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Given this fair use argument that the work is probably transformative enough here's what I'll be doing next. I'll take the Windows and Office source code, run i

Given this fair use argument that the work is probably transformative enough here's what I'll be doing next. I'll take the Windows and Office source code, run it through a decompiler and then train a neural network on that output. This sequence of steps should be at least as transformative of Microsoft's copyright as what Copilot is doing with the open-source corpus, probably much more so. I will then use that neural network to write patches for ReactOS and WINE. Since those projects are very weary of interaction with Microsoft copyrighted works could Microsoft Legal please publicly state their assurance that all this is perfectly legal use of their copyrights? Maybe that would help convince people.

invokestatic 5y ago
I've heard something similar in response to Copilot in another thread (something like offering a sum of money to Github if they train their model exclusively on the Windows NT source code). But I think the legal theory here is that Copilot is trained on many thousands of sources. If Copilot was trained on a single source, or even a small handful of sources, the derivative work claim becomes much stronger. When trained on many sources, it becomes much harder to claim that its a derivative of another work. Take for example a human. If I studied a bunch of different open-source projects, learned techniques from them, and implemented them in my own projects, is that a derivative work? Probably not. But if I were to reverse engineer Windows and implement the techniques I saw in ReactOS, that's where it seems issues start to arise.
- pedrocr 5y ago
  So I just need to decompile Oracle's database and a few other commercial products as well and I'm good? Is Microsoft legal happy if I do Windows+Office+OpenSourceCorpus? I'd take that statement as well. Or even if they just do that themselves and train Copilot on their internal source code just as they do with the public open-source corpus. That would be a strong statement as well.
- klyrs 5y ago
  > When trained on many sources, it becomes much harder to claim that its a derivative of another work. Sounds good in theory, until it starts producing snippets verbatim from uniquely-identifiable sources.
- breischl 5y ago
  >If I studied a bunch of different open-source projects, learned techniques from them, and implemented them in my own projects, is that a derivative work? Probably not. That's pretty unclear actually. If it's quite close to the original work, it is derivative. Even though you have probably been "trained" on quite a few different codebases over the years. Hence the existence of clean-room implementations, wherein the people building a new implementation have never seen the original. Also, given that code that has been passed through a biological network (ie, brain) can constitute infringement, it seems obvious that code passed through a mechanical one could too. Maybe not in every case, but it certainly seems plausible.
- heavyset_go 5y ago
  You're taking the machine learning metaphor literally. Training an ML model is not the same thing as a human being learning off of material. A human being can understand abstract concepts and reason about them based on material they learn from. An ML model is a statistical model that is closer to compilation or lossy encoding or compression. Often, ML models can encode their training data verbatim in the model itself, which is exactly what happened with Copilot and this example[1]. [1] https://twitter.com/mitsuhiko/status/1410886329924194309 https://twitter.com/mitsuhiko/status/1410886329924194309
- erhk 5y ago
  Well i could certainly construct a data set wjere windows NT is an atomic outlier and muddy the water with arbitrary inputs to satisy your irrelevant requirement. Perhaps ill jam some pictures of cows in, or any nubmber or animal photos. Maybe even some classical literature. Hell, maybe i even just jam a shit ton of Javascript in. Thats code right?
ghoward 5y ago
I am doing something very similar: https://twitter.com/GavinDHoward/status/1415380847537135620 https://twitter.com/GavinDHoward/status/1415380847537135620 . We'll see if they answer.
- UncleMeat 5y ago
  Why the heck would microsoft ignoring you somehow create legal precedent?
  - ghoward 5y ago
    Declining to sue in this case, when I have publicly said what I am going to do, shows other companies that Microsoft is ignoring the threat to closed source software that this poses. So while it would not be a legal precedent, it would be a social one that would be fought against by other companies.
EamonnMR 5y ago
Might be faster to generate verbatim copies of Disney IP.
UncleMeat 5y ago
> I'll take the Windows and Office source code, run it through a decompiler and then train a neural network on that output. At the risk of adding another uneducated voice onto this legal discussion - the law is not written like code. Judges can absolutely say "hey asshole, we know exactly what you are doing" even though engineers like to imagine that all situations that use the same technical processes will be handled in precisely the same manner.
- pedrocr 5y ago
  What asshole thing would I exactly be doing? The scenario I described isn't a weird hypothetical to exercise the law as code. It would be a genuinely useful use of the Microsoft copyrights if that was allowed, just like Copilot is a genuinely useful use of the open-source copyrights. You just can't have one without the other.
  - UncleMeat 5y ago
    You are starting with the goal of recreating windows source and will produce a ton of it, rather than using the tool for another purpose and accidentally obtaining a small amount copyrighted code. The starting intentions are obviously different.
    - pedrocr 5y ago
      My version of the tool doesn't even create original code as it doesn't have access to it. If the difference between the two uses is how much verbatim, obviously infringing code, gets created, then Copilot has much bigger issues. The point of my hypothetical wasn't to whitewash stealing Microsoft code in some kind of legal quirk. It was to point out that if learning the structure of code with this kind of ML model is fair use then doing so with Microsoft copyrights is also useful for other purposes. And if Microsoft themselves think that is ok it would actually be a strong argument in this discussion. I suspect they don't and was pointing that out.

