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Is GitHub a derivative work of GPL'd software?

237 points by als0 5y ago

agnosticmantis 5y ago
I’m not sure technically how difficult it is for copilot to give an attribution when needed. But as a temporary legal fix, couldn’t they put all the attributions in one large file and after each output of copilot write: “results based on the work of these people [link to attributions.txt].“ would that still be problematic?
- beervirus 5y ago
  Doesn’t do anything about the viral nature of the GPL.
  - lolinder 5y ago
    In fact, it would probably hurt their "fair use" argument to make a token effort to comply with more permissive licenses while failing to comply with the GPL. They're better off continuing to argue fair use.
- jarofgreen 5y ago
  That assumes attribution is the only issue here. It's not. Code under open source licenses comes with other conditions (warranty disclaimers, release under open source license, etc).
  - agnosticmantis 5y ago
    Thanks, that’s a good point I didn’t consider.
Etheryte 5y ago
Of all the possible outcomes of Copilot, someone suing Github and demanding they make their source code available would be by far the most hilarious timeline of the whole Copilot debacle.
- Y_Y 5y ago
  Maybe it was even a clever trick by some developers who wanted to outfox Microsoft and force them to release GitHub's source.
  - frou_dh 5y ago
    They already tripped over their own shoelaces and leaked it last year.
- beervirus 5y ago
  Hey maybe their corporate overlords have been using this tool to develop Windows too.
joshgree88 5y ago
I think saying all off Github source should now be GPL is going a little far but I do feel very strongly that the people who contributed to the "intelligence" in copilot (most likely everyone who has committed to a public GH repo) should have access to the training dataset and the underlying model and its weights - obviously there is a lot more involved in actually making copilot from this but it would allow other people to start to compete fairly
- joshgree88 5y ago
  Of course I don't think there will be any legal route to anything of this kind but I think there is a strong moral case that obviously MS will ignore completely...
klelatti 5y ago
I find it hard to believe that an organisation with GitHub's expertise and resources haven't analysed (and got comfortable with) the legal issues associated with the use of GPL / AGPL software to train CoPilot - so the lack of public comment on this is surprising. Edit: Thanks to those who have pointed out that Nat Friedman has publicly commented on this (on HN!). My mistake. >In terms of the permissibility of training on public code, the jurisprudence here – broadly relied upon by the machine learning community – is that training ML models is fair use. https://news.ycombinator.com/item?id=27677177 https://news.ycombinator.com/item?id=27677177
- joshgree88 5y ago
  But the legal opinion will be "your in completely new waters here, it's for us to guide the legal debate in our own favor" - a fundamental part of that will be to pretend no issues exist and to wait for the moves of other actors first
  - klelatti 5y ago
    My best guess is that they have a legal 'argument' which they have chosen not to disclose yet. I think it's unlikely that 'brazen it out' would have got the green light - especially for MS and GH which, lets face it, depend a lot on developer buy-in.
    - joshgree88 5y ago
      Oh yeah of course - I am sure they have multiple legal arguments and different ones will be deployed based on how they are legally challenged - I doubt very much they didn't see this coming - but at its heart I think MS are confident they can get away with it...
      - voakbasda 5y ago
        Like any criminal. The risk of getting caught and punished is balanced against the potential reward. They know the courts can be gamed long enough to make more money than it will cost them. This is the essential nature of business at their scale. Uber, AirBnb, and now Copilot: screw the law, there’s profit to be made.
deleted 5y ago
[deleted]
willeh 5y ago
I think the maximalist interpretation of copyright as it applies to software is dying out. Just as the phrase "Once upon a time" certainly isn't copyrightable its equivalents in software obviously cannot be either. While the legal system hasn't 100% caught up to this fact because software is still a relatively new thing, it eventually will. Implementing, for instance, Dijkstra's algorithm with the help of a tool that has read a bunch of GPL'd code will not create a derived work, the comments can get you in trouble certainly, but without them I have a hard time seeing it. Even so the standard for damages in most of the world is actual damages.
- kzrdude 5y ago
  I hope college students accused of plagiarism by some algorithm also get the same leniency (honestly).
shp0ngle 5y ago
When the same problem was with Google News - news industry saying, that Google just takes their copyrighted work and makes it available for free through machine learning - people on here usually sided with Google.
- rjknight 5y ago
  That isn’t what Google News does. Google News takes a snippet and links to the full story, the equivalent of, say, taking the type signatures from a library and then linking to the library.
