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No, see Authors Guild v. Google. Even without a license or permission, fair use permits the mass scanning of books, the storage of the content of those books, a

No, see Authors Guild v. Google. Even without a license or permission, fair use permits the mass scanning of books, the storage of the content of those books, and rendering verbatim snippets of those books. The Google Books site is not a derivative work of the millions of authors they copied from, and if they did copy any coincidentally GPL, AGPL, or creative commons copyleft work, the fair use exception applies before we reach the question of whether Google is obligated to provide anything beyond what it is doing. By comparison, Copilot is even more obviously fair use. I've had this conversation quite a few times lately, and the non-obvious thing for many developers is that fair use is an exception to copyright itself. A license is a grant of permission (with some terms) to use a copyrighted work. This snippet from the Linux kernel doesn't make my comment here or the website Hacker News a GPL derivative work: ret = vmbus_sendpacket(dev->channel, init_pkt, sizeof(struct nvsp_message), (unsigned long)init_pkt, VM_PKT_DATA_INBAND, VMBUS_DATA_PACKET_FLAG_COMPLETION_REQUESTED); This snippet from an AGPL licensed project, Bitwarden, does not compel dang or pg to release the Hacker News source code: await _sendRepository.ReplaceAsync(send); await _pushService.PushSyncSendUpdateAsync(send); return (await _sendFileStorageService.GetSendFileDownloadUrlAsync(send, fileId), false, false); Fair use is an exception to copyright itself. A license cannot remove your right to fair use. The Free Software Foundation agrees (https://www.gnu.org/licenses/gpl-faq.en.html#GPLFairUse https://www.gnu.org/licenses/gpl-faq.en.html#GPLFairUse) > Yes, you do. “Fair use” is use that is allowed without any special permission. Since you don't need the developers' permission for such use, you can do it regardless of what the developers said about it—in the license or elsewhere, whether that license be the GNU GPL or any other free software license. > Note, however, that there is no world-wide principle of fair use; what kinds of use are considered “fair” varies from country to country. (And even this verbatim copying from FSF.org for the purpose of education is... Fair use!)

