James D. Forrester said:

Indeed; under 'Common Law' (at least in the UK, but I imagine that it is the same or at least very similar in the various districts of the United States), as contracts must have 'benefit' to both parties, thus promises not to sue cannot be contractual terms, merely nice frippery words. They are not legally binding in any way.

If both parties agree and are benefitted by the promise, it's called a contract. If one party unilaterally makes a promise to another party for no consideration, it's called a waiver. When one waives the right to sue someone else for copyright infringement, it's called a license. In the US, at least, but almost certainly in the UK as well, all of these are legally binding. For example, according to Eben Moglen, the GFDL is not a contract, because it is a unilateral grant of permission, but Eben Moglen isn't saying that the GFDL is not legally binding.

Haukur said:

I think you are still unnecessarily conflating "fair use" with "licensing". Saying that a copyright holder agrees in advance that certain use is "fair use" is a rather convoluted way of licensing an image. You can simply say "I allow this image to be used for such and such purposes" without mentioning "fair use" at all.

Agreed

Haukur also said:

Nevertheless, even though your proposal doesn't make any sense to me it is actually currently in use on Wikipedia :) We have a tag for images that are "used with permission and fair use".

Yes, this points out just how strange it is that we allow so called "fair use images" (*) on Wikipedia but don't allow "by permission images". If we're not going to allow by permission images, or non-commercial use only images, then it makes no sense to allow an image which can only be used under fair use by us, or by non-commercial entities.

I agree that allowing some fair use is inevitable. But if a fair use defense isn't available to commercial redistributors, then a "fair use image" is no better than a non-commercial only image.

"Fair use", within the context of text and images allowed in Wikipedia, should mean fair use for everyone, at least everyone producing and distributing an encyclopedia of some sort within the United States. Otherwise, the term is rather meaningless.

Anthony

(*) I refuse to use that misnomer of a phrase without quotes. "Fair use" is a description of use, not a description of a type of image.

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