New TOS for AI-powered Bing poses legal issues for Microsoft and users

On Tuesday Microsoft loudly announced the new AI-fueled version of Bing. At the same time it quietly published a new version of the search engine’s terms of service, claiming rights over what goes into and comes out of the AI. However, what the company wants may not square with what the law says it can have.

Why we care. Who owns — and can use — the inputs and outputs of AI-powered chat search functions is enormously important to marketers. While AI-generated output can’t be copyrighted, can it violate other people’s copyrights? Content creators of all types are reasonably concerned about AI taking and re-using their work without permission. Content marketers risk losing control of their content. There’s a lot at stake here, so expect a whole lot of lawyers to get involved.

New terms. In the new TOS, Microsoft says that, by using the service, you give the company license rights for any “Captions, Prompts, Creations, or any other content you provide, post, input, or submit to, or receive from, the Online Services.” 

It also says any “creations” generated by the AI can only be used for personal, non-commercial purposes. Something that appears at odds with the Copyright Office’s ruling that AI creations can’t be copyrighted. 

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“Microsoft is likely trying to cover every angle, since the laws about AI are still in flux,” says Elizabeth Potts Weinstein, a business law attorney and founder of EPW Small Business Law PC. “No one yet has any clear answers in AI.”

A claim isn’t a fact. Potts Weinstein says claiming rights over the human input is much trickier in legal terms than the company’s control over the AI’s outputs. That’s because while there’s no copyright for the AI output, some human input can, in fact, have copyright protection. To be protected a prompt would need to have a creative or artistic aspect and be non-generic. 

So, “recipe for chicken soup” can’t be protected, but an original poem “has copyright protection — because it is an artistic expression (created by a human) that has been memorialized into a tangible format (the written poem),” she says.

Possible overreach. Even so, Microsoft would still be able to claim a license to use the poem at least for the purpose of making it possible for the AI to perform its service. 

“But the license terms here include sublicensing, public performance … aspects beyond what they need to deliver search results to that user,” says Potts Weinstein. “I suspect Microsoft wants to cover themselves from any problems as they use inputs as part of refining the algorithm.”

That said, Microsoft  can restrict the use of their services to personal, non-commercial use. However, Potts Weinstein isn’t sure the company thought through all the possible implications of this.

“Perhaps they are going to launch a commercial version of their AI-powered services that will charge a fee for business users,” she says. “They also might just be thinking of someone using the AI-powered services to generate and sell the AI-content, without considering that a vague “no commercial use” restriction also means I should not use AI-Bing to look for an answer for a work problem.”

Microsoft declined repeated offers to comment on the new terms of service. They can be found here.

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