amluto
5 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?
mmahemoff
4 days ago
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)
atoav
4 days ago
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.
sdellis
4 days ago
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.
stymaar
4 days ago
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.
kerenskiy
4 days ago
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.
mountainb
4 days ago
A license is a contract or contract term waiving certain rights to sue. That’s what a copyright license is. And yes, you cannot issue a valid license if you don’t have the right to do that.
What these kinds of platform agreements usually say is that you, the licensor, agree that you are fully representing that you can issue that license, and that any infringement is thus your fault and not the platform-licensee’s. Under the DMCA and other sources of law this is plausible.
forgotaccount3
4 days ago
> What these kinds of platform agreements usually say is that you, the licensor, agree that you are fully representing that you can issue that license, and that any infringement is thus your fault and not the platform-licensee’s.
I know the comment is brief, but it's important to understand what it means when the infringement is 'your fault'.
If it's B's fault that it caused A to infringe on the copyright license of C, then that would be handled by B indemnifying A against a charge from C. C can still sue A, C can still win a suit against A, A would then utilize the contract with B to get reimbursed from B.
If B is small and can't afford to reimburse A, that's A's problem. If B goes out of business, that's A's problem.
In my field, we require this indemnification fairly frequently as we distribute content created by others where it's impossible to fully guarantee that content leaves us with no liability, in a reasonable timeframe of distribution.
We have many processes that give us a best effort to prevent us from distributing content that we would be financially liable for. We have processes where we let things go which are gray area, but the client has posted a bond with us and signed an indemnification agreement sufficient to cover the potential fine we may face if the content was an issue. Or we reject the same content from others who don't have that signed agreement and haven't posted that same bond. Sometimes we sign an agreement without a bond because we've had decades of experience with the client and the number of violations is small enough that we would eat the cost.
amluto
4 days ago
I wish that there were well defined, common sense limits on indemnification and liability for misrepresentations.
Compare both to bona fide insurance markets. If I buy insurance, there is a defined maximum payment. And if I defraud the insurer, I get in trouble. And the insurer knows that they’re getting into, and they understand the risks and get compensated appropriately.
When some random consumer contract states that the consumer indemnifies the service provider, the consumer usually has no idea what this means and probably literally never sees the contract text. There is rarely a limit specified and, if there is, it’s probably basically a joke. And the benefit to the consumer rarely has anything to do with the risk (in fact, often the consumer pays and supposedly indemnifies the party they’re paying).
And then we get to representations. In a real B2B contract negotiated by lawyers both sides, the representations are generally relevant, everyone does them, and the replying party is expected to do due diligence. But in contracts like this Meta thing, to the extent that there is a representation that the publisher can issue a license:
a) That representation has nothing to do with the actual reason the publisher is entering into a relationship with Meta (the customer probably just wants to run ads or use business messaging)
b) The customer is extremely unlikely to have had a lawyer review the contract and Meta would not allow any good faith negotiation anyway.
c) Meta is not doing due diligence.
I feel like some combination of a, b and c should invalidate Meta’s right to rely on the representations and, in an ideal world, would even serve as evidence of bad faith on Meta’s part and serve to shift additional liability to Meta.
LocalH
3 days ago
But copyright and a "copyright license" are two different things. If B doesn't have the legal right to sublicense C's IP, and Meta scrapes it anyway, then B could be liable for breach of contract, and Meta could be liable for copyright infringement
DannyBee
4 days ago
IP Lawyer here - no, it's not plausible.
Copyright is strict liability. You do not have to have knowledge or intention to violate copyright, that only goes to the types of damages.
Unintentional copyright violation, or believing you have a license, is not a defense to infringement.
I have no idea what you mean by "under the DMCA and other sources of law it is plausible". The DMCA is irrelevant here, and you give no "other source of law".
throwaway09F9
4 days ago
I hereby grant all HN users and not users the right to copy, modify and redistribute any and all text and binary on the Internet and outside the Internet, already existing or yet to be created, forever and 1 day.
dspillett
4 days ago
The problem there is that both B and C are pulley much smaller than Meta. Copyright and other IP law at the scale of meta has become something that only really works for those with significant resources.
stymaar
4 days ago
AFAIK scraping itself doesn't go against copyright, only redistribution matters with respect to copyright (which is why B and C must have an agreement together).
unrented7977
3 days ago
Buying (or stealing) stolen goods is still a crime.
Onavo
4 days ago
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.
vineyardmike
4 days ago
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.
incompatible
4 days ago
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.
Lio
4 days ago
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.
faishalmanzar
4 days ago
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.
jenadine
4 days ago
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.
spiderfarmer
4 days ago
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.
edmundsauto
5 days ago
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?
spiderfarmer
4 days ago
Big Tech will tell you that you care too much.
bluGill
4 days ago
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.
jeswin
4 days ago
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.
bluGill
4 days ago
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.
g-b-r
5 days ago
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?
akudha
4 days ago
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
bluGill
4 days ago
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.
user
4 days ago
user
4 days ago
lenerdenator
4 days ago
Given how most of SV seems to work, they will likely simply continue scraping the content regardless of license.
1vuio0pswjnm7
4 days ago
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.
yummybear
4 days ago
“Hello, it’s me - the expensive lawyer”
1vuio0pswjnm7
4 days ago
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.
kazinator
5 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.
mopsi
5 days ago
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.
kazinator
5 days ago
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.
rprwhite
4 days ago
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.
kazinator
4 days ago
I'm not missing anything. I just don't believe that by granting those permissions you're making the legal representation that you are licensing third party material. The request is not worded in those terms, even, just as a consent to engage in scraping and subsequent uses of the material. For those materials that you do own, the consent does amount to licensing. For materials you don't own, the consent only covers the activity of scraping; you consenting to the material being used for training simply means nothing. You have attested that you have no objection to that. That doesn't remove the copyright holder's right to have an objection. All those things they are asking for, any visitor can engage in without any permission, and everyone knows it.
Imagine someone asks you: see that guy across the street? Do I have your consent to search his pockets? If you say yes, what does it mean? Precisely nothing.
Suppose you are asked: do I have your consent to search the pockets of everyone in this neighborhood? If you say yes, it still means nothing with regard to the guy across the street, who has not given any constent, but you've consented to your pockets being searched.
fauigerzigerk
4 days ago
>Imagine someone asks you: see that guy across the street? Do I have your consent to search his pockets? If you say yes, what does it mean? Precisely nothing.
I think if you have some kind of authority over the place where this happens and/or if you facilitate an illegal action then you could be breaking the law.
kazinator
4 days ago
Well, you are not in an analogous position of authority with regard to some licensed stock images or whatever. You are not the guardian of their copyright, charged with defending them from illegal copying. You were licensed those images knowing that the world-wide public will fetch copies of these images and do whatever they want.
If you signed some agreement whereby you pledge to protect licensed images from AI scraping bots, then signing off on a consent to Meta would breach that agreement.
There is no such agreement. Licensees of images are understood to be broadcasting them to the entire world, including anonymous visitors.
user
4 days ago
shevy-java
4 days ago
> 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.
kazinator
4 days ago
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.
another-dave
4 days ago
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.
kazinator
4 days ago
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."
user
4 days ago