  - djthorpe 5y ago
    Not quite - they would need to determine the relevancy of the news story within clusters of stories as well, so it's likely they would take the whole article in order to feed into the clustering algorithm. The result is that a number of articles are clustered together through that algorithm and displays a link to the story with a snippet to allow the user to determine the relevancy.
    - jarofgreen 5y ago
      > displays a link to the story with a snippet Thats probably the difference that explains the different reactions. At the end of the day, Google News gave traffic to publishers websites. Copilot is very different.
    - pessimizer 5y ago
      The difference to my eyes is that while Google News processes the article, it doesn't spit it back out. It tags it for searching and for sorting into a directory, and presents it within that directory in the same way it would be displayed in any search engine. I've always thought the riskiest part of Google News are the tiny thumbnail images used to illustrate each story section. I wonder if they pay for those; I think they might.
chrismorgan 5y ago
There’s a curious tendency in these discussions to focus on the GPL as though it were special. If the original licenses apply, then you’ll be embedding code under all kinds of different licenses—some of which are sure to be mutually incompatible. To be sure, the infectious nature of the GPL is likely to be a bigger deal, but permissive licenses will be violated by missing acknowledgement just as much as the GPL will be violated by not licensing your code GPL. If this license-washing doesn’t work, then you can’t just say “we’ll exclude GPL sources”, because you’ll still be breaking the rules on any copyrighted work that doesn’t have very specific public-domain-like do-whatever-you-like-and-don’t-acknowledge-me licensing. The whole thing truly does depend on the fair-use classification of ML models. If that falls apart, the entire thing’s done (and a lot of other ML stuff will be, too). And that’s where regurgitation becomes so problematic, because it directly undermines that fair-use exemption.
- aliasEli 5y ago
  The entire problem could have been avoided if they had just trained their models on code with a permissive license.
  - goodpoint 5y ago
    No. A lot of weak licenses still require attribution.
    - blooalien 5y ago
      Yep. They would have had to filter their training data down to the most permissive licenses to be entirely safe. The WTFPL, CC0, and any others that give full "do as you please" permissions.
      - goodpoint 5y ago
        WTFPL and CC0 apply to a tiny fraction of FLOSS software. More importantly, just because a chunk of code is published under CC0 on github that does not give you any guarantee that such code is not already breaching an existing copyright. It happened in various occasions that closed source code was leaked into FLOSS projects and if you reuse it you are in breach of the license as well.
jakelazaroff 5y ago
> Another tweet suggests that, if the answer is “no”, GitHub Copilot can be used as a means of washing the GPL off of code you want to use without obeying its license. eevee’s tweet actually suggests the opposite: that even derivative works of GPL-licensed software must also use the GPL. Thread on the tweet in question https://news.ycombinator.com/item?id=27687450 https://news.ycombinator.com/item?id=27687450
est31 5y ago
I think this is an interesting problem that will likely be discussed for the forseeable future. On one hand, finding large datasets where you have a legal guarantee that all data is licensed for thus purpose is impossible. If you say that a license needs to be obtained, you'd make such products impossible. If you say that a license does not need to be obtained though, you get the situation that you can launder licenses. Either GPL, or even proprietary licenses if it ran through a decompiler. The pessimist in me believes that this fundamental conflict will be used by big established players to get rid of smaller competition, and otherwise won't benefit anyone. Ultimately, this question also involves one of humans. When I read a book on programming, and use some of the tricks I've just learned in a project of mine, do I violate the publisher's copyright? Do humans posess a "license to launder" that silicon training circuits lack?
- simion314 5y ago
  >When I read a book on programming, The author and the book were published for the exact this reason, you learning stuff . But in this case situation is different, someone creates a blackbox program and puts in all of your code that is under license X . Then they sell this blackbox program, and depending on what input people give to the blackbox it will output parts of your stuff. If your stuff is original then the chance is that most of it will be inside the blackbox and it will be spit out with the right inputs, and copyright and licenses are now washed. Personally I am surprised on how amateurish this seems to be, seems like they used mostly text as input and not something more advanced , if MS did not put the properietary code they own in the blackbox then I am also suspicious.
h2odragon 5y ago
