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If I had a stock photo site that contained a mix of free Creative Commons licensed photos and commercial stock photos (where I make a commission), would I be allowed to include photos licensed under CC BY-NC-ND 4.0?

I know BY-NC-ND prohibits commercial use or derivative works, but I'm not clear on what the "boundary" is. If I'm not making money directly off the BY-NC-ND photos, but they are part of a larger web site which does make money, is that considered commercial use? Or if I show a list of related photos under a BY-NC-ND photo, is that web page a derivative work?

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    Creative Commons licenses with NC and ND attributes are not considered open source according to the OSI or free software according to the FSF. So this question is a bit off topic.
    – ecm
    Commented Jul 6, 2023 at 14:20

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The simple answer is "no-one is clear where the boundary is", particularly for the non-commercial bit; what is a derivative work is a bit better defined because there are extensive judgements on that matter - most jurisdictions allow some form of aggregation without it being a derivative work.

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