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> 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

> 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
    - ghoward 5y ago
      Totally relevant: https://en.wikipedia.org/wiki/Fair_use#1._Purpose_and_character_of_the_use https://en.wikipedia.org/wiki/Fair_use#1._Purpose_and_charac... .
    - zelphirkalt 5y ago
      Irrelevant to GPL maybe.
  - tshaddox 5y ago
    > 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? Again, fair use is an exception to copyright protection. If something is fair use, the license does not apply. The fact that Copilot does not release its source code is related only to a specific term of a specific license, which does not apply if Copilot is indeed fair use.
IgorPartola 5y ago
If you view GPL code with your browser would that mean that your browser now has to be GPL as well? In the sense that copilot is not much different than a browser for Stack Overflow with some automation, why would it need to be GPLed? Your own code on the other hand…
- keonix 5y ago
  To build a browser you don't need a verbatim GPL code, so it's not a derivative work in the same sense copilot is. Stackoverflow on the other hand is much trickier question...
  - IgorPartola 5y ago
    SO clearly doesn’t need GPL code to be useful. The wider SE network is evidence of that.
- dpe82 5y ago
  Or if you simply read GPL code and learn something from it - or bits of the code are retained verbatim in your memory, are you (as a person) now GPL'd? Obviously not.
  - zelphirkalt 5y ago
    That probably depends on how large and how significant the bits you remember are. Otherwise one could take a person with photographic memory and circumvent all GPL licenses easily, by making that person type what they remember.
  - jcelerier 5y ago
    > Or if you simply read GPL code and learn something from it - or bits of the code are retained verbatim in your memory, are you (as a person) now GPL'd? Obviously not. I do not find that to be obvious at all.
    - dpe82 5y ago
arianvanp 5y ago
Google did not scan those books and use it to build new books with different titles. The comparison doesn't hold up at all.
- _Understated_ 5y ago
  > Google did not scan those books and use it to build new books with different titles. The comparison doesn't hold up at all. Not sure if you meant to reply to me but I agree with you: you can't compare what Google did to what Copilot does.
  - PieUser 5y ago
    Copilot just suggests code.
    - MadcapJake 5y ago
      If I suggest whole lines of dialogue to you, the screenwriter, did I write those lines or you? If you change names in those lines of dialogue to fit your story, do you now gain credit for writing those lines? Suggesting code is generating code
      - midev 5y ago
        > did I write those lines or you Neither. Someone else did, and published it. Copilot copied the dialog and suggested it. > If you change names in those lines of dialogue to fit your story, do you now gain credit for writing those lines? It depends. Talking generalities isn't productive or interesting. Can you give an example and we can discuss specifics? > Suggesting code is generating code This isn't even superficially true
    - kroltan 5y ago
      And someone accepts it. Even if suggesting derivatives of licensed code is not a license infringement, then Copilot sure is a vector for mass license infringement by the people clicking "Accept suggestion". And those people are unable to know (without doing extensive investigation that completely nullifies the point of the tool) whether that suggestion is potentially a verbatim copy of some existing work in an incompatible license.
AaronFriel 5y ago
I've edited my comment with examples and a clarification. Fair use is an exception to copyright and, by definition, copyright licenses.
- _Understated_ 5y ago
  I understand the concept of fair use (I think) but I can't see how it applies to Copilot. Google didn't create new books from the contents of existing ones (whether you agree that they should have been allowed to store the books or not) but Copilot is creating new code/apps from existing ones. Edit: I guess my understanding of fair use was wrong. I stand corrected.
  - AaronFriel 5y ago
    If Google Books were creating new books, that would only help their argument. Transformativeness is one of the four parts of the fair use test. Copilot producing new, novel works (which may contain short verbatim snippets of GPL works) is a strong argument for transformativeness.
    - FemmeAndroid 5y ago
      It would help the transformativeness, but it would substantially change the effect upon the market. By creating competing products with the copyrighted material, there is a higher degree of transformative, but you also end up disrupting the marketplace. I don't know how a court would decide this, but I do think the facts in future GPT-3 cases are sufficiently different from Author's Guild that I could see it going any way. Plus, I think the prevalence of GPT-3 and the ramifications of the ruling one way or another could lead some future case to be heard by the Supreme Court. A similar case could come up in California, or another state where the 2nd Circuit Artist Guild case isn't precedent.
    - peteradio 5y ago
      > short verbatim snippets of GPL works Define short
  - 5y ago
shadowgovt 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? If I'm Google, and I scan your code and return a link to it when people ask to find code like that (but show an ad next to that link for someone else's code that might solve their problem too), that's fair use and legal. My search engine has probably stored your code in a partial format, and that's fine.
- BlueTemplar 5y ago
  It's fine because a search engine is a generic tool the main purpose of which is not to replicate the code verbatim to be used as code.
nonfamous 5y ago
For your specific case, “take your hard work that you clearly marked with a GPL license and then make money from it”, you don’t even need to rely on fair use. As long as you comply with the terms of the GPL, making money with the code is perfectly acceptable, and the FSF even endorses the practice. [1] Red Hat is but one billion-dollar example. [1] https://www.gnu.org/licenses/gpl-faq.en.html#DoesTheGPLAllowMoney https://www.gnu.org/licenses/gpl-faq.en.html#DoesTheGPLAllow...
- b3morales 5y ago
  But the person making money from the GPL code has to follow the terms of the license. Attribution, sharing modifications, etc.
  - nonfamous 5y ago
    Correct. That's why I said "As long as you comply with the terms of the GPL".

