Edit: I would like to add something about licenses and contract law.
While FOSS licenses can also be contracts (https://writing.kemitchell.com/2019/03/09/Deprecation-Notice...), if copyright does not apply, then users (and companies) do not have to accept the license in order to use the software because they already have access to it since the source is open.
However, with closed source software, the user does not get access until after they accept the EULA. This means that full contract law applies to the user, regardless of copyright on software.
That is why closed source software wins if copyright does not apply: because it makes an end run around copyright anyway.
Just checked: the Windows EULA [0] does not allow you to copy the software. And since it is a contract, that clause does not need copyright to be in force. So the person copying it to you can be targeted by Microsoft, and if you copied Windows without that user's permission, you are probably going to be charged with a violation of the CFAA. [1]
These companies have been practicing law for longer than you. Don't underestimate them.
Also, in my opinion, you are not really arguing in good faith. That is probably because my arguments really tear your article apart, and you are trying to find some way to discredit what I am saying. You can try, but I guarantee you that companies have a lot of experience protecting their closed source software. If copyright does not apply anymore, I also guarantee you that they will find, or probably already have found, a way to protect their software without it.
Edit: The Windows agreement specifically says that using the software is an implicit agreement to the EULA, and Adobe's [2] says the same thing. Thus, even if you copy from someone else's computer, you are under the EULA.
[0]: https://www.microsoft.com/en-us/Useterms/OEM/Windows/10/UseT...
[1]: https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act
[2]: https://www.adobe.com/products/eula/tools/captivate.html
If I'm given permission to use a computer, and I then use that access to duplicate binaries that are not subject to copyright law and which the level of access I have been greanted gives me access to, which provision of the CFAA do you think I'm violating?
> Edit: The Windows agreement specifically says that using the software is an implicit agreement to the EULA, and Adobe's [2] says the same thing. Thus, even if you copy from someone else's computer, you are under the EULA.
That's something you can enforce if use of the software is controlled by law, and you can refuse me permission to use it if I don't agree to the EULA. If the code isn't copyrightable then you have no ability to do that - I'm entitled to use it without agreeing to the EULA, and asserting that I'm implicitly agreeing to it carries as much weight as me asserting that you agree to pay me $1000 by reading this comment.
The CFAA covers use of a computer that extends beyond the authorized use.
> That's something you can enforce if use of the software is controlled by law, and you can refuse me permission to use it if I don't agree to the EULA. If the code isn't copyrightable then you have no ability to do that - I'm entitled to use it without agreeing to the EULA, and asserting that I'm implicitly agreeing to it carries as much weight as me asserting that you agree to pay me $1000 by reading this comment.
Good luck when a company comes after you for not agreeing to the EULA.
You and I might agree that you are entitled to use it despite the EULA, but that is not what we are discussing; we are discussing how companies will protect their software if copyright does not apply.
Saying that me reading your comment implies that I agree to pay you $1000 is wrong because of two major things:
1. You posted in a public forum.
2. I did not need to copy your comment to read it.
Windows has not posted their source code in a public forum, and the use of their software on a new machine requires copying it.
Actually, this talk of $1000 gave me an idea, so let's make a bet: if you can train a Copilot-like model with a decompiled copy of Windows and not be sued by Microsoft, I'll give you the $1000 you claim I owe you. But if they sue you, then obviously, they think there is something protecting their code, whether EULA or copyright.
Good luck with that.
Edit: Also, implied contracts are a thing. [1]
[1]: https://www.investopedia.com/terms/i/implied_contract.asp
Right. I have valid credentials for a system which grant me read access to a bunch of binaries. Are you saying that I need explicit authorisation to copy those?
> 2. I did not need to copy your comment to read it.
Agreed! I'm not going to be able to cause you to implicitly accept a EULA by doing something you already have permission to do, just as Microsoft wouldn't be able to cause me to implicitly accept a EULA by copying a binary that isn't subject to copyright law.
> But if they sue you, then obviously, they think there is something protecting their code, whether EULA or copyright.
You seem to be conflating two different situations. At present, since Windows is considered to be under copyright, Microsoft are in a position to enforce a EULA that would forbid me from doing that, even if the model I generated would produce output that wasn't considered to be a derivative work of Windows. If software couldn't be copyrighted at all then their ability to enforce that would be significantly weakened.
Yeah, you do.
> Agreed! I'm not going to be able to cause you to implicitly accept a EULA by doing something you already have permission to do, just as Microsoft wouldn't be able to cause me to implicitly accept a EULA by copying a binary that isn't subject to copyright law.
Then take the bet. I'm not even asking you to give me $1000 if you lose.
> You seem to be conflating two different situations. At present, since Windows is considered to be under copyright, Microsoft are in a position to enforce a EULA that would forbid me from doing that, even if the model I generated would produce output that wasn't considered to be a derivative work of Windows. If software couldn't be copyrighted at all then their ability to enforce that would be significantly weakened.