shakna 5y ago
> No, see Authors Guild v. Google. That case required that the output be transformative, in that "words in books are being used in a way they have not been used before". Copilot only fits the transformative aspect if it is not directly reciting code, that already exists in the form that it is redistributing. So long as it does so, it fails to meet the criteria.
- tedunangst 5y ago
  It's not possible to get copilot to output a transformed version of the input?
  - shakna 5y ago
    Transformed output _may_ fall under fair use. However - Copilot directly recites code. That is _very unlikely_ to fall under fair use. Redistributing the exact same code, in the same form, for the same purpose, probably means that Copilot, and thus the people responsible for it, are infringing.
    - nonfamous 5y ago
      > However - Copilot directly recites code. You make that statement as an absolute, but in the interests of clarity, all evidence so far shows that it directly recites code very rarely indeed. Even the Quake example had to be prompted by the specific variable names used in the original code. In practice, the output code is heavily influenced by your own context — the comments you include, the variable names you use, even the name of the file you are editing — and with use it’s obvious that the code is almost certainly not a direct recitation of any existing code.
      - shakna 5y ago
        > all evidence so far shows that it directly recites code very rarely indeed. _Once_ is enough for it to be infringing. The law is not very forgiving when you try and handwave it away.
        mthoms 5y ago
        You sound quite sure that the outlying instances of direct copying wouldn't be covered by the Fair Use copyright exemption. Any particular reason for that? I tend to think it would be covered (provided it there were relatively small snippets and not entire functions).
_Understated_ 5y ago
> By comparison, Copilot is even more obviously fair use. Not sure I see it that way. If I take your hard work that you clearly marked with a GPL license and then make money from it, not quite directly, but very closely, how is that fair use? Or legal? Copying and storing a book isn't recreating another book from it. Copilot is creating new stuff from the contents of the "books" in this case. Edit: I misunderstood fair use as it turns out...
- Hamuko 5y ago
  >If I take your hard work that you clearly marked with a GPL license and then make money from it, not quite directly, but very closely, how is that fair use? Or legal? You can wipe your ass with the GPL license if your use of the product falls within Fair Use. You can actually take snippets from commercial movies and post them onto YouTube if your YouTube video is transformative enough for your usage to be considered fair use. Well, theoretically at least - in reality YouTube might automatically copyright strike it. >Copying and storing a book isn't recreating another book from it. That doesn't mean that GitHub has to redistribute Copilot under GPL. However, the end user could potentially have to if they use Copilot to generate new code that happens to copy GPL code verbatim.
  - _Understated_ 5y ago
    > You can wipe your ass with the GPL license if your use of the product falls within Fair Use. Is Copilot fair use? It's reading code, generating other code (some verbatim) and making money from it all while not having to release its source code to the world? > That doesn't mean that GitHub has to redistribute Copilot under GPL I wasn't saying that was the case: some of the code that Copilot used may not allow redistribution under GPL. But let's say that all of the code it scanned was GPL for the sake of argument. Why would they not have to distribute their Copilot source yet, if I use it to generate some code, I'd have to distribute mine? My spidey-sense it tingling at that one!
    - 8note 5y ago
      Making money is irrelevant to fair use
echelon 5y ago
> Even without a license or permission, fair use permits the mass scanning of books, the storage of the content of those books, and rendering verbatim snippets of those books. For commercial use and derivative works? Authors won't incorporate snippets of books into new works unless they're reviews. Copilot is different.
- AaronFriel 5y ago
  Google Books is a commercial site which incorporated the snippets of millions of copyrighted works. And of course, sitting in thousands of Google servers/databases are full copies of each of those books, photos of each page, the OCRed text of each page, and indexes to search them. Even that egregious copying without a license or permission was considered fair use. If anything, the ways in which Copilot is different aid Microsoft/GitHub's argument for fair use. Because Copilot creates novel new works, that gives them a strong argument their system is more transformative than Google Books, which just presents verbatim copies of books.
  - cycomanic 5y ago
    The Google books example really misses the point, one of the reasons why the judges considered it fair use was because it was pointing back to the original sources (and thus potentially increasing publishers earnings). Copilot does none of that. If all the ML companies are so sure this is fair use I encourage them to train an AI on Disney movies to generate short cartoon snippets based on some description. There sure would be a court case.
    - Mehdi2277 5y ago
      The main issue here is less doing it, but getting sufficiently nice results. I've done work in generative AI before and right now the state of the art is passable on single images with some but not enough control and is still weak on videos without heavy structure requirements. I expect in 5-10 years we will have good enough models (or hardware) to do short video generation and the question will get tested then. I also think a meaningful good video requires audio and have fun making well aligned text (for dialogue) audio of that text, and video frames. Aligning all that generation together is still challenging today.
IgorPartola 5y ago
I think this is the correct answer. IANAL but the copilot code vs the copilot training data are different things and licensing for one shouldn’t affect the other, right? And the fact that training data happens to also be code is incidental.
- 8note 5y ago
  One view would be that copilot the app distributes GPL'd code, in a weird encoding. Training the model is a compilation step to that encoding
- keonix 5y ago
  I assume the code is a derivative work of training data because given different data code would be also different (neuron weights)
  - IgorPartola 5y ago
    If I read a GPL implementation of a linked list and then write my own linked list implementation, was my neural network in my brain a derivative work of the GPL code?
    - keonix 5y ago
      Sure it is, you brain is not software though
      - IgorPartola 5y ago
        So as long as I read GPL code, then rewrite it from memory and feed it to copilot to train it I can unGPL anything?
indymike 5y ago
Books (mostly) are not distributed under the GPL.
- tedunangst 5y ago
  Does the GPL forbid fair use? Why don't book publishers use a license that forbids fair use?
  - AaronFriel 5y ago
    Because fair use is an exception to copyright itself. A copyright license can't take away your legal right to fair use.
  - bdowling 5y ago
    > Why don't book publishers use a license that forbids fair use? They couldn't do it with a license, which only imposes conditions for the license to be valid. Fair use applies even if the copier has no license at all. Potentially they could do it with a contract. A license is not a contract and imposes no covenants on the parties.
- jefftk 5y ago
  The GPL only gives you additional permissions relative to what you would have by default. The books included in that suit were more strongly restricted, since there was no license at all.
  - indymike 5y ago
    There are certainly some interesting additional conditions the GPL creates by taking the license away if you violate certain clauses. Regardless, the interesting part of this is that this looks different from the user's point of view and Microsoft's. Sure, 5 lines out of 10,000 is probably fair use. For Microsoft, their system is using the whole code base and copying it a few lines at a time to different people, eventually adding up to potentially lots more than fair use. The question on this one will be about the difference between Microsoft/Github's product and a programmer using copilot's code: "If I feed the entire code base to a machine, and it copies small snippets to different people, do we add the copies up, or just look at the final product?"
otterley 5y ago
If this issue is eventually litigated, we will see. The law in the Second Circuit (where the final judgment was rendered before the case was eventually settled) may well be different than the law in a different circuit. If there is a split in the circuit courts, then the Supreme Court may have to weigh in on this issue. When fair use is an issue, the courts look at the facts in context each time. These are obviously different facts than scanning books for populating a search index and rendering previews; and each side is going to argue that the facts are similar or that they are dissimilar. How the court sees it is going to be the key question.
- tyre 5y ago
