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Is it possible for someone to license something that is not copyrightable (e.g. too trivial, or no creative work), and is the licensee bound by that license if they use the "licensed" version instead of the free one?

This is a bit hard to think about, but suppose there are two ways to start using such work. One is to simply make a copy and use it, since it is not copyrighted. The other is to license it from someone (who may be allowed to license it, it's his work as much as anyone else's) and possibly be bound by the license (since you chose the second way, using a licensed version instead of the "free" one). Of course, both versions of, let's say, a digital work would have the same bits, but they might have different rights because of their different histories of how you got to use them.

Would it be possible to license at all? If so, would the licensee be bound by the license if he or she took the license route instead of the route of getting the work without a license because there is no copyright to oppose it?

I think it might be a bit like contract law, that if you accepted the license agreement (you didn't have to accept it, but you did, so you're bound by it), you might have the obligations of the (license) agreement. The question is whether you can "automatically" switch from the contracted version to the rights-free version, or whether you're bound once you've accepted a superfluous license.


A concrete example: The current interpretation seems to be that there can be no copyright on neural network weights because they are not a creative work. Nevertheless, companies and many people who create derivatives put licenses on their weights, claiming that downloaders must respect the license to use the weights. Many even ignore the upstream license and attach a new license to their weights.

In addition to the general question of whether they can impose a license on a work that is (currently) not copyrightable, things get complicated because re-training almost always changes all the weights in the file, even if the results the neural network produces may be quite similar.

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    – Dale M
    Mar 2 at 23:52

3 Answers 3

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No

In common law jurisdictions, a licence is just a contract and requires consideration by both parties to be valid. In a typical licence arrangement, the licensor’s consideration is to allow the use, or more accurately, to promise not to enforce their rights if the licensee follows the terms. The consideration from the licensee is the promise to use it only following the terms.

If the licensor has no right to sue for copyright infringement, which they don't if they don't own the copyright for any reason, then they have not provided any consideration and the contract/license is void.

If the licensee entered a deed rather than a contract, this would be enforcable because deeds don't require mutual consideration. It would also be enforcable if the licensor had provided something else as consideration. For example, I think you Sherlock Holmes fan fiction really sucks and I'm willing to pay you not to write any - even though I don't own the copyright in Sherlock Holmes, this would be an enforcable contract. Of course, if you breached it, I would have no right to sue under copyright law, my cause of action would be breach of contract and my damages would be pretty nominal.

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Is it possible for someone to license something that is not copyrightable (e.g. too trivial, or no creative work)

Probably not. A license for a copyright-protected work is permission to do something with that work, granted by a party that has an exclusive right to do that thing. If the person who is purporting to grant the license doesn't control the right they're purportedly licensing, what meaning could the license possibly have?

and is the licensee bound by that license if they use the "licensed" version instead of the free one?

No. The licensor has no rights to enforce. How could any breach of the purported license result in any negative consequences for the licensee?

I think it might be a bit like contract law, that if you accepted the license agreement (you didn't have to accept it, but you did, so you're bound by it), you might have the obligations of the (license) agreement.

A common-law contract requires consideration, which the licensor has not provided, having given nothing of value, so it's not a valid contract at common law because there's no consideration.

I don't know much about civil law contracts, but I suspect that the enforceability would depend on how the contract was worded. That is, a contract saying "I grant you permission to do X in return for your payment of Y" is meaningless, because I do not have the right to grant that permission, and you can do X without my permission. But if the contract says that you promise to pay me Y every time you do X, that might be enforceable.

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  • Do I understand it correctly that the two main points are 1) you must have an exclusive right on the work to grant a license (not given if there is no copyright protection), and 2) a license violation can only be enforced if the content could not be legally used without the license?
    – allo
    Mar 1 at 20:36
  • @allo well, no, the right needn't necessarily be exclusive, maybe I shouldn't have used the word. Copyright is generally exclusive, however, unless it is jointly held. And I don't know whether one party to a jointly held copyright can grant a license without the other parties. As to number 2, enforcement works by lawsuit. The licensor files a complaint alleging that the licensee did something without permission, to which the licensee responds that no permission was necessary. I believe the complaint would be dismissed at that point.
    – phoog
    Mar 1 at 21:10
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    It wouldn't be a license, but I can see a warranty. For example, you pay us $100 to use this presumably public domain photo on a blog and we indemnify you against any potential copyright claims. The warranty would have limits on use to control exposure to claims.
    – user71659
    Mar 1 at 21:51
  • @user71659, yes I think this is closest to what might apply to the OP. In my jurisdiction it's called an "indemnification".
    – P2000
    Mar 3 at 21:05
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Nevertheless, companies and many people who create derivatives put licenses on their weights, claiming that downloaders must respect the license to use the weights.

This is subtly different from the main question.

It appears that a contract exchanging the ability to download the file from their servers for legally binding promise on what you do with it would be valid. There is consideration for both sides. Breaking the contract wouldn't be tried as copyright infringement but rather under contract law.

This does change the premise, because presumably there would be no other way for you to obtain the file unless someone else shares it to you. The contract terms could forbid such sharing.

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  • In the case of AI models, you will find the open foundation models from companies that are available for download without login or agreeing to ToS, but with a license attached that usually prohibits certain uses, such as the RAIL licenses. Then you will find many free derivative models that users have built on top of these foundation models, often adding more license terms such as restricting the original license to non-commercial use or prohibiting the creation of further derivatives of their model.
    – allo
    Mar 2 at 19:42
  • @allo Ok, I had the assumption that it would be a click-through license before allowing the download.
    – jpa
    Mar 3 at 6:53
  • jpa Answers for this case are also useful. I am interested in answers for both freely available files and those that require a login, for example. Another interesting detail would be if you need to log in to access a marketplace, but the licenses are made up by the people offering the files on the marketplace and not defined in the site's ToS.
    – allo
    Mar 3 at 21:26

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