  • @PyRulez This answer addresses your note. You can license a whole work under any license that you choose. Any content that you create is also under that license. If incorporate someone else's work, you can't change the license on that work, but it doesn't prevent you from licensing the combined work. – Thomas Owens Jan 24 '16 at 12:15
  • Also note that CC also had to explicitly patch this in version 4 (see 2.2). The previous discussion was about version 3 though. – PyRulez Jan 24 '16 at 15:45

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