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Comment by mtgx | Hacker News Reader

Here's what the position should be. You're free to use other people's stuff that appears online, but not for commercial purposes.

Putting someone's picture (that happens to be on the web, publicly available) in a post on a site, where you happen to have ads does not count as "using your image" for commercial purposes. Putting your image in an ad would.

My point is that you shouldn't be able to just claim having copyright over someone's work, and then profiting from it as your own. I shouldn't be able to take the HD version of Iron Man 3, and then sell it to my local cinema. That's as far as copyright should go.

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>Putting someone's picture (that happens to be on the web, publicly available) in a post on a site, where you happen to have ads does not count as "using your image" for commercial purposes.

To me it does. I don't understand the operational difference between putting someone's image within whatever div has been designated the "ad" div or outside of it, other than location. If I don't understand it, surely teams of lawyers in opposition can create complicated rationales that justify any parties' usage of any other parties' work based on how much money the first party has to spend on lawyers.

The difference is that if someone's image is in the advertisement, there is an implicit message that this person uses/endorses whatever the advertisement is proposing. Whether or not this difference is material is an exercise for the reader.

Does commercial purposes count for supporting non-profits that you may disagree with? There is nothing special, nor onerous, about commercial activity that should grant it any special privileges, nor penalties.

Similarly, how about context. If there's a photo of someone on the web and you can't find the owner/subject's contact details you could put this in a post about STDs; if that post becomes popular the subject's image is then associated with the content despite them having no relation to the subject matter and not having given their consent, which could lead to awkward scenarios for that person.

(I won't say a Facebook photo as this will be in the uploader's album, therefore associated with their account and thus can be considered non-orphaned).

How about I use those photos in my ad-supported private blog, or my ad-supported private youtube stream. Or in some way that indirectly increases my profits in the future (say buying fame instead of money)?

Does that count as fair use?

(PS: genuine question)

If you're selling advertising space then in UK and US copyright law that would likely be considered to be commercial use. That doesn't mean that it's not allowed or [in the US] Fair Use but it's a strong mark against that conclusion.

There can be moral rights issues in "framing" work with your advertising too that could trump any conclusion that would otherwise fall as Fair Use.

Running ads means you make money. That's commercial just as much as charging people money directly. Whether the user pays with currency or with privacy or with brainwashing, they pay nonetheless so there isn't much distinction between the two.

There is an issue with this though. Lots of sites run ads to pay things like hosting bills. If hosting costs $100/month and you pull in $50/month in ads, this is generally not what people think of when they think of a 'commercial enterprise,' even though it's the technical definition. Granted, a "trust me, I'm not making that much money" statement from the owner is pretty worthless to.

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