I deleted my GitHub almost a year ago, for reasons (see later). Apparently this doesn't prevent them publishing things in the Code Vault, or via this; that I might have wished to remove from their custody. User agreements that amount to "you agree to be used," I guess. If whatever stalker that I offended becomes unhappy that they might not have gotten my code off the net completely, are they gonna blame GitHub for it, or continue to try getting others to take actions against me? If some court sided with them and decided I had liability for publishing that code; would GitHub's possible resurrection of it be their responsibility, or mine? EDIT: previously stated "after they offered me the option to do that or adopt a Code of Conduct on a single contributor project of mine." Perhaps I'm wrong about the source of that; but I did delete my account and expected that they would no longer publish my code as such; others had forked things and that was as expected.
- rcfox 5y ago
  > I deleted my GitHub almost a year ago, after they offered me the option to do that or adopt a Code of Conduct on a single contributor project of mine. As in: they reached out to you directly and stated "you must adopt this CoC or we'll ban you from GitHub"? I can't find any other instances of people encountering this...
  - geschwindner 5y ago
    Yeah, I call BS
  - h2odragon 5y ago
    I may have fallen for someone's scam; i haven't heard of anyone else offered that choice, either. Then again, i was asked to pull that stuff off Steam Workshop too; which is also similarly unheard of afaik.
- matheusmoreira 5y ago
  > I deleted my GitHub almost a year ago, after they offered me the option to do that or adopt a Code of Conduct on a single contributor project of mine. Can you please elaborate on this?
aliasEli 5y ago
For which code did they use copilot. If it was just software for internal use, there is no real problem with the GPL. That only starts when you distribute binaries based on GPL-ed code.
- beervirus 5y ago
  It matters if their online service has incorporated AGPL code.
  - aliasEli 5y ago
    Yes, it might. My comment assumed that GPL meant the GNU Public License, where you are allowed to use the code, but are restricted to distribute binaries. AGPL is a different license, and it's probably not legal that code with that license should have been used in their training set.
- deleted 5y ago
  [deleted]
snemvalts 5y ago
Aren't they already? Their source code leaked late last year https://news.ycombinator.com/item?id=24994746 https://news.ycombinator.com/item?id=24994746
- meibo 5y ago
  Note that this was basically GitHub Enterprise, they just didn't minify it for one release, which is what got leaked. You were able to get pretty much that same output from an Enterprise install.
- beervirus 5y ago
  Leaked source code isn’t the same as licensed source code.
tzahifadida 5y ago
It is not a derivative work if what they say about copilot is true. This is the same as a human learning to code from gpl libraries and then generating code from memory. Obviously it is less likely to be the same and is definitively not derivative.
- gravypod 5y ago
  While I disagree with this sentiment, if we take this as true and consider it "the same as a human learning to code from gpl libraries" this opens up an entirely different can of worms when it comes to patent assignment.
- dTal 5y ago
  A human won't "accidentally" retype the source code to Quake, including comments, changing only the license - so no, it isn't like that.
  - hypertele-Xii 5y ago
    If GitHub survives in court over this, I guarantee you someone will :3
- soonerroadie 5y ago
  If you read something that is copyrighted and rewrite it from memory, that’s still copying for purposes of the copyright act. There are cases about music where that’s unintentionally happened and the inadvertent copier was held liable. It’s basically what the machine learning is doing. Committing something to memory is no defense to copyright - I would recon a good number of people could recite any number of copyrighted works from memory (e.g., episodes of The Office, Seinfeld, or popular songs). If a person wrote that down and tried to sell it, I’m convinced a court would hold that person liable. There is a defense of “independent creation,” but basically if you saw/heard the copyrighted work before then it’s very hard to use that as a defense.
- marcodiego 5y ago
  If copilot produces a verbatim copy or just small changes, like changing the names of variables, for a long enough piece of code, this is definitely copyright infringement if they don't obey the license terms of the code that copilot "learned" from.
geschwindner 5y ago
The harsh truth for a lot of license purists (myself included) is that nobody cares about GPL/copyleft when push comes to shove. It’s a purely PR thing. Nobody will ever put energy into taking legal action. I know several programmers working at multi million/billion dollar companies that use GPL/AGPL libraries within completely closed source codebases. Some of these products are shipped as DLLs/binaries rather than hidden behind web services, and even still, nothing has ever come out of it as far as license enforcement. Your company’s legal department will not look for these things proactively. Copilot may be the Napster moment that changes this, though.
- jeremyjh 5y ago
