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Mustafa Suleyman, the CEO of Microsoft AI has expressed an opinion that creative works published openly on the web without an explicit licence are freeware and the restrictions of copyright do not apply. Is there anything at all that could support this idea of an implicit licence?

I think that with respect to content that is already on the open web, the social contract of that content since the 90's has been it is fair use. Anyone can copy it, recreate with it, reproduce with it. That has been freeware. If you like, that's been the understanding. There's a separate category where a website or publisher or news organization had explicitly said do not scrape or crawl me for any other reason than indexing me so that other people can find that content.

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    Everybody can have an opinion and everyone can follow a "social contract". Legally, that is wrong. But he didn't say that this is his legal expertise. It's his opinion about a social contract. We have a social contract at work that says whoever is late has to bring sweets. That is about as legally important as the thing you quoted.
    – nvoigt
    Commented Jun 29 at 5:29
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    @Greendrake The AI tag is because this is in relation to the use of human created creative works in training an AI, not the AIs output. That could well be a factor in the consideration, particularly if it was a fair use question.
    – User65535
    Commented Jun 29 at 9:51
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    I don't think Suleyman's claim is meant to be about the legal merits. He's trying to defend Microsoft in the court of public opinion; it's PR, albeit probably misjudged. His claim is not just wrong in law, but also wrong in fact. Many websites had "(c) ... All Rights Reserved" written on them in the 1990s, without any specific text about search engine indexing; copyright notices on the web almost certainly even predate search engines. And more accurately, in the early days of the web people copied and reused such content because there wasn't any widely respected social contract.
    – kaya3
    Commented Jun 29 at 10:59
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    This statement is confusing. Freeware is almost the opposite of fair use. It seems pretty obvious that the author of that statement has no understanding whatsoever of either copyright, fair use, freeware, or the web.
    – Jörg W Mittag
    Commented Jun 29 at 13:34
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    A copyright statement is analogous to a "No Trespassing" sign: neither of them establishes any rights, but they serve to undermine the defence that that the trespasser did not know.
    – Simon Crase
    Commented 2 days ago

3 Answers 3

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A plethora of case authority establishes that owners do not lose their copyright just because a work is shared online, and that not all re-use of content found on the internet is fair use.

An early case establishing this principle is Kelly v. Arriba Soft Corporation, 336 F.3d 811 (9th Cir. 2003). This case was about the use of image thumbnails as search results online. Instead of finding that "restrictions of copyright do not apply," the 9th Circuit held that the thumbnails were a prima facie copyright infringement. This finding would not have been available had there been an implied licence.

Yes, the Court went on to find the image thumbnails in that case to be a fair use, but as explained elsewhere on this site in another Q&A, fair use is a case-by-case assessment. It is wildly inaccurate to claim that for all "content that is already on the open web... [a]nyone can copy it, recreate with it, reproduce with it." That skips the entire fair use analysis and ignores the many instances where reuse of content from the internet has been held not to be fair use.

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In addition to Jens answer, there's another thing to consider: fair use is a term in US copyright only. Other jurisdictions, including as far as I know all of Europe, do not have such a regulation. They allow quoting copyright protected works, but that requires that one uses the quote in a relevant context (e.g. as part of another work criticizing the quote). That is also the reason why Wikimedia Commons (other than the English Wikipedia) does not allow fair-use content to be uploaded.

Since Microsoft is operating worldwide and (most of) their services are available worldwide, they can't use copyright-protected works under a fair-use claim in probably most of the world.

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    The UK has the concept of fair dealing, which is related. But Germany, for example, does not have a similar concept; there are only a couple of specific exceptions which are based in basic Human Rights in the Constitution, e.g., the Freedom of Research gives rise to copyright exceptions for research, Freedom of Expression gives rise to exceptions for satire, etc.
    – Jörg W Mittag
    Commented Jun 29 at 18:38
  • This would be an important point if "fair use" in U.S. law meant "Anyone can copy it, recreate with it, reproduce with it" as Suleyman claimed, but it doesn't. It's vaguely defined, but much more limited than that, and I think it's not much different from what's permitted elsewhere in the world – e.g. the law states that it's "for purposes such as criticism [...] or research".
    – benrg
    Commented yesterday
  • @benrg The overall concept is similar to the quotation right, but it seems that it's considered much wider than what e.g. EU countries allow. Most of the time, this will only be relevant for commercial use, where possible compensation fees for violating a license are typically much higher in the US than elsewhere. So a broader interpretation can make a difference in case of a lawsuit.
    – PMF
    Commented yesterday
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Let's play devil's advocate here.

Say I take a copy of a Microsoft product, strip the licensing information, and upload it to some anonymous website for people to download.

According to your "logic" that product is now freeware and everyone can legally download it. MS might be able to after me IF they can figure out who I am, but they would have no recourse to get the "freeware" version taken down.

And oh, you're confusing "free" with "no published license". It not the same at all. I can have something that's free to use yet has a license as to how it can be used, including barring redistribution. I can also have something that has no published license because it's created for internal use only for my employer, no distribution allowed. Maybe they'll start selling it at some point in the future, maybe not, possibly as part of a larger product and it won't have a license of its own even then.

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    One little comment, it is not me making any claim or logic, it is Mustafa Suleyman.
    – User65535
    Commented 2 days ago
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    “No license” means people have the rights that copyright law gives them, which is very little. “No license” means you have the smallest legally possible set of rights.
    – gnasher729
    Commented 2 days ago
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    Under U.S. law, and I think many other countries', a company would absolutely have recourse to get unauthorized copies of their copyrighted materials taken down. In the U.S. there are specific provisions for this in the DMCA.
    – John Bollinger
    Commented yesterday
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    @JohnBollinger: The answer is highlighting the extreme difference between what the question claims that Suleyman said and the law.
    – Ben Voigt
    Commented yesterday

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