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I disagree with this article. GitHub Copilot is indeed infringing copyright and not only in a grey zone, but in a very clear black and white fashion that our co

I disagree with this article. GitHub Copilot is indeed infringing copyright and not only in a grey zone, but in a very clear black and white fashion that our corporate taskmasters (Microsoft included) have defended as infringement. The legal debate around copyright infringement has always centered around the rights granted by the owner vs the rights appropriated by the user, with the owner's wants superseding user needs/wants. Any open-source code available on Github is controlled by the copyright notice of the owner granting specific rights to users. Copilot is a commercial product, therefore, Github can only use code that the owners make available for commercial use. Every other instance of code used is a case of copyright infringement, a clear case by Microsoft's own definition of copyright infringement [1][2]. Github (and by extension Microsoft) is gambling on the fact that their license agreement granting them a license to the code in exchange for access to the platform supersedes the individual copyright notices attached to each repo. This is a fine line to walk and will likely not survive in a court of law. They are betting on deep lawyer pockets to see them through this, but are more likely than not to lose this battle. I suspect we will see how this plays out in the coming months. [1] https://www.microsoft.com/info/Cloud.html https://www.microsoft.com/info/Cloud.html [2] https://github.com/contact/dmca https://github.com/contact/dmca

lubujackson 5y ago
"Copilot is a commercial product, therefore, Github can only use code that the owners make available for commercial use." IANAL, but this doesn't sound quite right. There is a difference between "using" code (running it in a commercial product) and manipulating it as arbitrary data within a commercial product. It definitely can be a gray area, but let's say I use Amazon's service where I email a PDF to my Kindle - is it Amazon's responsibility to know the copyright status of the PDF, or mine? In both cases a commercial product is manipulating copywritten data for the benefit of a user.
- emrah 5y ago
  Even if it's legal for Copilot to do what it does, does it not violate GPL to take pieces of GPL'ed code and use them in a commercial product?
  - moralestapia 5y ago
    Yes.
  - dminor 5y ago
    The basis of the GPL is copyright, so what you're really asking is whether you can use part of a copyrighted work in another work without infringing. And the answer as always is "it depends".
    - danudey 5y ago
      If I use Copilot and it suggests a large block of GPL2'ed code for my project, which I then include, then that is a GPL2 license violation. Whether the GPL2 will hold up in court, or whether the courts will uphold this specific case (e.g. can you prove intent? Do you need to?), is a separate issue entirely. The next question is, can I use GPL'ed code in my product and then claim that it was injected by Copilot to avoid repercussions of my actions if caught?
      - zarzavat 5y ago
        > If I use Copilot and it suggests a large block of GPL2'ed code for my project But why would copilot do this? It's a language model not a database.
      - dminor 5y ago
        > If I use Copilot and it suggests a large block of GPL2'ed code for my project, which I then include, then that is a GPL2 license violation Not necessarily. Even 11k lines of copied code might fall under fair use, as Oracle recently discovered ;)
  - aj3 5y ago
    There are plenty of SAAS that use GPL'd code on the backend. That's fine.
  - electroly 5y ago
    The claim (which I'm not qualified to judge) is that this use falls under fair use. The point of fair use is to allow some use of copyrighted works even if the copyright owner does not license it to you and even if the owner is explicitly hostile towards your usage. If it is indeed fair use, then the license doesn't matter because that's not the thing that's allowing you to use the work.
- lelandbatey 5y ago
  Your example doesn't quite match what's happening in real life though. You're not "using copilot as a mechanism to ferry around code". Co-pilot is making recommendations for what code to use and then also giving that exact code (the text) to you. A more apt example would be if Amazon had some UI which said "What kind of book do you want to read on your kindle?", you click the button labeled "biography", and then Amazon sends your Kindle an AI generated book which is the biography of a famous person, and it just so happens that the "generated" book being sent to you is an exact copy of someone elses book (or incorporates exact copies of chapters/paragraphs of someone elses book), legal disclaimers and all.