  Maybe you and your friends do not care, but I do. Do you actually think there has never been an enforcement action taken on GPL code? Did you even Google it before vomiting this nonsense on the screen?
  - murgindrag 5y ago
    I care, but I don't deny the reality we have an enforcement issue. That's not just GPL. That's most businesses, schools, and many individuals. I would guess 0.1% of GPL violations have as much as a legal demand letter, let alone a law suit.
  - geschwindner 5y ago
    No need to be so combative, Jeremy. I care deeply about licenses, and as a contributor to some (A)GPL licensed works, I’d love for people to follow the license to the tee. The truth is that stealing open source code does not have the same monetary repercussions as stealing closed source code. Nowhere close to it. You have to acknowledge that there is an enforcement issue, either due to monetary or motivational (Linux) reasons. Have there been license enforcements? Yes, a small number. But nowhere close to enough to make a team with a deadline think twice. Compared to stealing a competitor’s code, the expected value of the punishment for using some GPL code quietly is a rounding error.
- syshum 5y ago
syshum 5y ago
>>the tech community may have yet to address, or even understand the depth of. I think the offical position of most tech companies is to simply hand wave away any concerns the community(ies) may have about the legality, ethics, or anything else related to these disruptive technologies. They want to push them as fast as possible into the market to make them impossible to economically remove "fixing" the issues later.
- denton-scratch 5y ago
  When I worked for $BIGCORP, someone pulled a chunk of GPL crypto code into our proprietary commmercial product. When the CTO found out, that GPL code was ejected from the project. I can't remember if we had to hunt down a replacement with a looser licence, or do a clean-room re-implementation, but it cost the company money to come into compliance.
z5h 5y ago
Doesn’t this grey area give Microsoft’s competition legal ammunition to cause Microsoft significant problems?
rognjen 5y ago
No. https://en.m.wikipedia.org/wiki/Betteridge%27s_law_of_headlines https://en.m.wikipedia.org/wiki/Betteridge%27s_law_of_headli...
softwaredoug 5y ago
This goes beyond Copilot, it's also about big tech exploitation of any publicly available asset - whether its your blog or wikipedia. Big tech uses other public or "free" CC, etc knowledge bases to train ML models. Like Wikipedia as a training set for a GPT or word2vec model. Or using WikiData to seed a knowledge graph. Or training based on a common crawl dataset. All of these resources are used to make the assets that major tech companies use to make their products a lot smarter. They're built on the free labor of the rest of society. Big tech reaps tremendous, society altering benefits from the free labor of others. And "training a model" seems to whitewash away the licensing concerns. Shouldn't that be disconcerting whether we are developers or wikipedia editors?
- 6gvONxR4sf7o 5y ago
  I agree completely. It would be great to see content licenses that were “viral” towards ML the way GPL is within code, plus restrictions on fair use for this kind of thing. Then if you want to use everyone’s collective labor, you have to give back as well. Instead, we just see everyone using the “all rights reserved” license, and the commercializer saying who cares it’s fair use.
- breck 5y ago
  We can amend the constitution. We can abolish copyright (https://breckyunits.com/the-intellectual-freedom-amendment.html https://breckyunits.com/the-intellectual-freedom-amendment.h...) I think we have overwhelming data at this point. What you rather have: Linux or Windows? The WWW or American Online? Wikipedia or Encyclopedia Britannica? Sqlite or Oracle? Copyright law hinders the creation of ideas, not helps. It's time for Intellectual Freedom.
  - pmlnr 5y ago
    Abolishing copyright will remove copyleft as well. Careful what you wish for; it might just become a pre free software world with all source carefully locked away from the public eye.
    - 5y ago
wyldfire 5y ago
What a cool court case this would make. Is copilot's model sufficiently abstracted from the code it has read? Judges and juries learning about how the GitHub team avoided overfitting? Are humans who have read open source code producing derivative works? Won't be long until we see an infringement case. /me grabs popcorn
CivBase 5y ago
I'm starting to think universities need to offer (and maybe require) classes about distribution and licensing as part of ComSci/Eng tracks.
villgax 5y ago
So meta
SergeAx 5y ago
More interesting question is "Can it be proven and how?". Proof may be obtained via audit of those 300 GitHub employees' contribution during their Copilot evaluation. Who may order such an audit? On what basis?
zeroimpl 5y ago
> this may entitle all GitHub users to receive a copy of GitHub’s source code under the terms of the AGPL Given that GitHub’s code runs on their own servers, doesn’t that protect them from needing to provide source code to anybody? I’ve always assumed running GPL code in the data center is fine.
- denton-scratch 5y ago
  Not all of the code GH is using is GPL-licensed. I share your view that it's fine to use GPL code in-house, or generally copy it for private use. But you can't use Windows in-house without a licence.

