Comment by amluto
3 days ago
I don’t really understand the legal theory here. Party A (Meta) writes a contract with Party B (a business account holder) ostensibly granting A the right to scrape B’s website and a license to the content.
But why is there any presumption that B owns the content or has any right to grant this license? It’s extremely common for a publisher to license content from a third party under terms that may not allow this sort of sublicencing. What happens if the publisher can’t grant this license?
In this case, Party B is sandwiched between Party A (scraper such as Meta) and Party C (the third-party content provider). The scraping agreement dictates A-B relationship and the licensing agreement dictates B-C relationship. Devil is in the fine print as far as what is allowed in both agreements.
Party B has already committed to uphold B-C. Entering A-B may put them at risk of violating that agreement by appearing to grant Party A rights that Party C never granted to anyone but Party B (and maybe even rights that Party B doesn't enjoy). Party B's options are don't consent to A-B (e.g., withdraw from Meta program), take down the Party C content (which would suck if they've already paid for it), or negotiate a carve-out with one or both of Parties A and C.
(IANAL)
I am not an expert in licensing legalese, but that strikes me as awfully wrong. If I am e.g. a musician and I license my work to be used by B for specific purposes and B unilaterally signs an agreement with A that gives them rights to my stuff, the question is gonna be what MY licensing terms allow. They have an agreement with me. Whether they enter other agreements is their decision to make, but they still have to fulfill my terms.
Sure, they should not sign things that put them into the spot of having to break my licensing agreement with me, but the fact that these kind of legal stretches are even seen as valid in the US reassures me in my stance to avoid business relations with the US. I prefer countries with a legal system that can't easily be bent out of shape using money.
You really hit the nail on the head. I can't sign over rights to stuff I don't own. Is there a good chance that this move could blow up in Meta's face, in which the Party B's organize (or are ordered) en masse not sign the license agreement and leave Zuck without the legal ability to steal while also losing marketshare?
I think more and more people like you around the world are realizing not only how corrupt the U.S. is, but that it's power and influence are in a sharp state of decline and perhaps not worth the risk at this point.
That's the (evil) genius in Meta's terms: they get the right to scrap out of thin air, and the only party liable to the scraping is B.
IANAL, but copyright binds everyone regardless of entering into any agreement. In that case Meta would still be potentially liable for its infringement, exactly because "thin-air right" is not a thing. B could not grant it, because they don't have it.
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Buying (or stealing) stolen goods is still a crime.
If they really want to be spiteful they can rewrite all the news articles they post to Meta using Muse. Then we can finally see if the theories of statistical model collapse hold up at the trillion param level model scale.
I'd really be curious to see how much of Muse and similar 2026 models are actually from scraping, especially from this hypothetical unsorted random sites.
My understanding is that most of the gains after the early GPT-3 "add more weights" era have come from post-training from synthetic data, especially through reinforcement learning.
I couldn't quickly find any public statements about the actual breakdown of training data, other than almost every lab saying that post-training size was "scaling" or growing "by an order of magnitude" from their previous major release.
I'd guess that Meta is going to scrap everything anyway, and this license addition is just something that they think may come in useful if there are future court cases. The details of who has permission to grant licenses won't matter until then.
Yes that makes senses. It's a hedge.
Meta's past behaviour has been to ignore illegality in business, with the hope that they can either win in court or stave off legal action altogether.
That's how they acted with the books they pirated to train models and when they targeted children with gambling products to increase revenue.
They love a legal grey area. It's not what's moral it's what you can get away with.
Yeah, I think so too. They know that even if a fine is imposed on them, it will be far less than the profit they stand to make.
Not a lawyer, but my understanding is that crawling is a gray area. By putting that into their terms of service that most of the planet is agreeing to, they protect themselves in the case someone complains.
Also, this is about crawling and has little to do with the license of the contents.
Not a lawyer, but my understanding is that if a Big Tech company doesn't explicitly rule out using your data, they're using your data. And if they rule it out explicitly, they will eventually still use your data.
Isn’t the reasonable expectation that publishers don’t transfer rights they don’t own?
What happens if the publisher has a license granted by their tier1 but their tier1 can’t grant this license?
Big Tech will tell you that you care too much.
They will.
However some court will eventually tell them no. Big tech has gotten away with a lot, and courts try to be hands off. However eventually the power rests with the government not big tech and so when the courts decide to act they can strike much harder than big tech.
