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> 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 thos

> 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? 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.

mjg59 5y ago
> Yeah, you do. 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.
- ghoward 5y ago
  > 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. 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.
  - mjg59 5y ago
    > 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. 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?

mjg59 5y ago

> Yeah, you do. 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.

ghoward 5y ago
> 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. 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.
- mjg59 5y ago
  > 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. 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?