Can SE just resell our data, relicense it and remove the attribution requirement?

Question

SE has decided to charge for the network content when used for training AI according to an article. This has not been officially announced here, so we do not know the details.

But the main question to me is what the legal basis of this decision is. Here are the relevant parts of the terms of service as far as I can see:

You agree that any and all content, including without limitation any and all text, graphics, logos, tools, photographs, images, illustrations, software or source code, audio and video, animations, and product feedback (collectively, “Content”) that you provide to the public Network (collectively, “Subscriber Content”), is perpetually and irrevocably licensed to Stack Overflow on a worldwide, royalty-free, non-exclusive basis pursuant to Creative Commons licensing terms (CC BY-SA 4.0), and you grant Stack Overflow the perpetual and irrevocable right and license to access, use, process, copy, distribute, export, display and to commercially exploit such Subscriber Content, even if such Subscriber Content has been contributed and subsequently removed by you as reasonably necessary to, for example (without limitation):

• Provide, maintain, and update the public Network
• Process lawful requests from law enforcement agencies and government agencies
• Prevent and address security incidents and data security features, support features, and to provide technical assistance as it may be required
• Aggregate data to provide product optimization

This means that you cannot revoke permission for Stack Overflow to publish, distribute, store and use such content and to allow others to have derivative rights to publish, distribute, store and use such content. The CC BY-SA 4.0 license terms are explained in further detail by Creative Commons, and the license terms applicable to content are explained in further detail here. You should be aware that all Public Content you contribute is available for public copy and redistribution, and all such Public Content must have appropriate attribution.

This grants SE permission to use the data, but "pursuant to Creative Commons licensing terms (CC BY-SA 4.0)".

The second part looks like a dual-license under a less restrictive license. The limitation of that license by a list that explicitly says it isn't a limitation is a bit odd, but maybe that is some standard legalese. It does not explicitly say "resell", but "commercially exploit" could cover that.

So does SE have the legal right to sell subscriber content under a license different than the CC license it was posted under? Can they essentially remove the attribution requirement whenever they want by relicensing the code?

Answer 1

I'm not a lawyer, but still it's only words. So here is my layman approach at dissecting this section of the current TOS (the TOS was changed several times since the beginning of Stack Overflow, so a separate analysis of past versions of the TOS may be necessary):

1. All content ("all text, graphics, logos, tools, photographs, images, illustrations, software or source code, audio and video, animations, and product feedback") that users provide is called "Subscriber Content".
2. This content is licensed to the company under CC BY-SA 4.0 ("is perpetually and irrevocably licensed to Stack Overflow on a worldwide, royalty-free, non-exclusive basis pursuant to Creative Commons licensing terms (CC BY-SA 4.0)"). I don't think it really matters to whom it is licensed (since CC BY-SA 4.0 content can be used by anyone under the same terms) so maybe one could simply license to "the public", but anyway this is the license you have in mind.
3. Additionally ("and") this content is also licensed very permissively ("you grant Stack Overflow the perpetual and irrevocable right and license to access, use, process, copy, distribute, export, display and to commercially exploit such Subscriber Content") to the company under a second license (roughly as permissive as the MIT license for code is, basically a do whatever you want with it). In particular, no attribution is necessary. This is likely the license that the company preferably intends to use for the AI product and that you may have missed. Using this second license explains why Stack Overflow wouldn't need to give attribution. Other companies than StackOverflow however need to give that. To them only the CC BY-SA would apply unless they buy access to the data under this second license for example.
4. The rest is just safety provisions: also if the content has been removed, and there is no way out, and if you use the content elsewhere you must give attribution. Basically just illustrations of what the above means.

The important part is the word "and" which specifies that there are two licenses. The second license of which does not require attribution but is also specific to the company only.

To directly answer the question: I think they can do that because they reserved that right and users agreed to it when using the service.

As a side remark: If the second license wouldn't exist and the content would only exist under the CC BY-SA license, and someone wanted to train an AI on that data, how and if at all the AI (which may not exactly reproduce the work) need to give attribution? I think this would be a very interesting question for law.SE. After all, what does reproduction and derivative work mean in the age of AI?

Answer 2

Can SE just resell our data, relicense it and remove the attribution requirement?

About reselling:

A while ago, Jeff Atwood stated:

The short answer is that everything you contribute is to our sites is permanently licensed under creative commons, which means we can't put it behind a paywall.

Also: we're not evil.

I pointed out that this is incorrect, since CC BY-SA doesn't prevent selling data (one can even sell public domain data, as JSTOR used to do), and this earned me some insult from a Stack Exchange employee (Shog9), which took a long time (many months) for the moderation to finally remove.

About relicensing it: As Trilarion mentioned, SE ToS indicate there is data is dual licensed, and second license SE gives many right to SE.

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With that being said, since the SE data was made available under CC BY-SA, from my understanding it is legal for a firm to train an AI model on a CC BY-SA 4.0 corpus and make a commercial use of it without distributing the model under CC BY-SA. To be even safer about the BY requirement, the firm could point to a list of all SE contributors. Therefore I think SE's attempt to milk AI companies is made in vain.