invokestatic 5y ago

I've heard something similar in response to Copilot in another thread (something like offering a sum of money to Github if they train their model exclusively on the Windows NT source code). But I think the legal theory here is that Copilot is trained on many thousands of sources. If Copilot was trained on a single source, or even a small handful of sources, the derivative work claim becomes much stronger. When trained on many sources, it becomes much harder to claim that its a derivative of another work. Take for example a human. If I studied a bunch of different open-source projects, learned techniques from them, and implemented them in my own projects, is that a derivative work? Probably not. But if I were to reverse engineer Windows and implement the techniques I saw in ReactOS, that's where it seems issues start to arise.

pedrocr 5y ago
So I just need to decompile Oracle's database and a few other commercial products as well and I'm good? Is Microsoft legal happy if I do Windows+Office+OpenSourceCorpus? I'd take that statement as well. Or even if they just do that themselves and train Copilot on their internal source code just as they do with the public open-source corpus. That would be a strong statement as well.
klyrs 5y ago
> When trained on many sources, it becomes much harder to claim that its a derivative of another work. Sounds good in theory, until it starts producing snippets verbatim from uniquely-identifiable sources.
breischl 5y ago
>If I studied a bunch of different open-source projects, learned techniques from them, and implemented them in my own projects, is that a derivative work? Probably not. That's pretty unclear actually. If it's quite close to the original work, it is derivative. Even though you have probably been "trained" on quite a few different codebases over the years. Hence the existence of clean-room implementations, wherein the people building a new implementation have never seen the original. Also, given that code that has been passed through a biological network (ie, brain) can constitute infringement, it seems obvious that code passed through a mechanical one could too. Maybe not in every case, but it certainly seems plausible.
heavyset_go 5y ago
You're taking the machine learning metaphor literally. Training an ML model is not the same thing as a human being learning off of material. A human being can understand abstract concepts and reason about them based on material they learn from. An ML model is a statistical model that is closer to compilation or lossy encoding or compression. Often, ML models can encode their training data verbatim in the model itself, which is exactly what happened with Copilot and this example[1]. [1] https://twitter.com/mitsuhiko/status/1410886329924194309 https://twitter.com/mitsuhiko/status/1410886329924194309
erhk 5y ago
Well i could certainly construct a data set wjere windows NT is an atomic outlier and muddy the water with arbitrary inputs to satisy your irrelevant requirement. Perhaps ill jam some pictures of cows in, or any nubmber or animal photos. Maybe even some classical literature. Hell, maybe i even just jam a shit ton of Javascript in. Thats code right?

ghoward 5y ago

I am doing something very similar: https://twitter.com/GavinDHoward/status/1415380847537135620 https://twitter.com/GavinDHoward/status/1415380847537135620 . We'll see if they answer.

UncleMeat 5y ago
Why the heck would microsoft ignoring you somehow create legal precedent?
- ghoward 5y ago
  Declining to sue in this case, when I have publicly said what I am going to do, shows other companies that Microsoft is ignoring the threat to closed source software that this poses. So while it would not be a legal precedent, it would be a social one that would be fought against by other companies.

EamonnMR 5y ago

Might be faster to generate verbatim copies of Disney IP.

UncleMeat 5y ago

> I'll take the Windows and Office source code, run it through a decompiler and then train a neural network on that output. At the risk of adding another uneducated voice onto this legal discussion - the law is not written like code. Judges can absolutely say "hey asshole, we know exactly what you are doing" even though engineers like to imagine that all situations that use the same technical processes will be handled in precisely the same manner.

pedrocr 5y ago
What asshole thing would I exactly be doing? The scenario I described isn't a weird hypothetical to exercise the law as code. It would be a genuinely useful use of the Microsoft copyrights if that was allowed, just like Copilot is a genuinely useful use of the open-source copyrights. You just can't have one without the other.
- UncleMeat 5y ago
  You are starting with the goal of recreating windows source and will produce a ton of it, rather than using the tool for another purpose and accidentally obtaining a small amount copyrighted code. The starting intentions are obviously different.
  - pedrocr 5y ago
    My version of the tool doesn't even create original code as it doesn't have access to it. If the difference between the two uses is how much verbatim, obviously infringing code, gets created, then Copilot has much bigger issues. The point of my hypothetical wasn't to whitewash stealing Microsoft code in some kind of legal quirk. It was to point out that if learning the structure of code with this kind of ML model is fair use then doing so with Microsoft copyrights is also useful for other purposes. And if Microsoft themselves think that is ok it would actually be a strong argument in this discussion. I suspect they don't and was pointing that out.