Ah, but you forgot one thing: Microsoft and GitHub are claiming that training a machine learning model is under fair use, which is an exemption to copyright. So if they sue you for training a model with their code, then they either do not actually believe that training an ML model is fair use, or they think that they can enforce the EULA without copyright.
Either way, take the bet. Prove me wrong.
Every time you access a file share, you request explicit authorisation to copy any of the files in that share? I think you'd have trouble finding any court who accepted that this was the intended outcome.
> Then take the bet. I'm not even asking you to give me $1000 if you lose.
I'd gladly take that bet in a world where software wasn't subject to copyright. Since this isn't that world, Microsoft's in a position to compel me to agree to the EULA if I want to get at the binaries.
> Microsoft and GitHub are claiming that training a machine learning model is under fair use, which is an exemption to copyright.
A EULA can require you to give up rights that you would otherwise have - in many cases it's legal to engage in reverse engineering, but in order to gain the right to use the software you may have agreed not to do that. So even if it would be fair use to analyse the binaries, if I can't obtain those binaries without either violating copyright law or agreeing to a EULA, I'm not in a position to do so without putting myself at risk. If copyright law didn't apply to the binaries in the first place then I wouldn't need to agree to the EULA in order to obtain them, and there'd be no problem.
If you don't own the files, yes, you do need authorization. I think courts would not have trouble with that concept.
> A EULA can require you to give up rights that you would otherwise have - in many cases it's legal to engage in reverse engineering, but in order to gain the right to use the software you may have agreed not to do that. So even if it would be fair use to analyse the binaries, if I can't obtain those binaries without either violating copyright law or agreeing to a EULA, I'm not in a position to do so without putting myself at risk. If copyright law didn't apply to the binaries in the first place then I wouldn't need to agree to the EULA in order to obtain them, and there'd be no problem.
You are dodging and deflecting.
As you said yourself, if copyright doesn't apply, you can obtain copies without worrying about the EULA or copyright.
Well, fair use is an exemption to copyright. If you do something under fair use, it does not matter if you agree to a EULA or not; if your use is under fair use, you can do it. Period.
So I gave you a way around copyright by using GitHub's own argument that it is fair use. If you won't take it, that means you don't believe what you are saying because you are not willing to put your actions where your mouth is. Yet I am willing to front $1000 if you do.
So clearly, you are not arguing in good faith, especially since your argument is about the consequences if copyright is done away with. In this one case, where GitHub claims that copyright is done away with, you won't take action, which means all that you are saying is just empty air.
Because you are not arguing in good faith, I think I am done with this conversation. And I will take the bet; I will challenge Microsoft to issue their legal opinion on this.
No. A contract can involve me agreeing not to do something I would otherwise be permitted to do (eg, an NDA is a contract in which I agree that I won't engage in certain forms of constitutionally protected speech). If I agree to a EULA that says I won't do things that would be permitted by fair use, that's probably enforceable.
> In this one case, where GitHub claims that copyright is done away with
They don't claim that! They claim that what they're doing is permitted by copyright law, which is a very different thing.
> If you don't own the files, yes, you do need authorization. I think courts would not have trouble with that concept
And how many people have been successfully prosecuted (and that prosecution upheld) under this interpretation?
You do not get it. I am assuming you did as you originally mentioned and got a hold of a copy of Windows without agreeing to the EULA. If that's the case, then you don't need to worry about the EULA, according to your argument at the beginning of this discussion. Then you can train the model under fair use.
Unless, of course, you actually don't believe your own arguments where you claimed that you can get a copy of Windows without agreeing to the EULA, in which case, your entire first argument is moot, and you admit that EULA's do put implicit contracts on people that copy the code, even without copyright, which means that I am right.
Once again, you are dodging. You keep trying to come up with "gotchas," but you're really digging your own grave here.
> They don't claim that! They claim that what they're doing is permitted by copyright law, which is a very different thing.
They are claiming an exemption to copyright law that is spelled out in the copyright law. Thus, they are claiming the same thing as no copyright in this particular case.
> And how many people have been successfully prosecuted (and that prosecution upheld) under this interpretation?
Ever heard of Aaron Swartz? He was charged under the CFAA and with grand larceny, among other things.
He was charged with unauthorised access to a network (he wasn't affiliated with MIT), and with violating JSTOR's explicit terms of use regarding what types of access were authorised. This is not analogous to someone having authorised access to a computer without any other terms of service. And, uh, it's a case that's pretty notable for not having been successfully prosecuted.
If you want to make shit up, go ahead, but this clearly isn't a productive discussion.
And it was only not prosecuted because he committed suicide. If you're going to reject true facts, then this discussion isn't productive.