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As discussed under this comment thread, we would not be able to include works under fair use in our posts. This is because (from the current TOS):

You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license. ... Subscriber warrants, represents and agrees Subscriber has the right to grant Stack Exchange and the Network the rights set forth above.

Where "Creative Commons Attribution Share Alike license" will be interchanged with a new license at some point, but the problem remains. The problem is fair use only allows you to use a work. It never allows you to license the work to someone else, especially for all the licenses we are considering. You also can't decide not to follow the TOS by putting a note saying "This was taken from fair use. Don't use under license", because you are still violating the TOS; you're just admitting it.

Therefore, I propose we put something along the lines of "... except you don't have to give us the license to stuff you are using under fair use from other people."

SE has to update their TOS anyway when they change licenses, and this will allow us to continue to import content from Wikipedia, even after we migrate away from creative commons.

NOTE: Wikipedia has done this already with for when their contributors want to use something under fair use. See Exemption Doctrine Policy.

NOTE: This appears to be patched in CC-BY-SA v4 (although it would require more discussion), since it explicitly puts

2.a.2 Exceptions and Limitations. For the avoidance of doubt, where Exceptions and Limitations apply to Your use, this Public License does not apply, and You do not need to comply with its terms and conditions.

So you can license the work to SE without giving them unlimited use of the fair use works. So maybe also updating the text to CC-BY-SA v4 would be in order when we change the code license.

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Right now, this is not an issue.

What you are licensing to Stack Exchange is the complete work of a question or an answer, not individual sections of a post. When I'm working on writing a post, until I click the post button, the work is copyright to me, all rights reserved. After I click post, I'm granting Stack Exchange a CC BY-SA license to the complete work. Creative Commons, in their FAQ and some supporting documentation, provides guidance on using fair use content in a CC licensed work (such as a question or answer on Stack Exchange). Note that nothing says that once you separate pieces out of the complete work that everything must continue to be CC BY-SA.

However, it may become an issue when a separate license is applied to code. The wording of the terms of use regarding how individual blocks of content are licensed is important. There is insufficient details regarding the new terms of use and their wording to know if it will be a problem. Likely something to keep in mind.

Again, something to keep in mind is that this only affects a small percentage of code posted on Stack Exchange. Most code (outside of Code Review and Programming Puzzles & Code Golf) doesn't meet the threshold of originality.

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    The link notes that you can only use fair use works if you have the right to not license them under CC. "The CC license only applies to the rights you have in the work." SE does not allow this. – PyRulez Jan 24 '16 at 1:43
  • The problem boils down to CC fair use saying "you can use this stuff in a limited way", but SE TOS saying "give us the right to do a bunch of stuff." – PyRulez Jan 24 '16 at 1:44
  • @PyRulez Yes, you do give SE the right to do a bunch of stuff...to the post as a whole work. That's OK. CC allows for it. – Thomas Owens Jan 24 '16 at 1:45
  • For comparrison, Wikipedia has something called the Exemption Doctrine Policy, by which non-free content can be included. Surely, they didn't include such a policy for kicks? (Note, I'm comparing Stack Exchange and Wikipedia, not talking about Wikipedia's content, in this comment.) – PyRulez Jan 24 '16 at 1:50
  • Also, I wasn't referring to version 4 of the license. – PyRulez Jan 24 '16 at 16:00

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