Not a lawyer, but what if someone did this:
- Find examples of content that will constitute infringement. Then send Meta legal a notice saying here are examples where the publisher does not own the content, and their scraping is not legal. Our current/future clients will be damaged by Meta's planned actions.
This might elevate it to willful infringement.
Just register the copyright on things that you expect Meta to use. Registering a copyright is cheap and gives you the right to sue for triple damages for any infringement after the copyright is registered. You must have a registered copyright to sue, if you register the copyright after the infringement you can only sue for actual damages.
Consult a real lawyer if this matters to you. The above is my understanding of the law, but I'm not a lawyer and different countries have slightly different laws.
Is that different from them doing whatever with your data, without knowing if that's actually messages written by you, pictures of you alone taken by you etc?
My guess is - legal or not, Facebook might’ve calculated the consequences (aka, fines) and decided it is worth the cost. Most publishers will not have the resources to fight them in court anyways
Most publishers have resources - it is millions, but it looks like a cut an dried case that they are highly likely to win. A 2 $million investment that results in $10 million dollar is a good investment. The numbers seem reasonable, though of course publishers need to consider their real situation.
Given how most of SV seems to work, they will likely simply continue scraping the content regardless of license.
Excerpts from "Commercial Terms"
Current
https://www.facebook.com/legal/commercial_terms
Licenses: As described in The permissions you give us section in our Terms, you grant us a license to content that is covered by intellectual property rights (like photos or videos) you share, post, or upload on or in connection with our Meta Products.
For any access or use of the Meta Products, that license applies to content you or someone on your behalf (such as your agency that places an ad for you or your service provider that manages your Page content for you) makes available on or in connection with any Meta Product.
You also will ensure that you own or have secured all rights necessary to grant the licenses and rights you (or someone on your behalf) grant to us under the Commercial Terms and any applicable supplemental terms, including permission to display, distribute and deliver your content within the Meta Products. https://www.facebook.com/legal/commercial_terms_preview
New (Effective Oct 30, 2026)
https://www.facebook.com/legal/commercial_terms_preview
Licenses & Rights You Provide Meta: As described in "The permissions you give us" section in our Terms, you grant us a license to content that is covered by intellectual property rights (like photos or videos) you share, post, or upload on or in connection with our Meta Company Products ("Content").
That license applies to Content you or someone on your behalf (such as your agency that places an ad for you or your service provider that manages your Page content for you) makes available on or in connection with any Meta Company Products.
Without limiting anything in our Terms and for clarity, Meta may use such Content as described in our Terms, including to provide, develop, improve, research, and maintain Meta Company Products, services, and features provided under these Commercial Terms and any other applicable supplemental terms.
This includes business, commercial, and related services to help you create and deliver ads and other commercial content, provide users information about your products and services, and connect you with users who may be interested in your products and services.
You represent and warrant that you own or have secured all rights necessary to grant the licenses and rights you (or someone on your behalf) grant to us under the Commercial Terms and any applicable supplemental terms, including permission to display, distribute, create derivative works, and deliver your Content within the Meta Company Products, and that your Content will comply with all applicable policies for the Meta Company Products.
You authorize us (or any entity acting on our behalf) to use automated software (such as web scrapers, bots, robots, spiders, crawlers, and user agents) and create test credentials to access, index, cache, analyze, collect, retrieve, or crawl the domains, web pages, or URLs (and any content available through them) that are associated with your products or services, or that are made available through your or users' use of Meta Company Products and services, and to periodically pull updates from such domains, web pages, or URLs.