237 points by als0 5y ago

I’m not sure technically how difficult it is for copilot to give an attribution when needed. But as a temporary legal fix, couldn’t they put all the attributions in one large file and after each output of copilot write: “results based on the work of these people [link to attributions.txt].“ would that still be problematic?

beervirus 5y ago
Doesn’t do anything about the viral nature of the GPL.
- lolinder 5y ago
  In fact, it would probably hurt their "fair use" argument to make a token effort to comply with more permissive licenses while failing to comply with the GPL. They're better off continuing to argue fair use.
jarofgreen 5y ago
That assumes attribution is the only issue here. It's not. Code under open source licenses comes with other conditions (warranty disclaimers, release under open source license, etc).
- agnosticmantis 5y ago
  Thanks, that’s a good point I didn’t consider.

Etheryte 5y ago

Of all the possible outcomes of Copilot, someone suing Github and demanding they make their source code available would be by far the most hilarious timeline of the whole Copilot debacle.

Y_Y 5y ago
Maybe it was even a clever trick by some developers who wanted to outfox Microsoft and force them to release GitHub's source.
- frou_dh 5y ago
  They already tripped over their own shoelaces and leaked it last year.
beervirus 5y ago
Hey maybe their corporate overlords have been using this tool to develop Windows too.

joshgree88 5y ago

I think saying all off Github source should now be GPL is going a little far but I do feel very strongly that the people who contributed to the "intelligence" in copilot (most likely everyone who has committed to a public GH repo) should have access to the training dataset and the underlying model and its weights - obviously there is a lot more involved in actually making copilot from this but it would allow other people to start to compete fairly

joshgree88 5y ago
Of course I don't think there will be any legal route to anything of this kind but I think there is a strong moral case that obviously MS will ignore completely...

klelatti 5y ago

I find it hard to believe that an organisation with GitHub's expertise and resources haven't analysed (and got comfortable with) the legal issues associated with the use of GPL / AGPL software to train CoPilot - so the lack of public comment on this is surprising. Edit: Thanks to those who have pointed out that Nat Friedman has publicly commented on this (on HN!). My mistake. >In terms of the permissibility of training on public code, the jurisprudence here – broadly relied upon by the machine learning community – is that training ML models is fair use. https://news.ycombinator.com/item?id=27677177 https://news.ycombinator.com/item?id=27677177

joshgree88 5y ago
But the legal opinion will be "your in completely new waters here, it's for us to guide the legal debate in our own favor" - a fundamental part of that will be to pretend no issues exist and to wait for the moves of other actors first
- klelatti 5y ago
  My best guess is that they have a legal 'argument' which they have chosen not to disclose yet. I think it's unlikely that 'brazen it out' would have got the green light - especially for MS and GH which, lets face it, depend a lot on developer buy-in.
  - joshgree88 5y ago
    Oh yeah of course - I am sure they have multiple legal arguments and different ones will be deployed based on how they are legally challenged - I doubt very much they didn't see this coming - but at its heart I think MS are confident they can get away with it...
    - voakbasda 5y ago
      Like any criminal. The risk of getting caught and punished is balanced against the potential reward. They know the courts can be gamed long enough to make more money than it will cost them. This is the essential nature of business at their scale. Uber, AirBnb, and now Copilot: screw the law, there’s profit to be made.

deleted 5y ago

[deleted]

willeh 5y ago

I think the maximalist interpretation of copyright as it applies to software is dying out. Just as the phrase "Once upon a time" certainly isn't copyrightable its equivalents in software obviously cannot be either. While the legal system hasn't 100% caught up to this fact because software is still a relatively new thing, it eventually will. Implementing, for instance, Dijkstra's algorithm with the help of a tool that has read a bunch of GPL'd code will not create a derived work, the comments can get you in trouble certainly, but without them I have a hard time seeing it. Even so the standard for damages in most of the world is actual damages.

kzrdude 5y ago
I hope college students accused of plagiarism by some algorithm also get the same leniency (honestly).

shp0ngle 5y ago

When the same problem was with Google News - news industry saying, that Google just takes their copyrighted work and makes it available for free through machine learning - people on here usually sided with Google.

