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There's a decent bit of caselaw indicating that computers reading and using a copyrighted work simply "don't count" in terms of copyright infringement -- only h

There's a decent bit of caselaw indicating that computers reading and using a copyrighted work simply "don't count" in terms of copyright infringement -- only humans can infringe copyright. This article[0] does a pretty good job of summarizing the rationale that the courts have provided. My (non-lawyer) take is that GitHub is pushing this just half a step farther -- if computers can consume copyrighted material, and use it to answer questions like "was this essay plagiarized", then in GitHub's view they can also use it to train an AI model (even if it occasionally spits back out snippets of the copyrighted training data). Microsoft has enough lawyers on staff that I'm sure they have analyzed this in depth and believe they at least have a defensible position. [0]: https://slate.com/technology/2016/08/in-copyright-law-computers-and-robots-dont-count.html https://slate.com/technology/2016/08/in-copyright-law-comput...

_Understated_ 5y ago
I don't doubt that an army of lawyers has poured over this but they have size on their side: the cost of litigation vs potential revenue will be a massive factor. Edit: > There's a decent bit of caselaw indicating that computers reading and using a copyrighted work simply "don't count" in terms of copyright infringement. That means their computer can read any code it wants, do whatever it wants with the code, then they can monetise that by giving YOU the code. Would they then be indemnified by saying "no Microsoft human read or used this code"? However, if you then use the code and look at it, does that make you liable?
- schneidmaster 5y ago
  Again, not a lawyer, just a guy who likes reading this stuff. The devil is usually in the details of copyright cases. The Turnitin case hinged substantially on whether Turnitin's use of copyrighted essays was "fair use". There are four factors[0] which determine fair use; the two more relevant factors here are "the purpose and character of your use" and "the effect of the use upon the potential market". The court found that Turnitin's use was highly "transformative" (meaning they didn't just e.g. republish essays; they transformed the copyrighted material into a black-box plagiarism detection service) and also found that Turnitin's use had minimal effect on the market (this is where "computers don't count" comes in -- computers reading copyrighted material don't affect the market much because a computer wasn't ever going to buy an essay). I would be shocked if GitHub's lawyers didn't argue that using copyrighted material as training data for an AI model is highly transformative. There may be snippets available from the original but they are completely divorced from their original context and virtually unrecognizable unless they happen to be famous like the Quake inverse square root algorithm. And I think GitHub's lawyers would also argue that Copilot's use does not affect the _original_ market -- e.g. it does not hurt Quake's sales if their algorithm is anonymously used in a probably totally unrelated codebase. Your counterexample would probably fail both tests -- it's not transformative use if your software hands out complete pieces of copyrighted software, and it would definitely affect the market if Copilot gave me the entire source code of Quake for my own game. [0]: https://fairuse.stanford.edu/overview/fair-use/four-factors https://fairuse.stanford.edu/overview/fair-use/four-factors
  - _Understated_ 5y ago
    I thought I understood fair use but turns out I was wrong... That being said, creating a transformative work from something else is considered fair use. So, for example, if I read a whole bunch of books and then, heavily influenced by them, create my own, similar book, that would be fair use I suppose... that makes sense. But, where does the derivative works come in? Where do you draw the line? If I am heavily influenced by billions of lines of other people's GPL code (ala Copilot!), then I create my own tool from it and keep my code hidden, does that not mean I am abusing the GPL license?
    - schneidmaster 5y ago
      That's what I meant by the devil being in the details -- these gray area questions hinge on the specific facts. Lawyers on both sides will argue which factors apply based on past caselaw and available evidence, and the court renders a decision. For example, from the Stanford webpage I previously linked: "the creation of a Harry Potter encyclopedia was determined to be “slightly transformative” (because it made the Harry Potter terms and lexicons available in one volume), but this transformative quality was not enough to justify a fair use defense in light of the extensive verbatim use of text from the Harry Potter books". So you might be okay creating a Harry Potter encyclopedia in general, but not if your definitions are copy/pasted from the books, but you might still be okay quoting key lines from the books if the quotes are a small portion of your encyclopedia. The caselaw just doesn't lend itself to firm lines in the sand.
    - saurik 5y ago
      If you read a bunch of books and then create a similar book, that isn't transformative; transformative is like, you read a bunch of books and then create a machine translation service. The point of transformative is like "isn't going to conflict with the market or compete in any way with the original thing".
blendergeek 5y ago
> There's a decent bit of caselaw indicating that computers reading and using a copyrighted work simply "don't count" in terms of copyright infringement -- only humans can infringe copyright. I have read variations of "computers don't commit copyright" more times than I can count in the past few days. How is Copilot different from a compiler? (Please give me the legal answer, not the technical answer. I now the difference between Copilot and a compiler, technically.) Isn't a compiler a computer program? How is its output covered by copyright? Am I fundamentally misunderstanding something here?
- someone7x 5y ago
  You just blew my mind with that analogy. I can only imagine some hair-splitting logic to rationalize a distinction.
  - ghoward 5y ago
    The analogy goes even further if you consider compiler optimizations: https://gavinhoward.com/2021/07/poisoning-github-copilot-and-machine-learning/ https://gavinhoward.com/2021/07/poisoning-github-copilot-and... .
- deleted 5y ago
  [deleted]
- jeremyjh 5y ago
  What if I made a few tweaks to Copilot so that it is very likely to reproduce large chunks of verbatim code that I would like to use without attribution, such as the Linux kernel. Do you really think you can write a computer program that magically "launders" IP? A compiler is run on original sources. I don't see any analogy here at all.
  - ghoward 5y ago
    * They both process source code as input. * They both produce software as output. * They both transform their input. * They both can combine different works to create a derivative work of each work. (Compilers do this with optimizations, especially inlining with link-time optimization.) They really do the same things, and yet, we say that the output of compilers is still under the license that the source code had. Why not Copilot?
mysterydip 5y ago
Makes me wonder what would happen if a similar thing was done with books. If I train an AI on all the texts of Tom Clancy, or Stephen King, or every Star Wars novel, and the books it generates every so often produce paragraphs verbatim from one of those sources, would copyright owners be up in arms? What would the distinction be between the code case and the text case?
- xsmasher 5y ago
  This will surely happen within the next few years; but if the "new work" contains a full paragraph from an existing novel the copyright hammer would come down hard. Maybe it needs to be paired with another network / hunk of code that checks for verbatim copying?
- shagie 5y ago
  I am not a lawyer. I do photography and have a more than passing interest in copyright as it applies to the photographs I take and the material I photograph. Copyright on art gets more interesting / fuzzier. The key part is substantial similarity - https://en.wikipedia.org/wiki/Substantial_similarity https://en.wikipedia.org/wiki/Substantial_similarity and https://www.photoattorney.com/copyright-infringement-for-substantially-similar-works/ https://www.photoattorney.com/copyright-infringement-for-sub... Rather than text, my AI copyright hypothetical... consider a model created based on sunset photographs. You take a regular photograph, pass it through the model, and it transforms it into a sunset. The model was trained on copyrighted works but the model is considered fair use. Now, I go and take a photograph from some location during the day and then pass it through the transformer and get a sunset. Yea me! Unbeknownst to me, that location is a favorite location for photographers and there were sunsets from that location used in the training data. My photograph, transformed to look like a sunset is now similar to one of them in the training data. Is my transformed photograph a derivative work of the one in the training data to which it bears similarity to? How would a judge feel about it? How does the photographer who's photograph was used in the training data feel?
  - TaylorAlexander 5y ago
    What would be interesting in that case would be how the transformed image would look if photos from that location were removed from the training set. That would help reveal whether it was just copying what it had seen or it actually remembered what sunsets looked like and transformed the image using its memory of sunsets in general.
LocalH 5y ago
That’s funny, because the bedrock of copyright - insofar as software is concerned - is entirely predicated on the idea that a computer copying code into RAM to execute it is indeed a copyright violation outside of a license to do so.