  This could either be: 1. a fascinating Supreme Court opinion. 2. a frustrating ruling because SCOTUS doesn't understand software and code. 3. the type of anti-anticlimactically(?) narrow ruling typical of the Roberts court. While our Congresspersons can't seem to wrap their minds around technology/social media, I think SCOTUS would understand this one enough to avoid (2).
  - dtech 5y ago
    The Google vs Oracle case showed that SCOTUS can handle technical topics
  - otterley 5y ago
    Fair use cases tend to produce narrowly-written law because the outcomes hinge on how the court judges the facts against the list of factors codified in the Copyright Act (17 U.S.C. section 107). The courts don't really have breathing room to use a different test. I don't recall any cases in which the courts have set binding guidelines for interpretation of these factors.
cmsonger 5y ago
This is a thoughtful and insightful reply. Thank you.
tyre 5y ago
Copilot is not doing what your example does. If Github had a service that automatically mirrored public repositories on Gitlab, that would be equivalent to the example you gave. But Github is taking content under specific licenses to build something new for commercial use. I'm not sure if what Github does falls under Fair Use, but I don't know that it matters. I can read fifty books and then write my own, which would certainly rely—consciously or not—on what I had read. Is that a copyright violation? It doesn't seem like it is but maybe it is and until now has been impossible to prosecute?
- nojito 5y ago
  GitHub isn’t building anything. The end user is. By this logic any and all neural nets that draw pictures are copyright infringing as well.
  - saati 5y ago
    If they create exact copies of copyrighted pictures, then yes, they do.
jkaplowitz 5y ago
The world is global. That's a US court ruling from one court of appeals. Most countries have narrower fair use rights than the US. Even if Copilot would fall within that legal precedent (far from guaranteed), a legal challenge in any jurisdiction worldwide outside the US states covered by that particular court of appeals, or which reaches the US Supreme Court, or which goes through the Federal Circuit Court of Appeals due to the initial complaint including a patent claim, would not be bound by that result and (especially in a different country) could very plausibly find otherwise. What's more, if any of the code implements a patent, fair use does not cover patent law, and relying on fair use rather than a copyright license does not benefit from any patent use grant that may be included in the copyright license. If a codebase infringes a patent due to Copilot automatically adding the code, I can easily imagine GitHub being attributed shared contributory liability for the infringement by a court. Not a lawyer, just a former law student and law feel layman who has paid attention to these subjects.
- jkaplowitz 5y ago
  > law feel layman What a weird autocorrect typo. This should have read "law geek layman." (And it initially autocorrected again as I was typing this paragraph.)
jrm4 5y ago
You're strongly and incorrectly implying that "Fair Use" is a clear (and relatively immutable) concept within copyright law, which couldn't be further from the truth. Even if this or that particular case sets out what appears to be solid grounds, one shouldn't take that as gospel by any means. This mostly has to do with the nature of the wishy-washy nature of the 4 part Fair Use test, which, unlike decent legal tests, doesn't actually have discrete answers. The judge looks at the 4 questions, talks about them while waving her hands, and makes a decision. Comparing to, e.g., Patent, where you actually do have yes-or-no questions. Clean Booleans. Is it Novel? Is it Non-Obvious? Is it Useful? If any of the above is "No", then no patent for you. As for the execution of Fair Use, while I haven't gone too deep into Software, I can assure that for music, the thing is just a silly holy-hell mess; confirmed most recently by the "Blurred Lines" case, where NO DIRECT COPYING (e.g. sampling or melody taking) was alleged, merely that the song sounded really similar to "Got to give it up" and that was enough. So then, I'd say everything either is, or should be, up in the air, when it comes to Fair Use and software.
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- extra88 5y ago
  > Is it Novel? Is it Non-Obvious? Those questions for patents are barely more clear-cut than copyright fair use tests, there is lots of room for disagreement. It's definitely true that a fair use defense against copyright infringement varies a lot by the field of work and norms can develop which are relevant to court cases. The music field is a mess, the "Blurred Lines" judgement was total bullshit. But the software field is not without its own copyright history and norms so there's no reason to expect everything to go to hell.
  - jrm4 5y ago
    But there's no reason not to either - I suppose my point is, don't take too much as gospel and think about everybody's best "end-goals" and push or pull with or against the law as needed.
ska 5y ago
> By comparison, Copilot is even more obviously fair use. You are correct about (US specific) the fair use exception, but it is in no way as clear as you suggest that what copilot is doing entirely falls under fair use. Fair use is always constrained. I suspect some variant of this sort of thing will have to be tested in court before the arguments are really clear.
syshum 5y ago
While I agree you are correct about (in the US anyway) fair use being an exemption from copyright, thus superceeds licensing I disagree that Copilot is "more obviously fair use.", some parts might be, but we have seen clear examples (i.e verbatim code reproduction) that would not be. I dont believe the question of "is this fair use" is as clear as you believe it to be
extra88 5y ago
Yes to all this. I think the factor most at risk in a fair use test with Copilot is whether it ever suggests verbatim, code that could be considered the "heart" of the original work. The John Carmack example that's popped up here at least gets closer to this question, it was a relatively small amount but it was doing something very clever and important. One can imagine a project that has thousands of lines of code to create a GUI, handle error conditions, etc. that's built around a relatively small function; if Copilot spat out that function in my code, it might not be fair use because it's the "heart" of the original work. Additionally, its inclusion in another project could affect the potential market for the original, another fair use test. But Copilot suggesting a "heart" is unlikely, something that would have to be ruled on in a case-by-case basis and not a reason to shut it down entirely. Companies that are risk-averse could forbid developers from using Copilot.
- mthoms 5y ago
  This is an excellent comment because it captures some important nuance missing from other analysis on HN. I agree with you that the relative importance of the copied code to the end product would be (or should be) the crux of the issue for the courts in determining infringement. This overall interpretation most closely adheres to the spirit and intent of Fair Use as I understand it.
logifail 5y ago
> Fair use is an exception to copyright itself. A license cannot remove your right to fair use. ...and if you're outside the USA?
swiley 5y ago
Just for reference, the hackernews source is public.
- e12e 5y ago
  Not the current version? AFAIK there's some security-by-obscurity in the measures against spam, voter rings etc ?
feanaro 5y ago
When the recent Github v. youtube-dl fiasco happened, I remember reading similarly strongly-worded but dismissive comments regarding fair use, stating how it is quite obvious that youtube-dl's test code could never be fair use and how fair use itself is a vague, shaky, underspecified provision of the copyright law which cannot ever be relied on. To me, seeing youtube-dl's case as fair use is so much easier than using hundreds of thousands source code files without permission in order to build a proprietary product.
- 0-_-0 5y ago
  How would you feel about a paid-for search engine using hundreds of millios of web pages without permission in order to build a proprietary product?
  - sbelskie 5y ago
    You mean like a search engine?
  - cycomanic 5y ago
    There is a crucial difference though, the search engine links back to the content. If Google would just display the content on their verbatim, it would definetly not be considered fair use. Even like this several countries have restricted what Google can do when displaying e.g. News.
  - feanaro 5y ago
    Somehow building a list of pointers to original content does simply not have the same ring to me as a product that rehashes all of the content. A rehashing of content sounds to me much more like, for example, publishing a sequel to my favourite book. After all, a sequel is just a rehashing of the same characters in new adventures. If we can't do that, why should Copilot be fine? My point was however that I'm just utterly failing to see how the youtube-dl test thing could be more of a copyright problem than this entire thing based on millions of others' works that is Copilot.
jollybean 5y ago
