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> ... if source code under the license is used as all or part of the inputs to an algorithm, whether all of the source code or partially, then the license terms

> ... if source code under the license is used as all or part of the inputs to an algorithm, whether all of the source code or partially, then the license terms must be attached to the output. You're not getting it. If Copilot isn't currently infringing copyright then adding such a clause won't matter. Such a clause would only hold weight when copyright applies. On the other hand, if copyright does apply, then you don't need such a clause because the activity is already a violation of the vast majority of licenses. (It even violates extremely permissive ones because it effectively strips out the license notice.) The GPL works specifically because copyright applies to the usecase in question. It simply specifies various requirements that you must meet in order to license the code given that copyright applies. In short, you can't just put a clause into a license saying, effectively, "and also, this license confers superpowers which make it so that my copyright applies in additional situations where it otherwise wouldn't!".

ghoward 5y ago
Ah, I see. I argue that, even if training a dataset is fair use, distributing the result is copyright infringement. I would want my license to make that part clearer.
- d110af5ccf 5y ago
  > even if training a dataset is fair use, distributing the result is copyright infringement I would be inclined to agree that the current situation (ie reproducing training examples verbatim) violates copyright. On the other hand, I'm not so sure that a trained model does (or even should) be subject to the copyright of the inputs. Of course I acknowledge that the latter view is controversial and also that such issues are so new that they haven't had a chance to be meaningfully addressed by either the courts or the legislature yet. As an example of a similar situation, see (https://www.thiswaifudoesnotexist.net/ https://www.thiswaifudoesnotexist.net/) which was trained entirely on copyrighted artwork. Note that there are at least three distinct issues here - training the model, distributing the model itself, and distributing the output of the model. > I would want my license to make that part clearer. But again, GitHub's argument here is that the license is completely irrelevant because it doesn't apply in the first place. Thus they won't care one bit about any clarifications you make one way or the other.
  - ghoward 5y ago
    You said that you're "not so sure that a trained model does (or even should) be subject to the copyright of the inputs." You missed my point. I'm not saying that the model is subject to the copyright of the inputs; I'm saying that the model's outputs are, which is entirely different. We say that the output of a compiler is still subject to the copyright of the inputs, so why not this?
    - d110af5ccf 5y ago
      I misspoke. (Err mistyped?) I suspect there will often be a stronger case to be made for the model itself falling under copyright than what it outputs. It's up to the courts and the legislature in the end though, so who knows. Anyway, by providing public access to this thing I infer GitHub to be taking the position that copyright doesn't apply to the output. (And I suspect they are wrong, in particular because of the verbatim code samples people have managed to coax out of it.)
- mr_toad 5y ago
  > even if training a dataset is fair use, distributing the result is copyright infringement That seems an unlikely legal argument. It would defeat the point of fair use if you couldn’t distribute the result. And no copyright license can override copyright law. Licenses can only grant rights, they can’t take them away.
hnfong 5y ago
I think the GP's "license" would still be effective, although it would not be "open source" per the OSI definition. Imagine this simplified scenario first: if I published a source file publicly without any licensing or explanation except a standard copyright notice - "Copyright (C) 2021 MY NAME, all rights reserved", do you think a random person/company can take that code and integrate it into a commercial product? I would argue not (in general). Copyrights law as it is, does not permit a user who has access to a copy to do whatever they want with that copy (esp. if it involves more copying). OSS licenses do give you much freedom as long as you don't modify it, and that's why we have impression that we can do whatever with publicized source code. However, if we think about other types of copyrighted work, say movies for example, streaming services can "rent" you a movie multiple times even though you've paid to download the content previously. What are you paying for the second time you rent? Another example - some photographers may allow you to freely browse their works, but they can still make you pay money if you want to use their photo in your commercial product. So why wouldn't copyright restrict usage of source code in similar situations? The GP only needs to add a condition to the license to restrict how users can use it. It will no longer be OSS, but as long as it's his work, I don't see why in principle it shouldn't work. (In practice, I don't think it will make much difference -- I think your argument is still somewhat compelling, and some people will probably take your position. Conservative corporate lawyers aimed at reducing legal risk would disagree, so it's basically a matter of how much legal risk one is ready to take. Also, for an author trying to do this, note that suing Microsoft in these cases would be expensive, since they will likely fight back given that they spent so much money trying to do this, and the outcome will be uncertain. If really tested in court, given the result of the Oracle v Google case, if the US Supreme Court is impressed by the social/economic benefits that Android brings, I'm pretty sure the justices will be even more impressed by this intelligent code generation thingy, and might just grant this thing a fair use.)
- b3morales 5y ago
  Your summary is generally correct, and I certainly agree with the other commenter's position on their work. But I think you're still missing the point. Copyright is the mechanism that allows you to prevent copying, but GitHub's claim is that copyright is irrelevant to Copilot's input. I have a nice strong lock on my door. GitHub (asserts that it) can enter my home through the window. Adding another deadbolt to the door does not help.