“Hello, it’s me - the expensive lawyer”
Perhaps it's debatable whether the sentence beginning "You authorize..." is part of a license
For example, the current Commercial Terms use the heading "Licenses" whereas the updated ones refer to "Licenses and Rights"
Licenses can be revoked by the licensor (B)
Under Meta's "Terms", the license given to Meta ends when the content is deleted
https://www.facebook.com//business/terms
What if Meta wants to keep "scraping" in perpetuity
Does the express authorization in that sentence, which might be used as defense to a CFAA claim, for example, end when the content is deleted from Facebook
What if the express authorization to "scrape" is not part of a (revocable) license grant based on copryright (e.g., CFAA does not require copyright)
The Meta Terms and Commercial Terms have no termination provisions
There are no notice provisions
There is no negotiation
There is no reciprocity
For example, A is allowed under the Commercial Terms to use automation to access B, B is prohibited under the Terms from using automation to access A
Arguably the only parts of this "agreement" that can be terminated are the licenses given to Meta and these end only when the content is deleted from Meta's systems
But that's not within B's control
It's up to Meta to ensure the content is "fully deleted"
What if Meta fails in that regard
Accepting Meta's terms is agreeing to limit Meta's maximum liability to $100
Not only that but Meta has a list of exclusions that allow deletion to be delayed or denied, including "technical limitations" (see below)
In sum, attempting to terminate licenses given to Meta may be a "nondeterministic" process (apologies for any errors in using nerd speak)
Was it Senator Hatch who told Zuckerberg something like, "Your terms suck"
Excerpt from "Terms"
https://www.facebook.com/legal/terms
3. Deleting Your Content: You can delete individual content you share, post, and upload at any time. In addition, all content posted to your personal account will be deleted if you delete your account. about how to delete your account. Account deletion does not automatically delete content that you post as an admin of a page or content that you create collectively with other users, such as photos in Shared Albums which may continue to be visible to other album members. It may take up to 90 days to delete content after we begin the account deletion process or receive a content deletion request. If you send content to trash, the deletion process will automatically begin in 30 days unless you chose to delete the content sooner. While the deletion process for such content is being undertaken, the content is no longer visible to other users. After the content is deleted, it may take us up to another 90 days to remove it from backups and disaster recovery systems.
Content will not be deleted within 90 days of the account deletion or content deletion process beginning in the following situations:
...
where deletion within 90 days is not possible due to technical limitations of our systems, in which case, we will complete the deletion as soon as technically feasible; or
...
In each of the above cases, this license will continue until the content has been fully deleted.
> But why is there any presumption that B owns the content or has any right to grant this license?
Because they placed the content on a public website.
> What happens if the publisher can’t grant this license?
Then it's unlikely that the content is something they themselves have the rights to broadcast on their website.
Dead wrong on both points. Having a license to publish something on a website does not mean that the publisher has the right to grant sublicenses or transfer the license to someone else. For example, stock image licenses are normally non-sublicensable and non-transferable.
But Meta is not asking for anything of the sort, like you must assign to us the rights to use stock images. Just consent to the scraping activity.
The publisher using stock images does have the right to transmit those images to visitors. Those visitors don't have the right to incorporate the images into their own public work that they rebroadcast. But Meta isn't asking for that; they want consent from the business to scrape. The subsequent copyright violation is then a matter between Meta and the vendor of the stock images.
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> Because they placed the content on a public website.
I don't think this is a very good argument. For instance, if I have a company, called 'tickle-cats', I may expect regular customers to go and tickle a cat for, say, 1 cent, as cost. So I would expect regular people to visit my homepage.
I may not necessarily expect or want to have bots, scrapers and what not, per se. I may have this by extension - possibly, e. g. to rank a website more highly. But bots and so forth are not my real target audience to begin with (and some are just malicious, trying to disrupt the business); some company owners may want to not have to do anything with them (bots, crawlers etc...). That's just one example of many more; I don't think the distinction "public versus private" is the only one that can be applied here.
All you are saying is that scraping is an undesirable form of access, different from authentic access.
However, it is something that happens, and when you license copyrighted material to someone such that they have permission to serve it to visitors on their website, they are not automatically required to be a cop guarding your material against scraping.
There is an understanding that public-facing content gets scraped and used for AI training and whatever else. Someone licensing content into that role is accepting that reality.
Also, anyone in their right mind granting consent to Meta for scraping will still block them from doing that. That action speaks louder that the consent. If some content licensor accuses you of giving Meta consent to steal their material, you can point to your implemented physical defense against that and argue that the only way it could be happening is if Meta are circumventing your utmost efforts block scraping.
When pubs & cafés play music here in the UK they pay royalty fees to PRS for Music.
If I record the songs playing & they sell bootleg CDs, I don't have a defence of "but it was played in public, so all copyright was waived". That's not how copyright works.
There is no question that Meta violates copyright; what is in question is whether the business whose website they are scraping is doing something illegal w.r.t. third party licensed material by consenting.
If the musician gives someone consent to record (plus subsequently use the material in various ways) then in fact they do waive some of the copyright with regard to any of their original songs. The consented party has been given an implicit license to the material within the bounds expressed in the consent.
The status of the licensed songs is not affected whatsoever, and the musician has made no legal representation in regard to that. The musician is paying the royalty fees to PRS and doing everything they are supposed to.
The musician can say, "you have my consent to record and use the recordings, but be aware that some of the songs are copyrighted by a third party and I'm using them under license. Nothing I say gives you right over those songs."