- to11mtm 5y ago
  Maybe you're right, maybe you're wrong. I'll give the best example, the one task that off the top of my head that I would like some AI help with. I would really like to replicate the functionality of Java's SSLEngine, but for C#. If I used Co-Pilot to help, at best, I would need to pay for a legal team to do some form of 'clean room' review of whatever was generated to make sure it did not infringe on the OpenJDK code that is out there. At worst, I would be having to defend myself from Oracle's legal team -anyway-. And yeah, I'm assuming in this case that Copilot would be 'smart' enough to be able to make the right inferences of that java code and put it into workable C# construct. Stepping back, though, one could still ask the question; what's the risk of a Java developer accidentally getting some OpenJDK code a little too closely? There's an order of magnitude difference between even a smaller AGPL developer and Oracle. If Microsoft/GH was willing to go to bat and agree to pay for the defense of users of Copilot, I would be far less concerned with the implications of all of this.
  - bostonsre 5y ago
    > Stepping back, though, one could still ask the question; what's the risk of a Java developer accidentally getting some OpenJDK code a little too closely? There's an order of magnitude difference between even a smaller AGPL developer and Oracle. It would be extremely interesting to know how much accidental and non accidental code infringement happens and in what proportion of those cases go to the courts. I would guess that both cases happen utterly constantly and it is only a tiny minority of those cases where legal action is taken. If that's the case right now, then nothing has changed with this tool except the possibility of playing hot potato with liability when those few cases that do happen make it to courts. Even if the developer actually wrote the code that infringed, copilot could make a useful scapegoat and every case will have plausible deniability if copilot lacks really good explainability.
    - ElFitz 5y ago
      > every case will have plausible deniability if copilot lacks really good explainability. Out of pure curiosity, and please do take it as a candid question; do you intend to mean that "I don’t know how what I used works" is a good defence?
- nxpnsv 5y ago
  The proprietary model is a representation of lots of harvested open source code snippets. Without the model copilot is nothing. Arguably, the code snippets are part of the product....
leereeves 5y ago
Doesn't everyone who uploads code to a public repo give Microsoft/GitHub a license to (strike ~redistribute~) reproduce that code? If they didn't, GitHub itself would be violating copyright every time someone browsed the repo. And copilot appears to be a part of GitHub. https://copilot.github.com/ https://copilot.github.com/ So why wouldn't copilot itself be covered by that license? (Certainly people using copilot would not. Let the user beware.) Edit: downvoted to death but the top reply shows that it's true. An inconvenient truth, I suppose.
- emrah 5y ago
  I'm thinking it's not so much what is legal for Copilot to do with code chunks from GPL'ed code, but what it means for end users (i.e. developers at for-profit companies) to incorporate those chunks into commercial products
- moralestapia 5y ago
  No. Edit: Sorry downvoters, whether you like it or not, you don't understand the terminology. You're confusing reproduction with redistribution.
  - leereeves 5y ago
    I'm not a lawyer so it's entirely possible I used the wrong term. Thank you for clarifying below. Using the terms as you explained them below, I meant that Microsoft/GitHub has permission to reproduce the code so why wouldn't that extend to copilot?
    - moralestapia 5y ago
      Reproduction is enough to cover the first part of your use case. This is mentioned on Github's TOS. For the latter you would need redistribution as it is going into a different product, for which you claim ownership, and with possible modifications/adaptations (this would depend on the rights granted by the license). Nowhere on Github's TOS is the word or concept of redistribution referenced. So, the answer to your original question is "no". Edit: leereeves modified its comment after I wrote this, so it may not make much sense but you can figure out the point. Best!
