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> It's mildly interesting that you've decided to express your personal opinion about what is or is not fair use within in your license text, but the fact is tha

> It's mildly interesting that you've decided to express your personal opinion about what is or is not fair use within in your license text, but the fact is that if a use of the work is deemed to be fair use under the law then the terms of the license you're offering are completely irrelevant. Your permission is not required to make fair use of the work, so no one needs to agree to your license. You do not seem to get it. Yes, I understand that if fair use applies, my licenses don't matter. I get that. I promise I do get that. The purpose of these licenses is to sow doubt that fair use applies to distributing the output of ML models. Lawyers are usually a cautious lot. If a legal question has not been answered, they usually want to stay away from any possibility of legal risk regarding that question. The licenses create a question: does fair use apply to the output of ML algorithms? With that question not answered, lawyers and their companies might elect to stay away from ML models trained with my code, and ML companies might stay away from training ML models on my code in the first place. That is what I mean by "poisoning the well." The poison is doubt about the legality of distributing the output of ML models, and it is meant to put a damper on enthusiasm for code being used to train ML models, especially for my code.

nybble41 5y ago
It still amounts to an opinion statement in the license text which has no real bearing on the license. I was trying to be charitable, but your clarification makes it seem even more like you're just trying to spread unsubstantiated FUD in hopes of scaring people away from using your code as input to ML models even when that would be fair use. Which seems to me to be vaguely akin to fraud. Moreover, the license seems like a poor choice of venue to express your opinion since those you're most interested in dissuading (e.g. people using lots of different projects as input to their ML models, without investigating the details of each one) are also the least likely to bother reading it. In terms of raising awareness of how copyright might apply to the output of ML models you'd do better to post your opinions on a blog somewhere and leave the license text for things that can actually be affected by a license.
- ghoward 5y ago
  Oh, it seems you have not read the licenses because only what can affect the license is in the license. The relevant part of the license is the definition of the covered work, which basically says that the output of any algorithm that uses copyrighted code as input is under the same license. It's wonderfully broad and general IMO. As for my intent, that is published as FAQ's alongside the licenses, but not as part of the license text itself. And yes, I am trying to spread FUD. That's the point. Spreading FUD is not necessarily a bad thing, especially in the legal realm against big megacorps.
  - nybble41 5y ago
    > The relevant part of the license is the definition of the covered work, which basically says that the output of any algorithm that uses copyrighted code as input is under the same license. In other words, you are granting unnecessary additional permission to use the output of an ML algorithm trained on the copyrighted code under the terms of the same license, when your permission was not required if the use of that output was already covered by fair use. If the use is not considered fair use—if the output would be deemed a derivative work under copyright law—then this license is beneficial to the developers of ML systems like Copilot since it explicitly grants them permission to use the output under the same terms. In the best case it's fair use and your license is irrelevant, and in the worst case your license grants them a path to proceed anyway, with a few extra rules to follow. Under no circumstances can anything you write in the licence expand the reach of the copyright you have in the original code, no matter how "wonderfully broad and general" the license may be. Reading through the licenses and FAQs on your site did not improve my opinion of them in the slightest. Especially the part where you attempted to equate what Copilot does with trivial processing of the source code, e.g. with an editor, to argue that classifying the use of any output from an ML algorithm trained on copyrighted inputs as fair use is equivalent to eliminating copyright on software. The reality is of course much more nuanced. Certainly if the ML algorithm merely reproduces a portion of its input from some identifiable source, including non-trivial creative elements to which copyright could reasonably be applied, then the fact that the process involved an ML algorithm does not preclude a claim of infringement, and it would be reasonable to apply something like a plagiarism checker to the ML output to protect the user from accidental copying. However, the purpose of an ML system like Copilot is synthesis, extracting common (and thus non-creative) elements from many sources and applying them in a new context, the same as any human programmer studying a variety of existing codebases and subsequently writing their own code. The reproduction of these common elements in the ML output can be fair use without impacting the copyrights on the original inputs. The real question here is why I'm wasting my time attempting a good-faith debate with someone who thinks that "spreading FUD is not necessarily a bad thing…".

nybble41 5y ago

It still amounts to an opinion statement in the license text which has no real bearing on the license. I was trying to be charitable, but your clarification makes it seem even more like you're just trying to spread unsubstantiated FUD in hopes of scaring people away from using your code as input to ML models even when that would be fair use. Which seems to me to be vaguely akin to fraud. Moreover, the license seems like a poor choice of venue to express your opinion since those you're most interested in dissuading (e.g. people using lots of different projects as input to their ML models, without investigating the details of each one) are also the least likely to bother reading it. In terms of raising awareness of how copyright might apply to the output of ML models you'd do better to post your opinions on a blog somewhere and leave the license text for things that can actually be affected by a license.

ghoward 5y ago
Oh, it seems you have not read the licenses because only what can affect the license is in the license. The relevant part of the license is the definition of the covered work, which basically says that the output of any algorithm that uses copyrighted code as input is under the same license. It's wonderfully broad and general IMO. As for my intent, that is published as FAQ's alongside the licenses, but not as part of the license text itself. And yes, I am trying to spread FUD. That's the point. Spreading FUD is not necessarily a bad thing, especially in the legal realm against big megacorps.
- nybble41 5y ago
  > The relevant part of the license is the definition of the covered work, which basically says that the output of any algorithm that uses copyrighted code as input is under the same license. In other words, you are granting unnecessary additional permission to use the output of an ML algorithm trained on the copyrighted code under the terms of the same license, when your permission was not required if the use of that output was already covered by fair use. If the use is not considered fair use—if the output would be deemed a derivative work under copyright law—then this license is beneficial to the developers of ML systems like Copilot since it explicitly grants them permission to use the output under the same terms. In the best case it's fair use and your license is irrelevant, and in the worst case your license grants them a path to proceed anyway, with a few extra rules to follow. Under no circumstances can anything you write in the licence expand the reach of the copyright you have in the original code, no matter how "wonderfully broad and general" the license may be. Reading through the licenses and FAQs on your site did not improve my opinion of them in the slightest. Especially the part where you attempted to equate what Copilot does with trivial processing of the source code, e.g. with an editor, to argue that classifying the use of any output from an ML algorithm trained on copyrighted inputs as fair use is equivalent to eliminating copyright on software. The reality is of course much more nuanced. Certainly if the ML algorithm merely reproduces a portion of its input from some identifiable source, including non-trivial creative elements to which copyright could reasonably be applied, then the fact that the process involved an ML algorithm does not preclude a claim of infringement, and it would be reasonable to apply something like a plagiarism checker to the ML output to protect the user from accidental copying. However, the purpose of an ML system like Copilot is synthesis, extracting common (and thus non-creative) elements from many sources and applying them in a new context, the same as any human programmer studying a variety of existing codebases and subsequently writing their own code. The reproduction of these common elements in the ML output can be fair use without impacting the copyrights on the original inputs. The real question here is why I'm wasting my time attempting a good-faith debate with someone who thinks that "spreading FUD is not necessarily a bad thing…".