ghoward 5y ago

Ah, I see. I argue that, even if training a dataset is fair use, distributing the result is copyright infringement. I would want my license to make that part clearer.

d110af5ccf 5y ago
> even if training a dataset is fair use, distributing the result is copyright infringement I would be inclined to agree that the current situation (ie reproducing training examples verbatim) violates copyright. On the other hand, I'm not so sure that a trained model does (or even should) be subject to the copyright of the inputs. Of course I acknowledge that the latter view is controversial and also that such issues are so new that they haven't had a chance to be meaningfully addressed by either the courts or the legislature yet. As an example of a similar situation, see (https://www.thiswaifudoesnotexist.net/ https://www.thiswaifudoesnotexist.net/) which was trained entirely on copyrighted artwork. Note that there are at least three distinct issues here - training the model, distributing the model itself, and distributing the output of the model. > I would want my license to make that part clearer. But again, GitHub's argument here is that the license is completely irrelevant because it doesn't apply in the first place. Thus they won't care one bit about any clarifications you make one way or the other.
- ghoward 5y ago
  You said that you're "not so sure that a trained model does (or even should) be subject to the copyright of the inputs." You missed my point. I'm not saying that the model is subject to the copyright of the inputs; I'm saying that the model's outputs are, which is entirely different. We say that the output of a compiler is still subject to the copyright of the inputs, so why not this?
  - d110af5ccf 5y ago
    I misspoke. (Err mistyped?) I suspect there will often be a stronger case to be made for the model itself falling under copyright than what it outputs. It's up to the courts and the legislature in the end though, so who knows. Anyway, by providing public access to this thing I infer GitHub to be taking the position that copyright doesn't apply to the output. (And I suspect they are wrong, in particular because of the verbatim code samples people have managed to coax out of it.)
mr_toad 5y ago
> even if training a dataset is fair use, distributing the result is copyright infringement That seems an unlikely legal argument. It would defeat the point of fair use if you couldn’t distribute the result. And no copyright license can override copyright law. Licenses can only grant rights, they can’t take them away.

hnfong 5y ago

I think the GP's "license" would still be effective, although it would not be "open source" per the OSI definition. Imagine this simplified scenario first: if I published a source file publicly without any licensing or explanation except a standard copyright notice - "Copyright (C) 2021 MY NAME, all rights reserved", do you think a random person/company can take that code and integrate it into a commercial product? I would argue not (in general). Copyrights law as it is, does not permit a user who has access to a copy to do whatever they want with that copy (esp. if it involves more copying). OSS licenses do give you much freedom as long as you don't modify it, and that's why we have impression that we can do whatever with publicized source code. However, if we think about other types of copyrighted work, say movies for example, streaming services can "rent" you a movie multiple times even though you've paid to download the content previously. What are you paying for the second time you rent? Another example - some photographers may allow you to freely browse their works, but they can still make you pay money if you want to use their photo in your commercial product. So why wouldn't copyright restrict usage of source code in similar situations? The GP only needs to add a condition to the license to restrict how users can use it. It will no longer be OSS, but as long as it's his work, I don't see why in principle it shouldn't work. (In practice, I don't think it will make much difference -- I think your argument is still somewhat compelling, and some people will probably take your position. Conservative corporate lawyers aimed at reducing legal risk would disagree, so it's basically a matter of how much legal risk one is ready to take. Also, for an author trying to do this, note that suing Microsoft in these cases would be expensive, since they will likely fight back given that they spent so much money trying to do this, and the outcome will be uncertain. If really tested in court, given the result of the Oracle v Google case, if the US Supreme Court is impressed by the social/economic benefits that Android brings, I'm pretty sure the justices will be even more impressed by this intelligent code generation thingy, and might just grant this thing a fair use.)

b3morales 5y ago
Your summary is generally correct, and I certainly agree with the other commenter's position on their work. But I think you're still missing the point. Copyright is the mechanism that allows you to prevent copying, but GitHub's claim is that copyright is irrelevant to Copilot's input. I have a nice strong lock on my door. GitHub (asserts that it) can enter my home through the window. Adding another deadbolt to the door does not help.