maximilianroos 5y ago
> GitHub Copilot is indeed infringing copyright and not only in a grey zone, but in a very clear black and white fashion You seem to be confusing what you'd like the law to be with what the law is.
- drran 5y ago
  Here is an explanation of the law: https://www.copyright.gov/fair-use/more-info.html#:~:text=Fair%20use%20is%20a%20legal%20doctrine%20that%20promotes,unlicensed%20use%20of%20copyright-protected%20works%20in%20certain%20circumstances https://www.copyright.gov/fair-use/more-info.html#:~:text=Fa.... Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.
  - zarzavat 5y ago
    If your view of the law is correct then programming is illegal, because who among us has not read copyrighted code and used it to train our biological neural network? I suspect your view of the law is not correct.
    - drran 5y ago
      Your analogy looks alien to me. Can you show us the link between a human and a computer program? WTF is "biological neural network"? Can you quote a law?
    - krainboltgreene 5y ago
      Humans aren't robots and our laws aren't designed to equate the two, even if you assume that copilot is anything close to intelligence
j4yav 5y ago
The part that feels really obvious to me is that, if I made an AI that could generate music by looking through the entire (copyrighted) back catalog of the Beatles for example, and it would output music that I could control to be very much or even exactly like the original recordings, or I could accidentally do it, that it wouldn’t really be a way to launder the original licenses/copyright into the public domain. Or maybe it is, but if so it essentially means the end of licensing because it would be trivial to make an AI that can take an input and produce the same output. Or maybe even cp is good enough to strip the source of its original license in that case. Open source licenses are worth protecting or you break the cycle that helps more software be open.
- aj3 5y ago
  You're giving AI too much credit, it's just a tool, it does not have it's own intentions. I.e. if you buy a piano or a guitar, you could play and record copyrighted music on it. That's not piano's or guitar's fault though, it's yours.
  - deleted 5y ago
    [deleted]
  - sillysaurusx 5y ago
    It sounds like you might be the one giving it too much credit. AI is a glorified markov chain, which is essentially a compression algorithm. I agree that it can be an instrument (I've done it: https://soundcloud.com/theshawwn/sets/ai-generated-videogame-music https://soundcloud.com/theshawwn/sets/ai-generated-videogame...) but it's almost trivial to train a model that memorizes by rote. Suppose a model was trained solely on a single Beatles album. It could only spit out that album. That would be clear infringement, wouldn't it?
    - toxik 5y ago
      It’s funny that people say it’s a glorified Markov chain. No. It’s not. A Markov chain has some very specific properties that are absolutely not fulfilled by GPT-3 models. Just say “stochastic” if you want a buzzword. Stop appropriating Markov chains.
rlpb 5y ago
> Github (and by extension Microsoft) is gambling on the fact that their license agreement granting them a license to the code in exchange for access to the platform supersedes the individual copyright notices attached to each repo. The person who has the account on Github and uploads code to them rarely owns the copyright on all of the code, and therefore doesn't have the right to delegate to Github any further licensing permission.
- 542458 5y ago
  Legally I believe that’s the person who uploaded the code’s infringement rather than GitHub’s, so long as GitHub deals with takedown requests in a timely manner as per the DMCA. Furthermore, as described in the article, the legal precedent has been that you don’t actually need copyright to something to train a model on it. You may think that’s silly or inconsistent, but that’s how the legal precedent is.
  - rlpb 5y ago
    > that’s the person who uploaded the code’s infringement rather than GitHub’s That's not how it works. Anyone and everyone who distributes it is infringing and carries risk of enforcement action. That could also be someone further downstream. > Furthermore, as described in the article, the legal precedent has been that you don’t actually need copyright to something to train a model on it. I'm not commenting on this aspect.
    - 542458 5y ago