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
  - ghoward 5y ago
    Totally relevant: https://en.wikipedia.org/wiki/Fair_use#1._Purpose_and_character_of_the_use https://en.wikipedia.org/wiki/Fair_use#1._Purpose_and_charac... .
  - zelphirkalt 5y ago
    Irrelevant to GPL maybe.
- tshaddox 5y ago
  > 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? Again, fair use is an exception to copyright protection. If something is fair use, the license does not apply. The fact that Copilot does not release its source code is related only to a specific term of a specific license, which does not apply if Copilot is indeed fair use.

IgorPartola 5y ago

If you view GPL code with your browser would that mean that your browser now has to be GPL as well? In the sense that copilot is not much different than a browser for Stack Overflow with some automation, why would it need to be GPLed? Your own code on the other hand…

keonix 5y ago
To build a browser you don't need a verbatim GPL code, so it's not a derivative work in the same sense copilot is. Stackoverflow on the other hand is much trickier question...
- IgorPartola 5y ago
  SO clearly doesn’t need GPL code to be useful. The wider SE network is evidence of that.
dpe82 5y ago
Or if you simply read GPL code and learn something from it - or bits of the code are retained verbatim in your memory, are you (as a person) now GPL'd? Obviously not.
- zelphirkalt 5y ago
  That probably depends on how large and how significant the bits you remember are. Otherwise one could take a person with photographic memory and circumvent all GPL licenses easily, by making that person type what they remember.
- jcelerier 5y ago
  > Or if you simply read GPL code and learn something from it - or bits of the code are retained verbatim in your memory, are you (as a person) now GPL'd? Obviously not. I do not find that to be obvious at all.
  - dpe82 5y ago

arianvanp 5y ago

Google did not scan those books and use it to build new books with different titles. The comparison doesn't hold up at all.

_Understated_ 5y ago
> Google did not scan those books and use it to build new books with different titles. The comparison doesn't hold up at all. Not sure if you meant to reply to me but I agree with you: you can't compare what Google did to what Copilot does.
- PieUser 5y ago
  Copilot just suggests code.
  - MadcapJake 5y ago
    If I suggest whole lines of dialogue to you, the screenwriter, did I write those lines or you? If you change names in those lines of dialogue to fit your story, do you now gain credit for writing those lines? Suggesting code is generating code
    - midev 5y ago
      > did I write those lines or you Neither. Someone else did, and published it. Copilot copied the dialog and suggested it. > If you change names in those lines of dialogue to fit your story, do you now gain credit for writing those lines? It depends. Talking generalities isn't productive or interesting. Can you give an example and we can discuss specifics? > Suggesting code is generating code This isn't even superficially true
  - kroltan 5y ago
    And someone accepts it. Even if suggesting derivatives of licensed code is not a license infringement, then Copilot sure is a vector for mass license infringement by the people clicking "Accept suggestion". And those people are unable to know (without doing extensive investigation that completely nullifies the point of the tool) whether that suggestion is potentially a verbatim copy of some existing work in an incompatible license.

AaronFriel 5y ago

I've edited my comment with examples and a clarification. Fair use is an exception to copyright and, by definition, copyright licenses.

_Understated_ 5y ago
I understand the concept of fair use (I think) but I can't see how it applies to Copilot. Google didn't create new books from the contents of existing ones (whether you agree that they should have been allowed to store the books or not) but Copilot is creating new code/apps from existing ones. Edit: I guess my understanding of fair use was wrong. I stand corrected.
- AaronFriel 5y ago
  If Google Books were creating new books, that would only help their argument. Transformativeness is one of the four parts of the fair use test. Copilot producing new, novel works (which may contain short verbatim snippets of GPL works) is a strong argument for transformativeness.
  - FemmeAndroid 5y ago
    It would help the transformativeness, but it would substantially change the effect upon the market. By creating competing products with the copyrighted material, there is a higher degree of transformative, but you also end up disrupting the marketplace. I don't know how a court would decide this, but I do think the facts in future GPT-3 cases are sufficiently different from Author's Guild that I could see it going any way. Plus, I think the prevalence of GPT-3 and the ramifications of the ruling one way or another could lead some future case to be heard by the Supreme Court. A similar case could come up in California, or another state where the 2nd Circuit Artist Guild case isn't precedent.
  - peteradio 5y ago
    > short verbatim snippets of GPL works Define short
- 5y ago

shadowgovt 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? If I'm Google, and I scan your code and return a link to it when people ask to find code like that (but show an ad next to that link for someone else's code that might solve their problem too), that's fair use and legal. My search engine has probably stored your code in a partial format, and that's fine.

BlueTemplar 5y ago
It's fine because a search engine is a generic tool the main purpose of which is not to replicate the code verbatim to be used as code.

nonfamous 5y ago

For your specific case, “take your hard work that you clearly marked with a GPL license and then make money from it”, you don’t even need to rely on fair use. As long as you comply with the terms of the GPL, making money with the code is perfectly acceptable, and the FSF even endorses the practice. [1] Red Hat is but one billion-dollar example. [1] https://www.gnu.org/licenses/gpl-faq.en.html#DoesTheGPLAllowMoney https://www.gnu.org/licenses/gpl-faq.en.html#DoesTheGPLAllow...

b3morales 5y ago
But the person making money from the GPL code has to follow the terms of the license. Attribution, sharing modifications, etc.
- nonfamous 5y ago
  Correct. That's why I said "As long as you comply with the terms of the GPL".