Thanks for this, but can you answer the question: Would it be 'fair use' for the devlopers to simply copy code from those repos - even just 10 lines, and claim 'fair use' - i.e. circumventing Copilot? Even if Copilot is 'fair use' ... does that mean the results are 'fair use' on the part of AutoPilot users? And a bigger question: is your interpretation of those statues and case law enough to make the answer unambiguous? I don't have legal background, but I do have an operating background with lawyers and tech ... and my 'gut' says that anyone using Copilot is opening themselves up to lawsuits. If the code you put in your software comes, via Copilot, but that code is verbatim from some kind of GPL's (or worse, proprietary) ... there's a good chance you could get sued if someone gets the inclination. Maybe it's because of my personal experience, but I can just see corporate lawyers banning Copilot straight up as the risks are simply now worth the upside. That's now what we like to hear in the classically liberal sense i.e. 'share and innovate' ... but gosh it doesn't feel like a happy legal situation to me. Looking forward to people with more insight sharing on this important topic.
- AaronFriel 5y ago
  > Would it be 'fair use' for the devlopers to simply copy code from those repos - even just 10 lines, and claim 'fair use' - i.e. circumventing Copilot? Only a lawyer (and truly, only a court) could answer that question. If you copy 100 lines of code that amounts to no more than a trivial implementation in a popular language of how to invert a binary tree, it's likely fair use. If you copy 10 lines of code that are highly novel, have never been written before, and solve a problem no one outside the authors have solved... It may not be fair use to copy that. Other people who have replied have mentioned "the heart" of a work. The US Supreme Court has held that even de minimis - "minimal", to be brief - copying can sometimes be infringement if you copied the "heart" of a work.
mirekrusin 5y ago
If fair use memorising whole source code byte-by-byte, storing it as ie. some non-100%-lossless compression for subsequent retrieval or arbitrary size snippets?
Causality1 5y ago
Read the Authors Guild v Google dismissal. The court considered it fair use because Google's project was built explicitly to let users find and purchase books, giving revenue to the copyright holders. Copilot does not do that.
- bdowling 5y ago
  > ... giving revenue to the copyright holders. That's a reference to factor four of the fair use test, "the effect of the use upon the potential market for or value of the copyrighted work." (17 USC 107). None of the factors are dispositive, however. For example, a scathing book review that quotes a passage to show how bad the writing is might eviscerate sales of the book, but such a use is usually protected. For a counter-example, see Harper & Row v. Nation Enterprises 471 U.S. 539 (1985).
adverbly 5y ago
This was a good point. Really enjoying this discussion. Interesting stuff. I'm really out of my depth in giving my own opinion here, but I'm not sure that either the "distribution != derivative" characterization, or that "parsing GPL => derivative of GPL" really locks this thing down. The bit that I can't follow with the "distribution != derivative" argument is that the copilot is actually performing distribution rather than "design". I would have said that copilot's core function is generating implementations, which to me does not seem like distribution. This isn't a "search" product, and it's not trying to be one. It is attempting to do design work, and I could see a case where that distinction matters.
indigochill 5y ago
Next up, Copilot for college papers! Who needs to pay a professional paper-writer (ahem, I mean write the paper) when you can have an AI write your paper for you! It's fair use, so you're entitled to claim ownership to it, right?
- jrochkind1 5y ago
  I think you are confusing legal protections for intellectual property with plagiarism. (At least that's what I think you're doing if I read your comment as sarcasm and guess what you're trying to say non-sarcastically?) But they are entirely different things. You can be violating copyright without plagiarizing, so long as you cite your source, but if you copy a copyright-protected work in an illegal way when doing so. And you can be plagiarizing without violating copyright, if you have the permission of the copyright holder to use their content, or if the content is in the public domain and not protected by copyright, or if it's legal under fair use -- but you pass it off as your own work. Two entirely separate things. You can get expelled from school for plaguriism without violating anyone's copyright, or prosecuted for copyright without committing any academic dishonesty. You can indeed have the legal right to make use of content, under fair use or anything else, but it can still be plagiarism. That you have a fair use right does not mean "Oh so that means you are allowed to turn it in to your professor and get an A and the law says you must be allowed to do this and nobody can say otherwise!" -- no.
  - indigochill 5y ago
    Yeah, I was being sarcastic. But you make a good point about the legality of plagiarism.
ElFitz 5y ago
> Note, however, that there is no world-wide principle of fair use; what kinds of use are considered “fair” varies from country to country. Exactly the point I came to make. The Authors’ Guild is a US entity, and so is Google, so only US law applies. And thus, we have the Fair Use exception. But developers sharing code on GitHub come from and live all over the world. Now, Github’s ToS do include the usual provision stating that US & California law applies, et cætera, et cætera [1], but… and even they acknowledge it may be the case, such provisions usually aren’t considered legal outside of the US. So… developers from outside the US, in countries with less lenient exceptions to copyright, definitely could sue them. Identifying these countries and finding those developers, however, is a different matter altogether. [1]: https://docs.github.com/en/github/site-policy/github-terms-of-service#1-governing-law https://docs.github.com/en/github/site-policy/github-terms-o...
RandomBK 5y ago
For any discussion on copyright and fair use, we should distinguish between the implications to Copilot the software itself and the implications to users of Copilot. For Copilot itself, I do see the case for fair use, though it gets fuzzy should Microsoft ever start commercializing the feature. Nevertheless it remains to be seen whether ML training fits the same public policy benefits public libraries and free debate leverages to enable the fair use defense. For Copilot users, I don't see an easy defense. In your hypothetical, this would be akin to me going on Google books and copying snippets of copyrighted works for my own book. In the case of Google books, they explicitly call out the limits on how the material they publish can be used. I'm contrast, Copilot seems to be designed to encourage such copying, making it more worry some in comparison.
- Talanes 5y ago
  >In your hypothetical, this would be akin to me going on Google books and copying snippets of copyrighted works for my own book. A book completely written by pasting passages of other books would actually be a pretty interesting transformative work.
  - BlueTemplar 5y ago
    Yeah, but a book like this would be an artistic work. While software is in this limbo between copyrights and patents...
croes 5y ago
Can you still apply Fair Use if they make Copilot a payed service?
random314 5y ago
If copilot was trained using the entirety of the linux kernel, wouldn't the neural network itself need to be GPLed, if not its output.
wilde 5y ago
I buy the argument about copilot itself and this comment. But when someone goes to release software that uses the output of Copilot, I fail to see how they wouldn’t be a GPL derivative work if enough source was used. Copilot is essentially really fancy copy/paste in that context.
lallysingh 5y ago
Assuming that Copilot's use of GPL'd code to provide snippets to a developer is fair use, what rights does the developer have to using that snippet?
- alerighi 5y ago
  Can you copy 10 lines of code from a open source project in your software? Yes you an, it's considered fair use. Nobody will ever sue for that. If it was, websites like StackOverflouw where developers post code probably taken by project with some restrictive license and other developer copy it in their projects would not exist. Copilot will not write an entire software module, it will provide you with snippets. I see using GPL code for training fair use. If a developer reads the source code of a project to take inspiration and possibly copy some small parts does it violate the license?
bdowling 5y ago
> ...the non-obvious thing for many developers is that fair use is an exception to copyright itself. More precisely, fair use is an affirmative defense to an claim of copyright infringement. A fair use defense basically says, "Yes, I am copying your copyrighted material and I don't have a license (or am exceeding a licensed use), but my usage is allowed under the fair use doctrine (codified in 17 USC 107 in US law)."
CapriciousCptl 5y ago
Does intent not matter? Pasting code for explanatory reasons and citing the source seems different than silently incorporating it directly into a commercial work product.
BlueTemplar 5y ago
> Fair use is an exception to copyright itself. And copyright itself is an exception to the normal state of things : the public domain, copyright being only a temporary monopoly.

