Did Microsoft’s AI Chief Just Make Windows Free?

According to Microsoft’s head of artificial intelligence, content published on the open web should be treated as “free software.” So it seems he has simply torn up the licensing agreement for software like Microsoft Windows and Office.

Mustafa Suleyman, Microsoft AI CEO since last March, made the surprising comments during an interview with CNBC. When asked whether training AI models on internet content amounts to intellectual property theft, Suleyman responded that anything published on the web is a legitimate target.

“I think for content that’s already on the open web, the social contract that’s been in place for that content since the ’90s is that it’s fair use,” Suleyman said. “Anyone can copy it, recreate it, reproduce it. It’s freeware, if you will, that’s the understanding.”

Windows License Terms

If that’s the “deal,” Microsoft’s licensing department appears to have a very different one regarding many of the products it publishes on the open Web.

For example, you can download the Windows 11 operating system on the open web from Microsoft’s website. However, Microsoft is very protective of its intellectual property, as it clearly states in its terms of use, the link to which can be found at the bottom of the download site.

In fact, those terms include a copyright FAQ that directly contradicts Suleyman’s statement in his CNBC interview. “If a work is in the public domain, it can be used freely without permission from its creator,” the FAQ states. “However, just because a work is available online does not mean it is in the public domain or can be used freely.”

As for the idea that you could “copy, recreate, reproduce” it, that contradicts the Windows license agreement, which expressly states that you may not “publish, copy (other than the permitted backup copy), rent, lease, or lend the software,” or “work around any technical restrictions or limitations in the software.”

Microsoft seems to think that you are free to do whatever you want with the content you find on the web, unless it is Microsoft’s content.

Microsoft has been contacted for comment.

Copyright

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

However, U.S. copyright law does not make this distinction. As the U.S. Copyright Office FAQ page states: “Copyright, a form of intellectual property law, protects original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, motion pictures, songs, computer software, and architecture.”

Nor does online publishing automatically void copyright law. “Your work is protected by copyright as soon as 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 further states.

This is of course 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 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 illegal use of its content. Other lawsuits have been filed.

So it looks like we’ll soon find out whether the “social contract” Microsoft’s AI chief talked about actually exists. In the meantime, it’s probably best to avoid doing whatever you want with Windows, or you might find yourself facing a lawsuit.