rjknight 5y ago
That isn’t what Google News does. Google News takes a snippet and links to the full story, the equivalent of, say, taking the type signatures from a library and then linking to the library.
- djthorpe 5y ago
  Not quite - they would need to determine the relevancy of the news story within clusters of stories as well, so it's likely they would take the whole article in order to feed into the clustering algorithm. The result is that a number of articles are clustered together through that algorithm and displays a link to the story with a snippet to allow the user to determine the relevancy.
  - jarofgreen 5y ago
    > displays a link to the story with a snippet Thats probably the difference that explains the different reactions. At the end of the day, Google News gave traffic to publishers websites. Copilot is very different.
  - pessimizer 5y ago
    The difference to my eyes is that while Google News processes the article, it doesn't spit it back out. It tags it for searching and for sorting into a directory, and presents it within that directory in the same way it would be displayed in any search engine. I've always thought the riskiest part of Google News are the tiny thumbnail images used to illustrate each story section. I wonder if they pay for those; I think they might.

chrismorgan 5y ago

There’s a curious tendency in these discussions to focus on the GPL as though it were special. If the original licenses apply, then you’ll be embedding code under all kinds of different licenses—some of which are sure to be mutually incompatible. To be sure, the infectious nature of the GPL is likely to be a bigger deal, but permissive licenses will be violated by missing acknowledgement just as much as the GPL will be violated by not licensing your code GPL. If this license-washing doesn’t work, then you can’t just say “we’ll exclude GPL sources”, because you’ll still be breaking the rules on any copyrighted work that doesn’t have very specific public-domain-like do-whatever-you-like-and-don’t-acknowledge-me licensing. The whole thing truly does depend on the fair-use classification of ML models. If that falls apart, the entire thing’s done (and a lot of other ML stuff will be, too). And that’s where regurgitation becomes so problematic, because it directly undermines that fair-use exemption.

aliasEli 5y ago
The entire problem could have been avoided if they had just trained their models on code with a permissive license.
- goodpoint 5y ago
  No. A lot of weak licenses still require attribution.
  - blooalien 5y ago
    Yep. They would have had to filter their training data down to the most permissive licenses to be entirely safe. The WTFPL, CC0, and any others that give full "do as you please" permissions.
    - goodpoint 5y ago
      WTFPL and CC0 apply to a tiny fraction of FLOSS software. More importantly, just because a chunk of code is published under CC0 on github that does not give you any guarantee that such code is not already breaching an existing copyright. It happened in various occasions that closed source code was leaked into FLOSS projects and if you reuse it you are in breach of the license as well.

jakelazaroff 5y ago

> Another tweet suggests that, if the answer is “no”, GitHub Copilot can be used as a means of washing the GPL off of code you want to use without obeying its license. eevee’s tweet actually suggests the opposite: that even derivative works of GPL-licensed software must also use the GPL. Thread on the tweet in question https://news.ycombinator.com/item?id=27687450 https://news.ycombinator.com/item?id=27687450

est31 5y ago

I think this is an interesting problem that will likely be discussed for the forseeable future. On one hand, finding large datasets where you have a legal guarantee that all data is licensed for thus purpose is impossible. If you say that a license needs to be obtained, you'd make such products impossible. If you say that a license does not need to be obtained though, you get the situation that you can launder licenses. Either GPL, or even proprietary licenses if it ran through a decompiler. The pessimist in me believes that this fundamental conflict will be used by big established players to get rid of smaller competition, and otherwise won't benefit anyone. Ultimately, this question also involves one of humans. When I read a book on programming, and use some of the tricks I've just learned in a project of mine, do I violate the publisher's copyright? Do humans posess a "license to launder" that silicon training circuits lack?

simion314 5y ago
>When I read a book on programming, The author and the book were published for the exact this reason, you learning stuff . But in this case situation is different, someone creates a blackbox program and puts in all of your code that is under license X . Then they sell this blackbox program, and depending on what input people give to the blackbox it will output parts of your stuff. If your stuff is original then the chance is that most of it will be inside the blackbox and it will be spit out with the right inputs, and copyright and licenses are now washed. Personally I am surprised on how amateurish this seems to be, seems like they used mostly text as input and not something more advanced , if MS did not put the properietary code they own in the blackbox then I am also suspicious.