_Understated_ 5y ago

I don't doubt that an army of lawyers has poured over this but they have size on their side: the cost of litigation vs potential revenue will be a massive factor. Edit: > There's a decent bit of caselaw indicating that computers reading and using a copyrighted work simply "don't count" in terms of copyright infringement. That means their computer can read any code it wants, do whatever it wants with the code, then they can monetise that by giving YOU the code. Would they then be indemnified by saying "no Microsoft human read or used this code"? However, if you then use the code and look at it, does that make you liable?

schneidmaster 5y ago
Again, not a lawyer, just a guy who likes reading this stuff. The devil is usually in the details of copyright cases. The Turnitin case hinged substantially on whether Turnitin's use of copyrighted essays was "fair use". There are four factors[0] which determine fair use; the two more relevant factors here are "the purpose and character of your use" and "the effect of the use upon the potential market". The court found that Turnitin's use was highly "transformative" (meaning they didn't just e.g. republish essays; they transformed the copyrighted material into a black-box plagiarism detection service) and also found that Turnitin's use had minimal effect on the market (this is where "computers don't count" comes in -- computers reading copyrighted material don't affect the market much because a computer wasn't ever going to buy an essay). I would be shocked if GitHub's lawyers didn't argue that using copyrighted material as training data for an AI model is highly transformative. There may be snippets available from the original but they are completely divorced from their original context and virtually unrecognizable unless they happen to be famous like the Quake inverse square root algorithm. And I think GitHub's lawyers would also argue that Copilot's use does not affect the _original_ market -- e.g. it does not hurt Quake's sales if their algorithm is anonymously used in a probably totally unrelated codebase. Your counterexample would probably fail both tests -- it's not transformative use if your software hands out complete pieces of copyrighted software, and it would definitely affect the market if Copilot gave me the entire source code of Quake for my own game. [0]: https://fairuse.stanford.edu/overview/fair-use/four-factors https://fairuse.stanford.edu/overview/fair-use/four-factors
- _Understated_ 5y ago
  I thought I understood fair use but turns out I was wrong... That being said, creating a transformative work from something else is considered fair use. So, for example, if I read a whole bunch of books and then, heavily influenced by them, create my own, similar book, that would be fair use I suppose... that makes sense. But, where does the derivative works come in? Where do you draw the line? If I am heavily influenced by billions of lines of other people's GPL code (ala Copilot!), then I create my own tool from it and keep my code hidden, does that not mean I am abusing the GPL license?
  - schneidmaster 5y ago
    That's what I meant by the devil being in the details -- these gray area questions hinge on the specific facts. Lawyers on both sides will argue which factors apply based on past caselaw and available evidence, and the court renders a decision. For example, from the Stanford webpage I previously linked: "the creation of a Harry Potter encyclopedia was determined to be “slightly transformative” (because it made the Harry Potter terms and lexicons available in one volume), but this transformative quality was not enough to justify a fair use defense in light of the extensive verbatim use of text from the Harry Potter books". So you might be okay creating a Harry Potter encyclopedia in general, but not if your definitions are copy/pasted from the books, but you might still be okay quoting key lines from the books if the quotes are a small portion of your encyclopedia. The caselaw just doesn't lend itself to firm lines in the sand.
  - saurik 5y ago
    If you read a bunch of books and then create a similar book, that isn't transformative; transformative is like, you read a bunch of books and then create a machine translation service. The point of transformative is like "isn't going to conflict with the market or compete in any way with the original thing".