      That is absolutely how it works. https://www.eff.org/issues/dmca https://www.eff.org/issues/dmca “The DMCA “safe harbors” protect service providers from monetary liability based on the allegedly infringing activities of third parties.”
      - rlpb 5y ago
        That does nothing to derisk those further downstream of infringing content.
progval 5y ago
> Any open-source code available on Github is controlled by the copyright notice of the owner granting specific rights to users. and by the GitHub ToS: > You grant us and our legal successors the right to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case Your Content is something like music or video. https://docs.github.com/en/github/site-policy/github-terms-of-service#4-license-grant-to-us https://docs.github.com/en/github/site-policy/github-terms-o...
- TomVDB 5y ago
  Does the GitHub ToS matter when I upload code that was written by somebody who doesn’t use GitHub?
  - progval 5y ago
    Then you would be the one infringing their copyright, and they could probably sue you. Although I'm curious about what GitHub would do if the original author asked them to remove the work from Copilot. Retrain from scratch every month or so, to remove last month's DCMAed content?
    - jeltz 5y ago
      I doubt that as an interpretation that Github wants people to make since that means that tons of major projects need to be remove from Github. Basically all that are older than Github.
- GoOnThenDoTell 5y ago
  Not everyone who’s code ends up on GitHub has agreed to this set of terms
  - progval 5y ago
onion2k 5y ago
If Copilot is infringing copyright by reproducing small samples of the training data, and if we agree that that isn't acceptable, doesn't that effectively spell the end of the road for any and all AI generated content unless the developers explicitly stop their product reproducing data that matches the data it was trained on? That seems like it would have far reaching consequences for AI as an industry.
- hypertele-Xii 5y ago
  A pandora's box full of already-opened cans of worms -producing factories. The singularity is now?
DarkmSparks 5y ago
There were two parts to the argument which seem to hold water. 1. Any code generated by co pilot is likely to be agpl 2. since the authors of copilot used co pilot beta to make co pilot release copilot is very likely using agpl licenced code and therefore in breach of the agpl licence. so yep, article looks flawed.
lacker 5y ago
Github (and by extension Microsoft) is gambling on the fact that their license agreement granting them a license to the code This is incorrect. First of all, GitHub isn't even the people building the model. It's built by OpenAI, which has none of these licenses. Secondly, the model is not built purely from GitHub data. OpenAI is relying on fair use, not on a specific license.
wbl 5y ago
Copyright is not an indefinite ability to control a work. You can't for instance stop me from lending or leasing my rightfully acquired copies of your works, nor from making short quotations for criticism, nor teaching a class about it, etc. Particularly in the context of the occasional, unintentional reproduction of short snippets that likely need adaption to the rest of the code they are inserted into I suspect courts are unlikely to find more than de minimis, unactionable, infringement.
- Spivak 5y ago
  > You can't for instance stop me from lending or leasing my rightfully acquired copies… I mean in this specific example can’t I though? Yes the first sale doctrine applies to certain kinds of works but not every work and specifically not software. I absolutely can grant you a single non-transferable license to use my software.
- Uehreka 5y ago
  Right, but Copilot is not creating a piece of critical media about the code it is ingesting (IANAL, but my understanding is that this gets interpreted pretty strictly). I don’t think the normal Fair Use classes apply here. Even if the code isn’t being copied verbatim, it feels like the spirit of these licenses is being violated, although I don’t know if that’s enough to get anywhere in court. But if the code is in fact being copied (like that Quake example) then the license is definitely being violated. But I feel like there’s too much analysis in these comments of whether a current law is being broken, and not enough thought about what will happen if licenses like the GPL can no longer keep intellectual property free. Open source licenses are part of the foundation of this community, and we’ll be much worse off without them. We really need a way to prevent this kind of IP laundering, and if current laws won’t do it, then we need new ones.