h2odragon 5y ago

I deleted my GitHub almost a year ago, for reasons (see later). Apparently this doesn't prevent them publishing things in the Code Vault, or via this; that I might have wished to remove from their custody. User agreements that amount to "you agree to be used," I guess. If whatever stalker that I offended becomes unhappy that they might not have gotten my code off the net completely, are they gonna blame GitHub for it, or continue to try getting others to take actions against me? If some court sided with them and decided I had liability for publishing that code; would GitHub's possible resurrection of it be their responsibility, or mine? EDIT: previously stated "after they offered me the option to do that or adopt a Code of Conduct on a single contributor project of mine." Perhaps I'm wrong about the source of that; but I did delete my account and expected that they would no longer publish my code as such; others had forked things and that was as expected.

rcfox 5y ago
> I deleted my GitHub almost a year ago, after they offered me the option to do that or adopt a Code of Conduct on a single contributor project of mine. As in: they reached out to you directly and stated "you must adopt this CoC or we'll ban you from GitHub"? I can't find any other instances of people encountering this...
- geschwindner 5y ago
  Yeah, I call BS
- h2odragon 5y ago
  I may have fallen for someone's scam; i haven't heard of anyone else offered that choice, either. Then again, i was asked to pull that stuff off Steam Workshop too; which is also similarly unheard of afaik.
matheusmoreira 5y ago
> I deleted my GitHub almost a year ago, after they offered me the option to do that or adopt a Code of Conduct on a single contributor project of mine. Can you please elaborate on this?

aliasEli 5y ago

For which code did they use copilot. If it was just software for internal use, there is no real problem with the GPL. That only starts when you distribute binaries based on GPL-ed code.

beervirus 5y ago
It matters if their online service has incorporated AGPL code.
- aliasEli 5y ago
  Yes, it might. My comment assumed that GPL meant the GNU Public License, where you are allowed to use the code, but are restricted to distribute binaries. AGPL is a different license, and it's probably not legal that code with that license should have been used in their training set.
deleted 5y ago
[deleted]

snemvalts 5y ago

Aren't they already? Their source code leaked late last year https://news.ycombinator.com/item?id=24994746 https://news.ycombinator.com/item?id=24994746

meibo 5y ago
Note that this was basically GitHub Enterprise, they just didn't minify it for one release, which is what got leaked. You were able to get pretty much that same output from an Enterprise install.
beervirus 5y ago
Leaked source code isn’t the same as licensed source code.

tzahifadida 5y ago

It is not a derivative work if what they say about copilot is true. This is the same as a human learning to code from gpl libraries and then generating code from memory. Obviously it is less likely to be the same and is definitively not derivative.

gravypod 5y ago
While I disagree with this sentiment, if we take this as true and consider it "the same as a human learning to code from gpl libraries" this opens up an entirely different can of worms when it comes to patent assignment.
dTal 5y ago
A human won't "accidentally" retype the source code to Quake, including comments, changing only the license - so no, it isn't like that.
- hypertele-Xii 5y ago
  If GitHub survives in court over this, I guarantee you someone will :3
soonerroadie 5y ago
If you read something that is copyrighted and rewrite it from memory, that’s still copying for purposes of the copyright act. There are cases about music where that’s unintentionally happened and the inadvertent copier was held liable. It’s basically what the machine learning is doing. Committing something to memory is no defense to copyright - I would recon a good number of people could recite any number of copyrighted works from memory (e.g., episodes of The Office, Seinfeld, or popular songs). If a person wrote that down and tried to sell it, I’m convinced a court would hold that person liable. There is a defense of “independent creation,” but basically if you saw/heard the copyrighted work before then it’s very hard to use that as a defense.
marcodiego 5y ago
If copilot produces a verbatim copy or just small changes, like changing the names of variables, for a long enough piece of code, this is definitely copyright infringement if they don't obey the license terms of the code that copilot "learned" from.

geschwindner 5y ago

The harsh truth for a lot of license purists (myself included) is that nobody cares about GPL/copyleft when push comes to shove. It’s a purely PR thing. Nobody will ever put energy into taking legal action. I know several programmers working at multi million/billion dollar companies that use GPL/AGPL libraries within completely closed source codebases. Some of these products are shipped as DLLs/binaries rather than hidden behind web services, and even still, nothing has ever come out of it as far as license enforcement. Your company’s legal department will not look for these things proactively. Copilot may be the Napster moment that changes this, though.

