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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 wit

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.
      - blooalien 5y ago
        You point out one of the bigger problems with the whole entire giant corporation situation we have today. What is even the point of enforcing laws against those who can simply ignore the law until it's enforced (making massive profits along the way), then pay up, and still come out the other side massively enriched from their crime? As long as enforcement and punishment of corporate lawbreakers doesn't hurt them at all, they're gonna continue to find new ways to abuse the system and get away with it. Only way to change it is to make their crimes really hurt them when they're called to task over it.
        throwaway2037 5y ago
        Reading this chain of comments made me think: What if Copilot was a purely academic creation. Imagine a bunch of computer scientists from ETH Zürich created something identical. Would we be having the same debate? I'm not sure. And yes, I do agree that some tech companies push the boundary of information and commercial law and wait to be tested by someone with deep pockets.
        joshgree88 5y ago
        We absolutely would if their plan was then to produce a paid for product of the backs of all the people who unknowingly contributed - if say they were to release the model and the training corpus in its entirety then nope...
  - joshgree88 5y ago
    If they are legally challenged I should also add cos I don't think they will be...
    - klelatti 5y ago
      Some of that GPL code could have come from firms with big legal departments and deep pockets so a challenge is perfectly possible.
      - throwaway2037 5y ago
        This is a valid point. FSF is very particular about requiring people to reassign copyrights to FSF when you contribute to GNU software. (It is controversial!) They do this to strenghten their legal stance. They can more effectively defend their license and copyrighted code base if the copyright is fully owned by a single legal entity. I could imagine a legal challenge by FSF backed by legal resources from EFF. All we need to do is get Copilot to spit out some non-trivial code (including comments!) from some core GNU utilities. That should be enough to start a lawsuit.
- deleted 5y ago
  [deleted]
swiley 5y ago
I don't know, otherwise intelligent people do some incredibly stupid things with ML pretty often. This wouldn't be Microsoft's first time.
- ipaddr 5y ago
  Remember that smart bot that they had to turn off because it became racist.
kzrdude 5y ago
classic move fast and break things
kethinov 5y ago
Sometimes large institutions with lots of smart people can analyze and get comfortable with positions on issues that turn out to be completely wrong a decade or so later. Happens all the time. I'm not sure whether or not I agree that is happening here, but I've spent enough time in big companies to develop a healthy skepticism of their decision-making processes. So much groupthink.
- yunohn 5y ago
  There is no groupthink, most companies have a legal department that does impartial due diligence, esp. FAANG like Microsoft. I still don't understand how there's so much armchair quarterbacking around legality of Copilot, from people with zero legal skills and just anti-big-tech hot-takes.
  - phone8675309 5y ago
    > There is no groupthink, most companies have a legal department that does impartial due diligence, esp. FAANG like Microsoft. Because Microsoft's legal department (and the company itself) has a spotless reputation for ethical and legal compliance.
    - yunohn 5y ago
      That is simply not the same thing as basic due diligence.
      - joshgree88 5y ago
        I don't actually see anyone suggesting that they haven't thought about the legal implications as you said it would be almost impossible for them not to have - but just because MS believes they are in the clear does not mean they are and more than that they may well be in the clear legally but that still dorles not mean they are doing the right thing...
        yunohn 5y ago
Hamuko 5y ago
Nat Friedman had this to say: >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
- drran 5y ago
  GPL'ed code is not public code. It has the license, which requires fair exchange: if you use my code, then I can use your code under the same license. M$ uses GPL'ed code, so now we have the right to use their code under the same license.
  - Hamuko 5y ago
    I imagine that "public code" means any code that is available in the public - be it under MIT, GPL or no license at all.
    - pmlnr 5y ago
      Public means a very specific thing in this context, namely Public Domain: https://en.wikipedia.org/wiki/Public_domain https://en.wikipedia.org/wiki/Public_domain Anything that is licensed has some level of exclusivity on it, and therefore it is not Public Domain.
      - Hamuko 5y ago
        >Public means a very specific thing in this context What are you basing that? Especially when this is what is on the Copilot FAQ: >GitHub Copilot is powered by OpenAI Codex, a new AI system created by OpenAI. It has been trained on a selection of English language and source code from publicly available sources, including code in public repositories on GitHub. Absolutely zero mentions of public domain.
        pmlnr 5y ago