shakna 5y ago

> No, see Authors Guild v. Google. That case required that the output be transformative, in that "words in books are being used in a way they have not been used before". Copilot only fits the transformative aspect if it is not directly reciting code, that already exists in the form that it is redistributing. So long as it does so, it fails to meet the criteria.

tedunangst 5y ago
It's not possible to get copilot to output a transformed version of the input?
- shakna 5y ago
  Transformed output _may_ fall under fair use. However - Copilot directly recites code. That is _very unlikely_ to fall under fair use. Redistributing the exact same code, in the same form, for the same purpose, probably means that Copilot, and thus the people responsible for it, are infringing.
  - nonfamous 5y ago
    > However - Copilot directly recites code. You make that statement as an absolute, but in the interests of clarity, all evidence so far shows that it directly recites code very rarely indeed. Even the Quake example had to be prompted by the specific variable names used in the original code. In practice, the output code is heavily influenced by your own context — the comments you include, the variable names you use, even the name of the file you are editing — and with use it’s obvious that the code is almost certainly not a direct recitation of any existing code.
    - shakna 5y ago
      > all evidence so far shows that it directly recites code very rarely indeed. _Once_ is enough for it to be infringing. The law is not very forgiving when you try and handwave it away.
      - mthoms 5y ago
        You sound quite sure that the outlying instances of direct copying wouldn't be covered by the Fair Use copyright exemption. Any particular reason for that? I tend to think it would be covered (provided it there were relatively small snippets and not entire functions).

_Understated_ 5y ago

> By comparison, Copilot is even more obviously fair use. Not sure I see it that way. If I take your hard work that you clearly marked with a GPL license and then make money from it, not quite directly, but very closely, how is that fair use? Or legal? Copying and storing a book isn't recreating another book from it. Copilot is creating new stuff from the contents of the "books" in this case. Edit: I misunderstood fair use as it turns out...

Hamuko 5y ago
>If I take your hard work that you clearly marked with a GPL license and then make money from it, not quite directly, but very closely, how is that fair use? Or legal? You can wipe your ass with the GPL license if your use of the product falls within Fair Use. You can actually take snippets from commercial movies and post them onto YouTube if your YouTube video is transformative enough for your usage to be considered fair use. Well, theoretically at least - in reality YouTube might automatically copyright strike it. >Copying and storing a book isn't recreating another book from it. That doesn't mean that GitHub has to redistribute Copilot under GPL. However, the end user could potentially have to if they use Copilot to generate new code that happens to copy GPL code verbatim.
- _Understated_ 5y ago
  > You can wipe your ass with the GPL license if your use of the product falls within Fair Use. Is Copilot fair use? It's reading code, generating other code (some verbatim) and making money from it all while not having to release its source code to the world? > That doesn't mean that GitHub has to redistribute Copilot under GPL I wasn't saying that was the case: some of the code that Copilot used may not allow redistribution under GPL. But let's say that all of the code it scanned was GPL for the sake of argument. Why would they not have to distribute their Copilot source yet, if I use it to generate some code, I'd have to distribute mine? My spidey-sense it tingling at that one!
  - 8note 5y ago
    Making money is irrelevant to fair use

echelon 5y ago

> Even without a license or permission, fair use permits the mass scanning of books, the storage of the content of those books, and rendering verbatim snippets of those books. For commercial use and derivative works? Authors won't incorporate snippets of books into new works unless they're reviews. Copilot is different.

AaronFriel 5y ago
Google Books is a commercial site which incorporated the snippets of millions of copyrighted works. And of course, sitting in thousands of Google servers/databases are full copies of each of those books, photos of each page, the OCRed text of each page, and indexes to search them. Even that egregious copying without a license or permission was considered fair use. If anything, the ways in which Copilot is different aid Microsoft/GitHub's argument for fair use. Because Copilot creates novel new works, that gives them a strong argument their system is more transformative than Google Books, which just presents verbatim copies of books.
- cycomanic 5y ago
  The Google books example really misses the point, one of the reasons why the judges considered it fair use was because it was pointing back to the original sources (and thus potentially increasing publishers earnings). Copilot does none of that. If all the ML companies are so sure this is fair use I encourage them to train an AI on Disney movies to generate short cartoon snippets based on some description. There sure would be a court case.
  - Mehdi2277 5y ago
    The main issue here is less doing it, but getting sufficiently nice results. I've done work in generative AI before and right now the state of the art is passable on single images with some but not enough control and is still weak on videos without heavy structure requirements. I expect in 5-10 years we will have good enough models (or hardware) to do short video generation and the question will get tested then. I also think a meaningful good video requires audio and have fun making well aligned text (for dialogue) audio of that text, and video frames. Aligning all that generation together is still challenging today.

IgorPartola 5y ago

I think this is the correct answer. IANAL but the copilot code vs the copilot training data are different things and licensing for one shouldn’t affect the other, right? And the fact that training data happens to also be code is incidental.

