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>There is no such thing as "TOS overriding fair use" because they are on separate and distinct tracks. // I don't know it to be certainly true, if you can cite something solid on the point I'd be happy: however in general there is such a principle, that certain rights can't be disclaimed. Taking a logical approach - and law is not always logical - Fair Use could be disclaimed, eg in a ToS, then all Media corps would say words to the effect "this work can't be used under USC's Fair Use legislation" and the democratic law would then be subverted entirely. Per your final para, most people do know infringement (no one 'took' anything, it's a copy) is not allowed [tortuous]. But, Fair Use very rightly allows copying for parody, reporting, education and similar purposes. They also know that no matter what you try to claim about not using images of your product, news and review, parody and education _are still allowed_ (not in all jurisdictions, however). The established precedent is n that a browsewrap license needs affirmative action - checkbox, click-thru/interstitial, etc. - this precedent means nothing written in the license is pertinent, the viewer isn't party to the contract. |