lubujackson 5y ago

"Copilot is a commercial product, therefore, Github can only use code that the owners make available for commercial use." IANAL, but this doesn't sound quite right. There is a difference between "using" code (running it in a commercial product) and manipulating it as arbitrary data within a commercial product. It definitely can be a gray area, but let's say I use Amazon's service where I email a PDF to my Kindle - is it Amazon's responsibility to know the copyright status of the PDF, or mine? In both cases a commercial product is manipulating copywritten data for the benefit of a user.

emrah 5y ago
Even if it's legal for Copilot to do what it does, does it not violate GPL to take pieces of GPL'ed code and use them in a commercial product?
- moralestapia 5y ago
  Yes.
- dminor 5y ago
  The basis of the GPL is copyright, so what you're really asking is whether you can use part of a copyrighted work in another work without infringing. And the answer as always is "it depends".
  - danudey 5y ago
    If I use Copilot and it suggests a large block of GPL2'ed code for my project, which I then include, then that is a GPL2 license violation. Whether the GPL2 will hold up in court, or whether the courts will uphold this specific case (e.g. can you prove intent? Do you need to?), is a separate issue entirely. The next question is, can I use GPL'ed code in my product and then claim that it was injected by Copilot to avoid repercussions of my actions if caught?
    - zarzavat 5y ago
      > If I use Copilot and it suggests a large block of GPL2'ed code for my project But why would copilot do this? It's a language model not a database.
    - dminor 5y ago
      > If I use Copilot and it suggests a large block of GPL2'ed code for my project, which I then include, then that is a GPL2 license violation Not necessarily. Even 11k lines of copied code might fall under fair use, as Oracle recently discovered ;)
- aj3 5y ago
  There are plenty of SAAS that use GPL'd code on the backend. That's fine.
- electroly 5y ago
  The claim (which I'm not qualified to judge) is that this use falls under fair use. The point of fair use is to allow some use of copyrighted works even if the copyright owner does not license it to you and even if the owner is explicitly hostile towards your usage. If it is indeed fair use, then the license doesn't matter because that's not the thing that's allowing you to use the work.
lelandbatey 5y ago
Your example doesn't quite match what's happening in real life though. You're not "using copilot as a mechanism to ferry around code". Co-pilot is making recommendations for what code to use and then also giving that exact code (the text) to you. A more apt example would be if Amazon had some UI which said "What kind of book do you want to read on your kindle?", you click the button labeled "biography", and then Amazon sends your Kindle an AI generated book which is the biography of a famous person, and it just so happens that the "generated" book being sent to you is an exact copy of someone elses book (or incorporates exact copies of chapters/paragraphs of someone elses book), legal disclaimers and all.
to11mtm 5y ago
Maybe you're right, maybe you're wrong. I'll give the best example, the one task that off the top of my head that I would like some AI help with. I would really like to replicate the functionality of Java's SSLEngine, but for C#. If I used Co-Pilot to help, at best, I would need to pay for a legal team to do some form of 'clean room' review of whatever was generated to make sure it did not infringe on the OpenJDK code that is out there. At worst, I would be having to defend myself from Oracle's legal team -anyway-. And yeah, I'm assuming in this case that Copilot would be 'smart' enough to be able to make the right inferences of that java code and put it into workable C# construct. Stepping back, though, one could still ask the question; what's the risk of a Java developer accidentally getting some OpenJDK code a little too closely? There's an order of magnitude difference between even a smaller AGPL developer and Oracle. If Microsoft/GH was willing to go to bat and agree to pay for the defense of users of Copilot, I would be far less concerned with the implications of all of this.
- bostonsre 5y ago
  > Stepping back, though, one could still ask the question; what's the risk of a Java developer accidentally getting some OpenJDK code a little too closely? There's an order of magnitude difference between even a smaller AGPL developer and Oracle. It would be extremely interesting to know how much accidental and non accidental code infringement happens and in what proportion of those cases go to the courts. I would guess that both cases happen utterly constantly and it is only a tiny minority of those cases where legal action is taken. If that's the case right now, then nothing has changed with this tool except the possibility of playing hot potato with liability when those few cases that do happen make it to courts. Even if the developer actually wrote the code that infringed, copilot could make a useful scapegoat and every case will have plausible deniability if copilot lacks really good explainability.
  - ElFitz 5y ago
    > every case will have plausible deniability if copilot lacks really good explainability. Out of pure curiosity, and please do take it as a candid question; do you intend to mean that "I don’t know how what I used works" is a good defence?
nxpnsv 5y ago
The proprietary model is a representation of lots of harvested open source code snippets. Without the model copilot is nothing. Arguably, the code snippets are part of the product....

leereeves 5y ago

Doesn't everyone who uploads code to a public repo give Microsoft/GitHub a license to (strike ~redistribute~) reproduce that code? If they didn't, GitHub itself would be violating copyright every time someone browsed the repo. And copilot appears to be a part of GitHub. https://copilot.github.com/ https://copilot.github.com/ So why wouldn't copilot itself be covered by that license? (Certainly people using copilot would not. Let the user beware.) Edit: downvoted to death but the top reply shows that it's true. An inconvenient truth, I suppose.