8note 5y ago
One view would be that copilot the app distributes GPL'd code, in a weird encoding. Training the model is a compilation step to that encoding
keonix 5y ago
I assume the code is a derivative work of training data because given different data code would be also different (neuron weights)
- IgorPartola 5y ago
  If I read a GPL implementation of a linked list and then write my own linked list implementation, was my neural network in my brain a derivative work of the GPL code?
  - keonix 5y ago
    Sure it is, you brain is not software though
    - IgorPartola 5y ago
      So as long as I read GPL code, then rewrite it from memory and feed it to copilot to train it I can unGPL anything?

indymike 5y ago

Books (mostly) are not distributed under the GPL.

tedunangst 5y ago
Does the GPL forbid fair use? Why don't book publishers use a license that forbids fair use?
- AaronFriel 5y ago
  Because fair use is an exception to copyright itself. A copyright license can't take away your legal right to fair use.
- bdowling 5y ago
  > Why don't book publishers use a license that forbids fair use? They couldn't do it with a license, which only imposes conditions for the license to be valid. Fair use applies even if the copier has no license at all. Potentially they could do it with a contract. A license is not a contract and imposes no covenants on the parties.
jefftk 5y ago
The GPL only gives you additional permissions relative to what you would have by default. The books included in that suit were more strongly restricted, since there was no license at all.
- indymike 5y ago
  There are certainly some interesting additional conditions the GPL creates by taking the license away if you violate certain clauses. Regardless, the interesting part of this is that this looks different from the user's point of view and Microsoft's. Sure, 5 lines out of 10,000 is probably fair use. For Microsoft, their system is using the whole code base and copying it a few lines at a time to different people, eventually adding up to potentially lots more than fair use. The question on this one will be about the difference between Microsoft/Github's product and a programmer using copilot's code: "If I feed the entire code base to a machine, and it copies small snippets to different people, do we add the copies up, or just look at the final product?"

otterley 5y ago

If this issue is eventually litigated, we will see. The law in the Second Circuit (where the final judgment was rendered before the case was eventually settled) may well be different than the law in a different circuit. If there is a split in the circuit courts, then the Supreme Court may have to weigh in on this issue. When fair use is an issue, the courts look at the facts in context each time. These are obviously different facts than scanning books for populating a search index and rendering previews; and each side is going to argue that the facts are similar or that they are dissimilar. How the court sees it is going to be the key question.

tyre 5y ago
This could either be: 1. a fascinating Supreme Court opinion. 2. a frustrating ruling because SCOTUS doesn't understand software and code. 3. the type of anti-anticlimactically(?) narrow ruling typical of the Roberts court. While our Congresspersons can't seem to wrap their minds around technology/social media, I think SCOTUS would understand this one enough to avoid (2).
- dtech 5y ago
  The Google vs Oracle case showed that SCOTUS can handle technical topics
- otterley 5y ago
  Fair use cases tend to produce narrowly-written law because the outcomes hinge on how the court judges the facts against the list of factors codified in the Copyright Act (17 U.S.C. section 107). The courts don't really have breathing room to use a different test. I don't recall any cases in which the courts have set binding guidelines for interpretation of these factors.

cmsonger 5y ago

This is a thoughtful and insightful reply. Thank you.

tyre 5y ago

Copilot is not doing what your example does. If Github had a service that automatically mirrored public repositories on Gitlab, that would be equivalent to the example you gave. But Github is taking content under specific licenses to build something new for commercial use. I'm not sure if what Github does falls under Fair Use, but I don't know that it matters. I can read fifty books and then write my own, which would certainly rely—consciously or not—on what I had read. Is that a copyright violation? It doesn't seem like it is but maybe it is and until now has been impossible to prosecute?

nojito 5y ago
GitHub isn’t building anything. The end user is. By this logic any and all neural nets that draw pictures are copyright infringing as well.
- saati 5y ago
  If they create exact copies of copyrighted pictures, then yes, they do.

jkaplowitz 5y ago

The world is global. That's a US court ruling from one court of appeals. Most countries have narrower fair use rights than the US. Even if Copilot would fall within that legal precedent (far from guaranteed), a legal challenge in any jurisdiction worldwide outside the US states covered by that particular court of appeals, or which reaches the US Supreme Court, or which goes through the Federal Circuit Court of Appeals due to the initial complaint including a patent claim, would not be bound by that result and (especially in a different country) could very plausibly find otherwise. What's more, if any of the code implements a patent, fair use does not cover patent law, and relying on fair use rather than a copyright license does not benefit from any patent use grant that may be included in the copyright license. If a codebase infringes a patent due to Copilot automatically adding the code, I can easily imagine GitHub being attributed shared contributory liability for the infringement by a court. Not a lawyer, just a former law student and law feel layman who has paid attention to these subjects.

jkaplowitz 5y ago
> law feel layman What a weird autocorrect typo. This should have read "law geek layman." (And it initially autocorrected again as I was typing this paragraph.)

jrm4 5y ago

You're strongly and incorrectly implying that "Fair Use" is a clear (and relatively immutable) concept within copyright law, which couldn't be further from the truth. Even if this or that particular case sets out what appears to be solid grounds, one shouldn't take that as gospel by any means. This mostly has to do with the nature of the wishy-washy nature of the 4 part Fair Use test, which, unlike decent legal tests, doesn't actually have discrete answers. The judge looks at the 4 questions, talks about them while waving her hands, and makes a decision. Comparing to, e.g., Patent, where you actually do have yes-or-no questions. Clean Booleans. Is it Novel? Is it Non-Obvious? Is it Useful? If any of the above is "No", then no patent for you. As for the execution of Fair Use, while I haven't gone too deep into Software, I can assure that for music, the thing is just a silly holy-hell mess; confirmed most recently by the "Blurred Lines" case, where NO DIRECT COPYING (e.g. sampling or melody taking) was alleged, merely that the song sounded really similar to "Got to give it up" and that was enough. So then, I'd say everything either is, or should be, up in the air, when it comes to Fair Use and software.

