alt Hacker NewsThat's one of the reasons why they gate Gemini Nano with the "Gemini Nano Program Additional Terms of Service". Even if copyright doesn't subsist in the weights or if using them would be fair use, they still have recourse in breach of contract.
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The problem is that contracts don’t bind subsequent recipients, copyright does
Google gives the model to X who gives it to Y who gives it to Z. X has a contract with Google, so Google can sue X for breach of contract if they violate its terms. But do Y and Z have such a contract? Probably not. Of course, Google can put language in their contract with X to try to make it bind Y and Z too, but is that language going to be legally effective? More often than not, no. The language may enable Google to successfully sue X over Y and Z’s behaviour, but not successfully sue Y and Z directly. Whereas, with copyright, Y and Z are directly liable for violations just as X is
I've wondered about this for a while now (where e.g. some models of HuggingFace require clickwrap license agreements to download, that try to prohibit you from using the model in certain ways.)
It seems to me that if some anonymous ne'er-do-well were to publicly re-host the model files for separate download; and you acquired the files from that person, rather than from Google; then you wouldn't be subject to their license, as you never so much as saw the clickwrap.
(And you wouldn't be committing IP theft by acquiring it from that person, either, because of the non-copyrightability.)
I feel that there must be something wrong with that logic, but I can't for the life of me think of what it is.