emrah 5y ago
I'm thinking it's not so much what is legal for Copilot to do with code chunks from GPL'ed code, but what it means for end users (i.e. developers at for-profit companies) to incorporate those chunks into commercial products
moralestapia 5y ago
No. Edit: Sorry downvoters, whether you like it or not, you don't understand the terminology. You're confusing reproduction with redistribution.
- leereeves 5y ago
  I'm not a lawyer so it's entirely possible I used the wrong term. Thank you for clarifying below. Using the terms as you explained them below, I meant that Microsoft/GitHub has permission to reproduce the code so why wouldn't that extend to copilot?
  - moralestapia 5y ago
    Reproduction is enough to cover the first part of your use case. This is mentioned on Github's TOS. For the latter you would need redistribution as it is going into a different product, for which you claim ownership, and with possible modifications/adaptations (this would depend on the rights granted by the license). Nowhere on Github's TOS is the word or concept of redistribution referenced. So, the answer to your original question is "no". Edit: leereeves modified its comment after I wrote this, so it may not make much sense but you can figure out the point. Best!

maximilianroos 5y ago

> GitHub Copilot is indeed infringing copyright and not only in a grey zone, but in a very clear black and white fashion You seem to be confusing what you'd like the law to be with what the law is.

drran 5y ago
Here is an explanation of the law: https://www.copyright.gov/fair-use/more-info.html#:~:text=Fair%20use%20is%20a%20legal%20doctrine%20that%20promotes,unlicensed%20use%20of%20copyright-protected%20works%20in%20certain%20circumstances https://www.copyright.gov/fair-use/more-info.html#:~:text=Fa.... Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.
- zarzavat 5y ago
  If your view of the law is correct then programming is illegal, because who among us has not read copyrighted code and used it to train our biological neural network? I suspect your view of the law is not correct.
  - drran 5y ago
    Your analogy looks alien to me. Can you show us the link between a human and a computer program? WTF is "biological neural network"? Can you quote a law?
  - krainboltgreene 5y ago
    Humans aren't robots and our laws aren't designed to equate the two, even if you assume that copilot is anything close to intelligence

j4yav 5y ago

The part that feels really obvious to me is that, if I made an AI that could generate music by looking through the entire (copyrighted) back catalog of the Beatles for example, and it would output music that I could control to be very much or even exactly like the original recordings, or I could accidentally do it, that it wouldn’t really be a way to launder the original licenses/copyright into the public domain. Or maybe it is, but if so it essentially means the end of licensing because it would be trivial to make an AI that can take an input and produce the same output. Or maybe even cp is good enough to strip the source of its original license in that case. Open source licenses are worth protecting or you break the cycle that helps more software be open.

aj3 5y ago
You're giving AI too much credit, it's just a tool, it does not have it's own intentions. I.e. if you buy a piano or a guitar, you could play and record copyrighted music on it. That's not piano's or guitar's fault though, it's yours.
- deleted 5y ago
  [deleted]
- sillysaurusx 5y ago
  It sounds like you might be the one giving it too much credit. AI is a glorified markov chain, which is essentially a compression algorithm. I agree that it can be an instrument (I've done it: https://soundcloud.com/theshawwn/sets/ai-generated-videogame-music https://soundcloud.com/theshawwn/sets/ai-generated-videogame...) but it's almost trivial to train a model that memorizes by rote. Suppose a model was trained solely on a single Beatles album. It could only spit out that album. That would be clear infringement, wouldn't it?
  - toxik 5y ago
    It’s funny that people say it’s a glorified Markov chain. No. It’s not. A Markov chain has some very specific properties that are absolutely not fulfilled by GPT-3 models. Just say “stochastic” if you want a buzzword. Stop appropriating Markov chains.

rlpb 5y ago

> Github (and by extension Microsoft) is gambling on the fact that their license agreement granting them a license to the code in exchange for access to the platform supersedes the individual copyright notices attached to each repo. The person who has the account on Github and uploads code to them rarely owns the copyright on all of the code, and therefore doesn't have the right to delegate to Github any further licensing permission.

