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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.

User65535
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3 Answers3

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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.

Jen
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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.

PMF
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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.

jwenting
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