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

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.