> Literally nobody is saying that.

Okay? Apologies for making that assumption. But if you're not saying that, then your position here is even less defensible. Arguing that model output isn't copyrightable but that it's still covered by EULA if anyone anywhere tries to use it is even more absurd than arguing that it's covered by copyright. The interpretation that this is covered by copyright is arguably the charitable interpretation of what you wrote.

> That is not true. ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).

ProCD is about shrinkwrap licenses, the court determined that buying the software and installing it was the equivalent of agreeing to the license.

In no way does that imply that licenses are enforceable on people who never agreed to the licenses. The court expanded what counts as agreement, it does not mean you don't have to get people to agree to the EULA. I mean, take pedantic issue with the word "sign" if you want (sure, other types of agreement exist, you're correct), but the basic point is still true -- if you want to restrict people with a EULA, they need to actually agree to the EULA. All that ProCD did was establish that buying a product and opening the package and installing it constituted agreement.

And that becomes a problem because if you don't have IP law as a way to block access to your stuff, then you don't really have a way to force people to agree to the EULA. Someone using LLaMA output to train a model may have never been in a position to agree to that EULA, and Facebook doesn't have the legal ability to say "hey, nobody can use output without agreeing to this" because they don't have copyright over that output. Can they get people to sign a EULA before downloading the weights from them? Sure. Is that enough to restrict everyone else who didn't download those weights? No.

To go a step further, if you don't believe that weights themselves are copyrightable, then putting a EULA in front of them is even less effective because people can just download the weights from someone else other than Facebook.

You can host a project Gutenberg book and get people to sign a EULA before they download it from you, even though you don't own the copyright. And that EULA would be binding, yes. But you cannot host a project Gutenberg book, put a EULA in front of it, and then claim that people who don't download it from you and instead just grab it off of a mirror are still bound by that EULA.

Your ability to control access is what gives you the ability to force people to sign the EULA. And that's kind of dependent on IP law. If someone sticks the LLaMA 2.0 weights on a P2P site, and those weights aren't covered by copyright or other IP law, then no, under no interpretation of US law would downloading those weights from a 3rd-party source constitute an agreement with Facebook.

But even if you don't take that position, even if you assume that model weights are copyrightable, if I download a dataset generated by LLaMA, there is still no shrinkwrap license on that data.

To your original point:

> If someone uses LLaMa output to train models, it is unlikely they will be sued for copyright infringement. It is far more likely they will be sued for breach of contract.

It is incredibly unlikely that someone using a 3rd-party database of LLaMA output would be found to be in violation of contract law unless at the very least they had actually agreed to the contract by downloading LLaMA themselves. A restriction on the usage of LLaMA does not mean anything for someone who is using LLaMA output but has not taken any action that would imply agreement to that EULA.

> You and others seem to have an over-the-top hostile reaction to the idea that contract law can do things copyright law cannot do. But it is objective and unarguable fact.

No, what we have a hostile reaction to is the objectively false idea that a EULA covers unrelated 3rd parties. That's not a thing, it's never been a thing.

I don't know what to say if you disagree with that other than that I'm putting a EULA in front of all of Shakespeare's works that says you now have to pay me $20 before you use them no matter where you get them from, and apparently that's a thing you believe I can do?

My "position" is the law, whether you like it or not.

Clickwrap agreements are enforceable, and legally enforceable agreements can place more restrictions on the use of a piece of software than copyright law alone can.

As a result, software that, for ideological reasons, does not restrict use will always have fewer protections than software with more restrictive terms.

Your off-topic rant about Shakespeare is irrelevant.

> My "position" is the law, whether you like it or not.

> Clickwrap agreements are enforceable, and legally enforceable agreements can place more restrictions on the use of a piece of software than copyright law alone can.

To take a page from your earlier comment, literally no one here is denying the existence of clickwrap agreements. Clickwrap agreements are completely irrelevant to the current conversation.

> Your off-topic rant about Shakespeare is irrelevant.

You can not enforce a EULA on someone interacting with a piece of work you do not own IP rights to if they did not agree to that EULA in some way.

I'm sorry, but agreement is part of contract law.

If you think you can force a EULA on a piece of content you don't own that will bind people who got the content from a 3rd-party and who never agreed to your EULA under any legal definition of agreement, then by all means, slap a EULA on Shakespeare. It makes just as much sense as what you're suggesting.

>> If you want to limit end-user freedom with a EULA, you have to figure out how to get users to sign it.

> literally no one here is denying the existence of clickwrap agreements.

You denied the enforceability of clickwrap agreements. You were wrong.

LLaMA uses a clickwrap agreement. "By clicking 'I Accept' below or by using or distributing any portion or element of the Llama Materials, you agree to be bound by this Agreement."

That agreement covers its output: "You will not use the Llama Materials or any output or results of the Llama Materials to improve any other large language model (excluding Llama 2 or derivative works thereof)."

Your hypotheticals about third parties are off-topic and have zero bearing on this conversation.

The topic under discussion is whether it is logically "inconsistent" for Meta to claim its output is protected while other content is not. Those two positions are perfectly consistent in light of the fact that LLaMA output is protected by the terms of a clickwrap agreement.

Facebook absolutely factually does not have a clickwrap agreement over 3rd-party content generated with LLaMA; restrictions of users do not magically mean that output has its own universally enforceable EULA applied to everyone else. There is no interpretation of US contract law that says that 3rd-party data generated with LLaMA would be subject to LLaMA's license. There is no clickwrap agreement over LLaMA's output, and no legal precedent that argues that any restriction of LLaMA's usage would apply to 3rd-parties accessing that output. The output is not protected in the way you claim, and I fully stand by the fact that a clickwrap agreement over downloading LLaMA from Facebook would not be enforceable over people who did not download LLaMA and are merely using 3rd-party LLaMA output.