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extra88 5y ago
> Is it Novel? Is it Non-Obvious? Those questions for patents are barely more clear-cut than copyright fair use tests, there is lots of room for disagreement. It's definitely true that a fair use defense against copyright infringement varies a lot by the field of work and norms can develop which are relevant to court cases. The music field is a mess, the "Blurred Lines" judgement was total bullshit. But the software field is not without its own copyright history and norms so there's no reason to expect everything to go to hell.
- jrm4 5y ago
  But there's no reason not to either - I suppose my point is, don't take too much as gospel and think about everybody's best "end-goals" and push or pull with or against the law as needed.

ska 5y ago

> By comparison, Copilot is even more obviously fair use. You are correct about (US specific) the fair use exception, but it is in no way as clear as you suggest that what copilot is doing entirely falls under fair use. Fair use is always constrained. I suspect some variant of this sort of thing will have to be tested in court before the arguments are really clear.

syshum 5y ago

While I agree you are correct about (in the US anyway) fair use being an exemption from copyright, thus superceeds licensing I disagree that Copilot is "more obviously fair use.", some parts might be, but we have seen clear examples (i.e verbatim code reproduction) that would not be. I dont believe the question of "is this fair use" is as clear as you believe it to be

extra88 5y ago

Yes to all this. I think the factor most at risk in a fair use test with Copilot is whether it ever suggests verbatim, code that could be considered the "heart" of the original work. The John Carmack example that's popped up here at least gets closer to this question, it was a relatively small amount but it was doing something very clever and important. One can imagine a project that has thousands of lines of code to create a GUI, handle error conditions, etc. that's built around a relatively small function; if Copilot spat out that function in my code, it might not be fair use because it's the "heart" of the original work. Additionally, its inclusion in another project could affect the potential market for the original, another fair use test. But Copilot suggesting a "heart" is unlikely, something that would have to be ruled on in a case-by-case basis and not a reason to shut it down entirely. Companies that are risk-averse could forbid developers from using Copilot.

mthoms 5y ago
This is an excellent comment because it captures some important nuance missing from other analysis on HN. I agree with you that the relative importance of the copied code to the end product would be (or should be) the crux of the issue for the courts in determining infringement. This overall interpretation most closely adheres to the spirit and intent of Fair Use as I understand it.

logifail 5y ago

> Fair use is an exception to copyright itself. A license cannot remove your right to fair use. ...and if you're outside the USA?

swiley 5y ago

Just for reference, the hackernews source is public.

e12e 5y ago
Not the current version? AFAIK there's some security-by-obscurity in the measures against spam, voter rings etc ?

feanaro 5y ago

When the recent Github v. youtube-dl fiasco happened, I remember reading similarly strongly-worded but dismissive comments regarding fair use, stating how it is quite obvious that youtube-dl's test code could never be fair use and how fair use itself is a vague, shaky, underspecified provision of the copyright law which cannot ever be relied on. To me, seeing youtube-dl's case as fair use is so much easier than using hundreds of thousands source code files without permission in order to build a proprietary product.

0-_-0 5y ago
How would you feel about a paid-for search engine using hundreds of millios of web pages without permission in order to build a proprietary product?
- sbelskie 5y ago
  You mean like a search engine?
- cycomanic 5y ago
  There is a crucial difference though, the search engine links back to the content. If Google would just display the content on their verbatim, it would definetly not be considered fair use. Even like this several countries have restricted what Google can do when displaying e.g. News.
- feanaro 5y ago
  Somehow building a list of pointers to original content does simply not have the same ring to me as a product that rehashes all of the content. A rehashing of content sounds to me much more like, for example, publishing a sequel to my favourite book. After all, a sequel is just a rehashing of the same characters in new adventures. If we can't do that, why should Copilot be fine? My point was however that I'm just utterly failing to see how the youtube-dl test thing could be more of a copyright problem than this entire thing based on millions of others' works that is Copilot.

jollybean 5y ago

Thanks for this, but can you answer the question: Would it be 'fair use' for the devlopers to simply copy code from those repos - even just 10 lines, and claim 'fair use' - i.e. circumventing Copilot? Even if Copilot is 'fair use' ... does that mean the results are 'fair use' on the part of AutoPilot users? And a bigger question: is your interpretation of those statues and case law enough to make the answer unambiguous? I don't have legal background, but I do have an operating background with lawyers and tech ... and my 'gut' says that anyone using Copilot is opening themselves up to lawsuits. If the code you put in your software comes, via Copilot, but that code is verbatim from some kind of GPL's (or worse, proprietary) ... there's a good chance you could get sued if someone gets the inclination. Maybe it's because of my personal experience, but I can just see corporate lawyers banning Copilot straight up as the risks are simply now worth the upside. That's now what we like to hear in the classically liberal sense i.e. 'share and innovate' ... but gosh it doesn't feel like a happy legal situation to me. Looking forward to people with more insight sharing on this important topic.

AaronFriel 5y ago
> Would it be 'fair use' for the devlopers to simply copy code from those repos - even just 10 lines, and claim 'fair use' - i.e. circumventing Copilot? Only a lawyer (and truly, only a court) could answer that question. If you copy 100 lines of code that amounts to no more than a trivial implementation in a popular language of how to invert a binary tree, it's likely fair use. If you copy 10 lines of code that are highly novel, have never been written before, and solve a problem no one outside the authors have solved... It may not be fair use to copy that. Other people who have replied have mentioned "the heart" of a work. The US Supreme Court has held that even de minimis - "minimal", to be brief - copying can sometimes be infringement if you copied the "heart" of a work.

mirekrusin 5y ago

If fair use memorising whole source code byte-by-byte, storing it as ie. some non-100%-lossless compression for subsequent retrieval or arbitrary size snippets?

