Has Microsoft’s AI Chief Just Made Windows Free?

Content that has been posted on the open web should be treated as “freeware”, according to Microsoft’s AI chief. That being the case, he appears to have just ripped up the licensing agreement for software such as Microsoft Windows and Office.

Mustafa Suleyman, the CEO of Microsoft AI since March this year, made his eyebrow-raising comments during an interview with CNBC. Asked if the training of AI models on internet content was tantamount to intellectual property theft, Suleyman made the argument that anything posted on the web was fair game.

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

Windows Licensing Terms

If that is “the understanding,” Microsoft’s licensing department seems to have a very different one when it comes to many of the products it posts 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 are linked to at the bottom of the download site.

In fact, those terms include an FAQ on copyright, which directly contradict the statement made by Suleyman in his CNBC interview. “If a work is in the public domain, the work may be freely used without permission from the creator of the work,” the FAQs state. “However, just because a work is available online does not mean it’s in the public domain or free to use.”

As for the notion that you could “copy it, recreate with it, reproduce with it,” that is at odds with the Windows licensing agreement, which expressly states you must not “publish, copy (other than the permitted backup copy), rent, lease, or lend the software,” nor “work around any technical restrictions or limitations in the software.”

Microsoft seemingly thinks you’re free to do what you like with content you find on the web, unless it’s Microsoft’s content.

Microsoft has been approached for comment.

Copyright Law

You might argue this point is somewhat facile, that there’s a clear distinction between the type of written or image content you might use to train an AI model and software that is being sold commercially.

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

Nor does publishing it online automatically invalidate copyright law. “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device,” the FAQ further states.

This is, of course, the reason 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 it was suing ChatGPT creator OpenAI and Microsoft (which uses OpenAI’s products to power its own AI offerings) for “billions of dollars” in damages for unlawful use of its content. Other lawsuits have been issued.

So, it seems we will get to find out whether the “social contract” cited by Microsoft’s AI chief actually exists. In the meantime, it’s probably best to avoid doing what you like with Windows, or else you might find yourself subject to a lawsuit of your own.