Vinnl 5y ago
> the lack of public comment on this GitHub's CEO posted this: > In general: (1) training ML systems on public data is fair use (2) the output belongs to the operator, just like with a compiler. https://news.ycombinator.com/item?id=27678354 https://news.ycombinator.com/item?id=27678354
- klelatti 5y ago
  Indeed - I'd missed that (as did Drew DeVault - or chose not to comment on it). Not sure I understand what fair use means in this context though and I can't believe that it's an argument that works for every conceivable model.
- fartcannon 5y ago
  Fair use until it churns up some patented Microsoft code accidentally, and MS sues.
  - dmitriid 5y ago
    https://news.ycombinator.com/item?id=27724479 https://news.ycombinator.com/item?id=27724479
- aliasEli 5y ago
  But with this approach you can generate outputs that are identical or near identical to some of its inputs. It is clearly that copyright laws apply in this situation.
  - kevinventullo 5y ago
    Taken to the extreme: My clipboard is an ML model that trains on exactly one sample at a time. Ctrl + C is a hotkey for doing a training run on currently highlighted data, and Ctrl + V is a hotkey for generating output from the previous run.
- deleted 5y ago
  [deleted]
- 5y ago
syshum 5y ago
Ask 10 lawyers about the legality of ML code, and you will get 100 pages of obfuscation and 1/2 answers. The reality is there is zero case law that fits training of ML models enough for any legal expert to claim jurisprudence makes it legal. ML is too new of a technology for that claim. If ML model is reproducing verbatim entire sections of code, I fail to see how that is "fair use" and not reproduction. I also fail to see how any legal expert would make the claim that it is. The response of "oops it should not have done that" would also not hold up well in a licensing / copyright dispute
user5994461 5y ago
99% sure that Nat Friedman is wrong there. He's correct that AI can train, but it's not relevant. (1) The issue is with CoPilot outputting copyrighted code AND attaching a separate license to it (looks like it's hiding the initial license and can generate another license automatically). This is reproducing copyrighted code and misrepresenting the license, neither is allowed. (2) He posted that the output belong to the operator. It's factually wrong. Original copyrighted code belongs to their original writer, not the operator. In effect Github Copilot cannot "launder" license and it is very wrong for their CEO to claim otherwise. (3) Looks like he's trying to waive responsibility of Github by stating that the developer receiving the code is responsible? Wrong, GitHub is responsible for their actions (vary with the jurisdiction). There's a complex matter of who's responsible when some proprietary code will end up in a company product and they get sued. The company is in violation, they can turn against GitHub for providing copyright code, GitHub was responsible for it. There's a complex chain of responsibility, any lawyer worth their salt would cringe at the claims and responsibility that GitHub is exposing itself to.
- klyrs 5y ago
  The thing that gets my goat here is that repos, and individual files, have their licenses. With effort, github could have linked snippets to the files they came from, and used a mostly-automatic process to identify the license and copyright holder of every quoted snippet. Then, as code gets generated, a conglomerate license could be assembled in parallel. It could emit warnings that licenses are incompatible, or better yet, give the user a choice over which licenses they find acceptable and disallow incompatible licenses. This whole thing could be done above board, and it's pure sloppiness on the part of github that they've chosen not to.
  - CyberRabbi 5y ago
    > sloppiness That’s an understatement. There is a deep lack of understanding of IP issues as demonstrated by their public representatives. Surprising for a company like GitHub where software IP should be a part of their core competency. They have made defenses like “it’s public data” which means nearly nothing in regard to copyright enforcement. The Avengers is public “data” (it’s not data in terms of the law), that doesn’t mean you can use the content for whatever you want. It shows a total lack of respect for the work that the FOSS community does and their rights. This has irreparably changed my perception of GitHub forever in a strongly negative way.
joepie91_ 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 Almost certainly. But what people tend to forget is that "working out the correct legal interpretation" isn't actually the job of a lawyer; it's the job of a judge. The job of a lawyer is to devise a legal strategy that works for the client. In practice that will quite often mean "yes, this is illegal, but we will publicly claim that it's legal and ride the wave, and the consequences will cost us less than we can profit off it". Even if it's not explicitly stated like that and couched in vague "legal risk" handwaving, the lawyer ultimately works for their client and that's who their allegiance is to, not to the law.
- denton-scratch 5y ago
  > the lawyer ultimately works for their client and that's who their allegiance is to, not to the law. That's the way it works in practice; in theory, lawyers are "officers of the court", and are supposed to serve the law.

