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Did Microsoft’s AI Chief Just Make Windows Free?

Did Microsoft’s AI Chief Just Make Windows Free?

Content posted on the open web should be treated as “freeware,” according to Microsoft’s AI chief. If that’s the case, it looks like he just tore up the license agreement for software like Microsoft Windows and Office.

Mustafa Suleyman, CEO of Microsoft AI since March of this year, raised eyebrows during an interview with CNBC. Asked whether training AI models on internet content amounted to intellectual property theft, Suleyman argued that anything posted on the web was fair game.

“I think with respect to content that is already on the open web, the social contract of that content since the 1990s is that it is fair use,” Suleyman said. “Anyone can copy it, recreate it, reproduce it. That was freeware, if you like, that was the concept.”

Windows license terms

If that’s “the deal,” then it appears that Microsoft’s licensing department has a very different deal when it comes to many of the products it puts on the open web.

For example, you can download the Windows 11 operating system on the open web from the Microsoft website. However, Microsoft is very protective of its intellectual property, as it makes clear in its terms of use, which is linked at the bottom of the download site.

In fact, these terms contain an FAQ about copyright, which directly contradicts Suleyman’s statement in his CNBC interview. “If a work is in the public domain, the work may be used freely without permission from the work’s creator,” the FAQs say. “However, just because a work is available online does not mean it is in the public domain or free to use.”

As for the idea that you could “copy, recreate, reproduce,” that flies in the face of the Windows License Agreement, which specifically states that you may not “publish, copy (other than the permitted backup copy), rent, lease, or lend” the software, nor may you “work around any technical limitations or restrictions in the software.”

Microsoft apparently thinks you’re free to do whatever you want with content you find on the Internet, unless it’s Microsoft’s content.

Microsoft has been contacted for comment.

Copyright

You could argue that this is a somewhat superficial point: there is a clear distinction between the type of written or visual material you use to train an AI model and software that is sold commercially.

However, US copyright law makes no such distinction. As the US Copyright Office FAQ page states: “Copyright, a form of intellectual property right, protects original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, films, songs, computer software, and architecture .”

Publishing it online also does not automatically invalidate copyright. “Your work is subject to copyright protection when it is created and fixed in a tangible form that is perceivable, either directly or with the aid of a machine or device,” the FAQ says.

This, of course, is why many AI companies are facing lawsuits for scraping data from the open web to train their large language models. In December, The New York Times announced that it is suing ChatGPT maker OpenAI and Microsoft (which uses OpenAI’s products to power its own AI offerings) for “billions of dollars” in damages for misappropriation of its content. Other lawsuits have also been filed.

So it looks like we’ll find out if the “social contract” cited by Microsoft’s AI chief actually exists. In the meantime, it’s probably best to avoid doing whatever you want with Windows, or you could end up with a lawsuit yourself.