jeremyjh 5y ago
Maybe you and your friends do not care, but I do. Do you actually think there has never been an enforcement action taken on GPL code? Did you even Google it before vomiting this nonsense on the screen?
- murgindrag 5y ago
  I care, but I don't deny the reality we have an enforcement issue. That's not just GPL. That's most businesses, schools, and many individuals. I would guess 0.1% of GPL violations have as much as a legal demand letter, let alone a law suit.
- geschwindner 5y ago
  No need to be so combative, Jeremy. I care deeply about licenses, and as a contributor to some (A)GPL licensed works, I’d love for people to follow the license to the tee. The truth is that stealing open source code does not have the same monetary repercussions as stealing closed source code. Nowhere close to it. You have to acknowledge that there is an enforcement issue, either due to monetary or motivational (Linux) reasons. Have there been license enforcements? Yes, a small number. But nowhere close to enough to make a team with a deadline think twice. Compared to stealing a competitor’s code, the expected value of the punishment for using some GPL code quietly is a rounding error.
syshum 5y ago

syshum 5y ago

>>the tech community may have yet to address, or even understand the depth of. I think the offical position of most tech companies is to simply hand wave away any concerns the community(ies) may have about the legality, ethics, or anything else related to these disruptive technologies. They want to push them as fast as possible into the market to make them impossible to economically remove "fixing" the issues later.

denton-scratch 5y ago
When I worked for $BIGCORP, someone pulled a chunk of GPL crypto code into our proprietary commmercial product. When the CTO found out, that GPL code was ejected from the project. I can't remember if we had to hunt down a replacement with a looser licence, or do a clean-room re-implementation, but it cost the company money to come into compliance.

z5h 5y ago

Doesn’t this grey area give Microsoft’s competition legal ammunition to cause Microsoft significant problems?

rognjen 5y ago

No. https://en.m.wikipedia.org/wiki/Betteridge%27s_law_of_headlines https://en.m.wikipedia.org/wiki/Betteridge%27s_law_of_headli...

softwaredoug 5y ago

This goes beyond Copilot, it's also about big tech exploitation of any publicly available asset - whether its your blog or wikipedia. Big tech uses other public or "free" CC, etc knowledge bases to train ML models. Like Wikipedia as a training set for a GPT or word2vec model. Or using WikiData to seed a knowledge graph. Or training based on a common crawl dataset. All of these resources are used to make the assets that major tech companies use to make their products a lot smarter. They're built on the free labor of the rest of society. Big tech reaps tremendous, society altering benefits from the free labor of others. And "training a model" seems to whitewash away the licensing concerns. Shouldn't that be disconcerting whether we are developers or wikipedia editors?

6gvONxR4sf7o 5y ago
I agree completely. It would be great to see content licenses that were “viral” towards ML the way GPL is within code, plus restrictions on fair use for this kind of thing. Then if you want to use everyone’s collective labor, you have to give back as well. Instead, we just see everyone using the “all rights reserved” license, and the commercializer saying who cares it’s fair use.
breck 5y ago
We can amend the constitution. We can abolish copyright (https://breckyunits.com/the-intellectual-freedom-amendment.html https://breckyunits.com/the-intellectual-freedom-amendment.h...) I think we have overwhelming data at this point. What you rather have: Linux or Windows? The WWW or American Online? Wikipedia or Encyclopedia Britannica? Sqlite or Oracle? Copyright law hinders the creation of ideas, not helps. It's time for Intellectual Freedom.
- pmlnr 5y ago
  Abolishing copyright will remove copyleft as well. Careful what you wish for; it might just become a pre free software world with all source carefully locked away from the public eye.
  - 5y ago

wyldfire 5y ago

What a cool court case this would make. Is copilot's model sufficiently abstracted from the code it has read? Judges and juries learning about how the GitHub team avoided overfitting? Are humans who have read open source code producing derivative works? Won't be long until we see an infringement case. /me grabs popcorn

CivBase 5y ago

I'm starting to think universities need to offer (and maybe require) classes about distribution and licensing as part of ComSci/Eng tracks.

villgax 5y ago

So meta

SergeAx 5y ago

More interesting question is "Can it be proven and how?". Proof may be obtained via audit of those 300 GitHub employees' contribution during their Copilot evaluation. Who may order such an audit? On what basis?

zeroimpl 5y ago

> this may entitle all GitHub users to receive a copy of GitHub’s source code under the terms of the AGPL Given that GitHub’s code runs on their own servers, doesn’t that protect them from needing to provide source code to anybody? I’ve always assumed running GPL code in the data center is fine.

denton-scratch 5y ago
Not all of the code GH is using is GPL-licensed. I share your view that it's fine to use GPL code in-house, or generally copy it for private use. But you can't use Windows in-house without a licence.