Causality1 5y ago

Read the Authors Guild v Google dismissal. The court considered it fair use because Google's project was built explicitly to let users find and purchase books, giving revenue to the copyright holders. Copilot does not do that.

bdowling 5y ago
> ... giving revenue to the copyright holders. That's a reference to factor four of the fair use test, "the effect of the use upon the potential market for or value of the copyrighted work." (17 USC 107). None of the factors are dispositive, however. For example, a scathing book review that quotes a passage to show how bad the writing is might eviscerate sales of the book, but such a use is usually protected. For a counter-example, see Harper & Row v. Nation Enterprises 471 U.S. 539 (1985).

adverbly 5y ago

This was a good point. Really enjoying this discussion. Interesting stuff. I'm really out of my depth in giving my own opinion here, but I'm not sure that either the "distribution != derivative" characterization, or that "parsing GPL => derivative of GPL" really locks this thing down. The bit that I can't follow with the "distribution != derivative" argument is that the copilot is actually performing distribution rather than "design". I would have said that copilot's core function is generating implementations, which to me does not seem like distribution. This isn't a "search" product, and it's not trying to be one. It is attempting to do design work, and I could see a case where that distinction matters.

indigochill 5y ago

Next up, Copilot for college papers! Who needs to pay a professional paper-writer (ahem, I mean write the paper) when you can have an AI write your paper for you! It's fair use, so you're entitled to claim ownership to it, right?

jrochkind1 5y ago
I think you are confusing legal protections for intellectual property with plagiarism. (At least that's what I think you're doing if I read your comment as sarcasm and guess what you're trying to say non-sarcastically?) But they are entirely different things. You can be violating copyright without plagiarizing, so long as you cite your source, but if you copy a copyright-protected work in an illegal way when doing so. And you can be plagiarizing without violating copyright, if you have the permission of the copyright holder to use their content, or if the content is in the public domain and not protected by copyright, or if it's legal under fair use -- but you pass it off as your own work. Two entirely separate things. You can get expelled from school for plaguriism without violating anyone's copyright, or prosecuted for copyright without committing any academic dishonesty. You can indeed have the legal right to make use of content, under fair use or anything else, but it can still be plagiarism. That you have a fair use right does not mean "Oh so that means you are allowed to turn it in to your professor and get an A and the law says you must be allowed to do this and nobody can say otherwise!" -- no.
- indigochill 5y ago
  Yeah, I was being sarcastic. But you make a good point about the legality of plagiarism.

ElFitz 5y ago

> Note, however, that there is no world-wide principle of fair use; what kinds of use are considered “fair” varies from country to country. Exactly the point I came to make. The Authors’ Guild is a US entity, and so is Google, so only US law applies. And thus, we have the Fair Use exception. But developers sharing code on GitHub come from and live all over the world. Now, Github’s ToS do include the usual provision stating that US & California law applies, et cætera, et cætera [1], but… and even they acknowledge it may be the case, such provisions usually aren’t considered legal outside of the US. So… developers from outside the US, in countries with less lenient exceptions to copyright, definitely could sue them. Identifying these countries and finding those developers, however, is a different matter altogether. [1]: https://docs.github.com/en/github/site-policy/github-terms-of-service#1-governing-law https://docs.github.com/en/github/site-policy/github-terms-o...

RandomBK 5y ago

For any discussion on copyright and fair use, we should distinguish between the implications to Copilot the software itself and the implications to users of Copilot. For Copilot itself, I do see the case for fair use, though it gets fuzzy should Microsoft ever start commercializing the feature. Nevertheless it remains to be seen whether ML training fits the same public policy benefits public libraries and free debate leverages to enable the fair use defense. For Copilot users, I don't see an easy defense. In your hypothetical, this would be akin to me going on Google books and copying snippets of copyrighted works for my own book. In the case of Google books, they explicitly call out the limits on how the material they publish can be used. I'm contrast, Copilot seems to be designed to encourage such copying, making it more worry some in comparison.

Talanes 5y ago
>In your hypothetical, this would be akin to me going on Google books and copying snippets of copyrighted works for my own book. A book completely written by pasting passages of other books would actually be a pretty interesting transformative work.
- BlueTemplar 5y ago
  Yeah, but a book like this would be an artistic work. While software is in this limbo between copyrights and patents...

croes 5y ago

Can you still apply Fair Use if they make Copilot a payed service?

random314 5y ago

If copilot was trained using the entirety of the linux kernel, wouldn't the neural network itself need to be GPLed, if not its output.

wilde 5y ago

I buy the argument about copilot itself and this comment. But when someone goes to release software that uses the output of Copilot, I fail to see how they wouldn’t be a GPL derivative work if enough source was used. Copilot is essentially really fancy copy/paste in that context.

lallysingh 5y ago

Assuming that Copilot's use of GPL'd code to provide snippets to a developer is fair use, what rights does the developer have to using that snippet?

alerighi 5y ago
Can you copy 10 lines of code from a open source project in your software? Yes you an, it's considered fair use. Nobody will ever sue for that. If it was, websites like StackOverflouw where developers post code probably taken by project with some restrictive license and other developer copy it in their projects would not exist. Copilot will not write an entire software module, it will provide you with snippets. I see using GPL code for training fair use. If a developer reads the source code of a project to take inspiration and possibly copy some small parts does it violate the license?

bdowling 5y ago

> ...the non-obvious thing for many developers is that fair use is an exception to copyright itself. More precisely, fair use is an affirmative defense to an claim of copyright infringement. A fair use defense basically says, "Yes, I am copying your copyrighted material and I don't have a license (or am exceeding a licensed use), but my usage is allowed under the fair use doctrine (codified in 17 USC 107 in US law)."

CapriciousCptl 5y ago

Does intent not matter? Pasting code for explanatory reasons and citing the source seems different than silently incorporating it directly into a commercial work product.

BlueTemplar 5y ago

> Fair use is an exception to copyright itself. And copyright itself is an exception to the normal state of things : the public domain, copyright being only a temporary monopoly.