blendergeek 5y ago

> There's a decent bit of caselaw indicating that computers reading and using a copyrighted work simply "don't count" in terms of copyright infringement -- only humans can infringe copyright. I have read variations of "computers don't commit copyright" more times than I can count in the past few days. How is Copilot different from a compiler? (Please give me the legal answer, not the technical answer. I now the difference between Copilot and a compiler, technically.) Isn't a compiler a computer program? How is its output covered by copyright? Am I fundamentally misunderstanding something here?

someone7x 5y ago
You just blew my mind with that analogy. I can only imagine some hair-splitting logic to rationalize a distinction.
- ghoward 5y ago
  The analogy goes even further if you consider compiler optimizations: https://gavinhoward.com/2021/07/poisoning-github-copilot-and-machine-learning/ https://gavinhoward.com/2021/07/poisoning-github-copilot-and... .
deleted 5y ago
[deleted]
jeremyjh 5y ago
What if I made a few tweaks to Copilot so that it is very likely to reproduce large chunks of verbatim code that I would like to use without attribution, such as the Linux kernel. Do you really think you can write a computer program that magically "launders" IP? A compiler is run on original sources. I don't see any analogy here at all.
- ghoward 5y ago
  * They both process source code as input. * They both produce software as output. * They both transform their input. * They both can combine different works to create a derivative work of each work. (Compilers do this with optimizations, especially inlining with link-time optimization.) They really do the same things, and yet, we say that the output of compilers is still under the license that the source code had. Why not Copilot?

mysterydip 5y ago

Makes me wonder what would happen if a similar thing was done with books. If I train an AI on all the texts of Tom Clancy, or Stephen King, or every Star Wars novel, and the books it generates every so often produce paragraphs verbatim from one of those sources, would copyright owners be up in arms? What would the distinction be between the code case and the text case?

xsmasher 5y ago
This will surely happen within the next few years; but if the "new work" contains a full paragraph from an existing novel the copyright hammer would come down hard. Maybe it needs to be paired with another network / hunk of code that checks for verbatim copying?
shagie 5y ago
I am not a lawyer. I do photography and have a more than passing interest in copyright as it applies to the photographs I take and the material I photograph. Copyright on art gets more interesting / fuzzier. The key part is substantial similarity - https://en.wikipedia.org/wiki/Substantial_similarity https://en.wikipedia.org/wiki/Substantial_similarity and https://www.photoattorney.com/copyright-infringement-for-substantially-similar-works/ https://www.photoattorney.com/copyright-infringement-for-sub... Rather than text, my AI copyright hypothetical... consider a model created based on sunset photographs. You take a regular photograph, pass it through the model, and it transforms it into a sunset. The model was trained on copyrighted works but the model is considered fair use. Now, I go and take a photograph from some location during the day and then pass it through the transformer and get a sunset. Yea me! Unbeknownst to me, that location is a favorite location for photographers and there were sunsets from that location used in the training data. My photograph, transformed to look like a sunset is now similar to one of them in the training data. Is my transformed photograph a derivative work of the one in the training data to which it bears similarity to? How would a judge feel about it? How does the photographer who's photograph was used in the training data feel?
- TaylorAlexander 5y ago
  What would be interesting in that case would be how the transformed image would look if photos from that location were removed from the training set. That would help reveal whether it was just copying what it had seen or it actually remembered what sunsets looked like and transformed the image using its memory of sunsets in general.

LocalH 5y ago

That’s funny, because the bedrock of copyright - insofar as software is concerned - is entirely predicated on the idea that a computer copying code into RAM to execute it is indeed a copyright violation outside of a license to do so.