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.
    - blooalien 5y ago
      You point out one of the bigger problems with the whole entire giant corporation situation we have today. What is even the point of enforcing laws against those who can simply ignore the law until it's enforced (making massive profits along the way), then pay up, and still come out the other side massively enriched from their crime? As long as enforcement and punishment of corporate lawbreakers doesn't hurt them at all, they're gonna continue to find new ways to abuse the system and get away with it. Only way to change it is to make their crimes really hurt them when they're called to task over it.
      - throwaway2037 5y ago
        Reading this chain of comments made me think: What if Copilot was a purely academic creation. Imagine a bunch of computer scientists from ETH Zürich created something identical. Would we be having the same debate? I'm not sure. And yes, I do agree that some tech companies push the boundary of information and commercial law and wait to be tested by someone with deep pockets.
        joshgree88 5y ago
        We absolutely would if their plan was then to produce a paid for product of the backs of all the people who unknowingly contributed - if say they were to release the model and the training corpus in its entirety then nope...
- joshgree88 5y ago
  If they are legally challenged I should also add cos I don't think they will be...
  - klelatti 5y ago
    Some of that GPL code could have come from firms with big legal departments and deep pockets so a challenge is perfectly possible.
    - throwaway2037 5y ago
      This is a valid point. FSF is very particular about requiring people to reassign copyrights to FSF when you contribute to GNU software. (It is controversial!) They do this to strenghten their legal stance. They can more effectively defend their license and copyrighted code base if the copyright is fully owned by a single legal entity. I could imagine a legal challenge by FSF backed by legal resources from EFF. All we need to do is get Copilot to spit out some non-trivial code (including comments!) from some core GNU utilities. That should be enough to start a lawsuit.
deleted 5y ago
[deleted]

swiley 5y ago

I don't know, otherwise intelligent people do some incredibly stupid things with ML pretty often. This wouldn't be Microsoft's first time.

ipaddr 5y ago
Remember that smart bot that they had to turn off because it became racist.

kzrdude 5y ago

classic move fast and break things

kethinov 5y ago

Sometimes large institutions with lots of smart people can analyze and get comfortable with positions on issues that turn out to be completely wrong a decade or so later. Happens all the time. I'm not sure whether or not I agree that is happening here, but I've spent enough time in big companies to develop a healthy skepticism of their decision-making processes. So much groupthink.

yunohn 5y ago
There is no groupthink, most companies have a legal department that does impartial due diligence, esp. FAANG like Microsoft. I still don't understand how there's so much armchair quarterbacking around legality of Copilot, from people with zero legal skills and just anti-big-tech hot-takes.
- phone8675309 5y ago
  > There is no groupthink, most companies have a legal department that does impartial due diligence, esp. FAANG like Microsoft. Because Microsoft's legal department (and the company itself) has a spotless reputation for ethical and legal compliance.
  - yunohn 5y ago
    That is simply not the same thing as basic due diligence.
    - joshgree88 5y ago
      I don't actually see anyone suggesting that they haven't thought about the legal implications as you said it would be almost impossible for them not to have - but just because MS believes they are in the clear does not mean they are and more than that they may well be in the clear legally but that still dorles not mean they are doing the right thing...
      - yunohn 5y ago

Hamuko 5y ago

Nat Friedman had this to say: >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

drran 5y ago
GPL'ed code is not public code. It has the license, which requires fair exchange: if you use my code, then I can use your code under the same license. M$ uses GPL'ed code, so now we have the right to use their code under the same license.
- Hamuko 5y ago
  I imagine that "public code" means any code that is available in the public - be it under MIT, GPL or no license at all.
  - pmlnr 5y ago
    Public means a very specific thing in this context, namely Public Domain: https://en.wikipedia.org/wiki/Public_domain https://en.wikipedia.org/wiki/Public_domain Anything that is licensed has some level of exclusivity on it, and therefore it is not Public Domain.
    - Hamuko 5y ago
      >Public means a very specific thing in this context What are you basing that? Especially when this is what is on the Copilot FAQ: >GitHub Copilot is powered by OpenAI Codex, a new AI system created by OpenAI. It has been trained on a selection of English language and source code from publicly available sources, including code in public repositories on GitHub. Absolutely zero mentions of public domain.
      - pmlnr 5y ago

