Comment by kazinator
4 days ago
> 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.
You’re missing half the picture here. It’s not the scraping that’s the big problem, it’s what the rest of the TOS say they can do with everything they get from scraping your site. Like use it to train their AI and provide responses to people questions. That’s part is the real legally contentious part, for a multitude of reasons. I imagine they see this as a way of getting around things like Australia’s requirement they pay a fee to news outlets if they show their content. The TOS also says they can create fake accounts on your site, for scraping. Which means if you have anything on your site, that you don’t have full legal rights to distribute and use in any fashion you like, you are at significant legal risk if you continue to use anything meta after 30 October.
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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."