542458 5y ago
Legally I believe that’s the person who uploaded the code’s infringement rather than GitHub’s, so long as GitHub deals with takedown requests in a timely manner as per the DMCA. Furthermore, as described in the article, the legal precedent has been that you don’t actually need copyright to something to train a model on it. You may think that’s silly or inconsistent, but that’s how the legal precedent is.
- rlpb 5y ago
  > that’s the person who uploaded the code’s infringement rather than GitHub’s That's not how it works. Anyone and everyone who distributes it is infringing and carries risk of enforcement action. That could also be someone further downstream. > Furthermore, as described in the article, the legal precedent has been that you don’t actually need copyright to something to train a model on it. I'm not commenting on this aspect.
  - 542458 5y ago
    That is absolutely how it works. https://www.eff.org/issues/dmca https://www.eff.org/issues/dmca “The DMCA “safe harbors” protect service providers from monetary liability based on the allegedly infringing activities of third parties.”
    - rlpb 5y ago
      That does nothing to derisk those further downstream of infringing content.

progval 5y ago

> Any open-source code available on Github is controlled by the copyright notice of the owner granting specific rights to users. and by the GitHub ToS: > You grant us and our legal successors the right to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case Your Content is something like music or video. https://docs.github.com/en/github/site-policy/github-terms-of-service#4-license-grant-to-us https://docs.github.com/en/github/site-policy/github-terms-o...

TomVDB 5y ago
Does the GitHub ToS matter when I upload code that was written by somebody who doesn’t use GitHub?
- progval 5y ago
  Then you would be the one infringing their copyright, and they could probably sue you. Although I'm curious about what GitHub would do if the original author asked them to remove the work from Copilot. Retrain from scratch every month or so, to remove last month's DCMAed content?
  - jeltz 5y ago
    I doubt that as an interpretation that Github wants people to make since that means that tons of major projects need to be remove from Github. Basically all that are older than Github.
GoOnThenDoTell 5y ago
Not everyone who’s code ends up on GitHub has agreed to this set of terms
- progval 5y ago

onion2k 5y ago

If Copilot is infringing copyright by reproducing small samples of the training data, and if we agree that that isn't acceptable, doesn't that effectively spell the end of the road for any and all AI generated content unless the developers explicitly stop their product reproducing data that matches the data it was trained on? That seems like it would have far reaching consequences for AI as an industry.

hypertele-Xii 5y ago
A pandora's box full of already-opened cans of worms -producing factories. The singularity is now?

DarkmSparks 5y ago

There were two parts to the argument which seem to hold water. 1. Any code generated by co pilot is likely to be agpl 2. since the authors of copilot used co pilot beta to make co pilot release copilot is very likely using agpl licenced code and therefore in breach of the agpl licence. so yep, article looks flawed.

lacker 5y ago

Github (and by extension Microsoft) is gambling on the fact that their license agreement granting them a license to the code This is incorrect. First of all, GitHub isn't even the people building the model. It's built by OpenAI, which has none of these licenses. Secondly, the model is not built purely from GitHub data. OpenAI is relying on fair use, not on a specific license.

wbl 5y ago

Copyright is not an indefinite ability to control a work. You can't for instance stop me from lending or leasing my rightfully acquired copies of your works, nor from making short quotations for criticism, nor teaching a class about it, etc. Particularly in the context of the occasional, unintentional reproduction of short snippets that likely need adaption to the rest of the code they are inserted into I suspect courts are unlikely to find more than de minimis, unactionable, infringement.

Spivak 5y ago
> You can't for instance stop me from lending or leasing my rightfully acquired copies… I mean in this specific example can’t I though? Yes the first sale doctrine applies to certain kinds of works but not every work and specifically not software. I absolutely can grant you a single non-transferable license to use my software.
Uehreka 5y ago
Right, but Copilot is not creating a piece of critical media about the code it is ingesting (IANAL, but my understanding is that this gets interpreted pretty strictly). I don’t think the normal Fair Use classes apply here. Even if the code isn’t being copied verbatim, it feels like the spirit of these licenses is being violated, although I don’t know if that’s enough to get anywhere in court. But if the code is in fact being copied (like that Quake example) then the license is definitely being violated. But I feel like there’s too much analysis in these comments of whether a current law is being broken, and not enough thought about what will happen if licenses like the GPL can no longer keep intellectual property free. Open source licenses are part of the foundation of this community, and we’ll be much worse off without them. We really need a way to prevent this kind of IP laundering, and if current laws won’t do it, then we need new ones.