Vinnl 5y ago

> the lack of public comment on this GitHub's CEO posted this: > In general: (1) training ML systems on public data is fair use (2) the output belongs to the operator, just like with a compiler. https://news.ycombinator.com/item?id=27678354 https://news.ycombinator.com/item?id=27678354

klelatti 5y ago
Indeed - I'd missed that (as did Drew DeVault - or chose not to comment on it). Not sure I understand what fair use means in this context though and I can't believe that it's an argument that works for every conceivable model.
fartcannon 5y ago
Fair use until it churns up some patented Microsoft code accidentally, and MS sues.
- dmitriid 5y ago
  https://news.ycombinator.com/item?id=27724479 https://news.ycombinator.com/item?id=27724479
aliasEli 5y ago
But with this approach you can generate outputs that are identical or near identical to some of its inputs. It is clearly that copyright laws apply in this situation.
- kevinventullo 5y ago
  Taken to the extreme: My clipboard is an ML model that trains on exactly one sample at a time. Ctrl + C is a hotkey for doing a training run on currently highlighted data, and Ctrl + V is a hotkey for generating output from the previous run.
deleted 5y ago
[deleted]
5y ago

syshum 5y ago

Ask 10 lawyers about the legality of ML code, and you will get 100 pages of obfuscation and 1/2 answers. The reality is there is zero case law that fits training of ML models enough for any legal expert to claim jurisprudence makes it legal. ML is too new of a technology for that claim. If ML model is reproducing verbatim entire sections of code, I fail to see how that is "fair use" and not reproduction. I also fail to see how any legal expert would make the claim that it is. The response of "oops it should not have done that" would also not hold up well in a licensing / copyright dispute

user5994461 5y ago

99% sure that Nat Friedman is wrong there. He's correct that AI can train, but it's not relevant. (1) The issue is with CoPilot outputting copyrighted code AND attaching a separate license to it (looks like it's hiding the initial license and can generate another license automatically). This is reproducing copyrighted code and misrepresenting the license, neither is allowed. (2) He posted that the output belong to the operator. It's factually wrong. Original copyrighted code belongs to their original writer, not the operator. In effect Github Copilot cannot "launder" license and it is very wrong for their CEO to claim otherwise. (3) Looks like he's trying to waive responsibility of Github by stating that the developer receiving the code is responsible? Wrong, GitHub is responsible for their actions (vary with the jurisdiction). There's a complex matter of who's responsible when some proprietary code will end up in a company product and they get sued. The company is in violation, they can turn against GitHub for providing copyright code, GitHub was responsible for it. There's a complex chain of responsibility, any lawyer worth their salt would cringe at the claims and responsibility that GitHub is exposing itself to.

klyrs 5y ago
The thing that gets my goat here is that repos, and individual files, have their licenses. With effort, github could have linked snippets to the files they came from, and used a mostly-automatic process to identify the license and copyright holder of every quoted snippet. Then, as code gets generated, a conglomerate license could be assembled in parallel. It could emit warnings that licenses are incompatible, or better yet, give the user a choice over which licenses they find acceptable and disallow incompatible licenses. This whole thing could be done above board, and it's pure sloppiness on the part of github that they've chosen not to.
- CyberRabbi 5y ago
  > sloppiness That’s an understatement. There is a deep lack of understanding of IP issues as demonstrated by their public representatives. Surprising for a company like GitHub where software IP should be a part of their core competency. They have made defenses like “it’s public data” which means nearly nothing in regard to copyright enforcement. The Avengers is public “data” (it’s not data in terms of the law), that doesn’t mean you can use the content for whatever you want. It shows a total lack of respect for the work that the FOSS community does and their rights. This has irreparably changed my perception of GitHub forever in a strongly negative way.

joepie91_ 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 Almost certainly. But what people tend to forget is that "working out the correct legal interpretation" isn't actually the job of a lawyer; it's the job of a judge. The job of a lawyer is to devise a legal strategy that works for the client. In practice that will quite often mean "yes, this is illegal, but we will publicly claim that it's legal and ride the wave, and the consequences will cost us less than we can profit off it". Even if it's not explicitly stated like that and couched in vague "legal risk" handwaving, the lawyer ultimately works for their client and that's who their allegiance is to, not to the law.

denton-scratch 5y ago
> the lawyer ultimately works for their client and that's who their allegiance is to, not to the law. That's the way it works in practice; in theory, lawyers are "officers of the court", and are supposed to serve the law.