5 ms·

The entire point of a fair use right is that you don’t need the copyright owner’s permission to be able to exercise it. Fair use allows you to do things that th

The entire point of a fair use right is that you don’t need the copyright owner’s permission to be able to exercise it. Fair use allows you to do things that the copyright owner doesn’t like. Is fair use on a massive scale still fair use? Courts generally think so, otherwise Google would have been out of business a long time ago.

meheleventyone 4y ago
Is this fair use? I don't think that's been established yet. And if it is why didn't MS and OpenAI train it on their private code repositories? Fair use for thee not for me isn't very in keeping with the spirit of that claim.
- jimnotgym 4y ago
  Just because there has not been a test case yet does not make it illegal! If MS think it is fair use then they are free to go ahead. Business is all about recognising and assesing risks like this.
  - tremon 4y ago
    And even if there had been a legal test case, that does not make it moral! If people think this is socially wrong then they're free to argue their case. Business is all about ignoring ethical quandaries if it gives them an edge. "Microsoft does it, therefore it must be right" does not a sound argument make.
    - aaaaaaaaata 4y ago
      > Business is all about ignoring ethical quandaries No, businesses are — not business. Not necessarily...
  - jtdev 4y ago
- jimnotgym 4y ago
  I sometimes read people's open source code on github and use the ideas from that to develop my own ideas. In fact sometimes I copy and paste short passages and then rework them. I also employ a team of people who may do the same. Is that fair use, yes of course it is. Is co-pilot automating that fair use, I would say so.
  - aahortwwy 4y ago
    Microsoft's internal policies don't allow their employees to do this without legal approval.
    - aaaaaaaaata 4y ago
      So they don't ask.
      - leereeves 4y ago
        I think aahortwwy's point was that Microsoft won't permit their own employees to do what Copilot does.
  - nirvdrum 4y ago
    Many people would claim what you're doing is a derivative work. I'm not sure the "of course it is" is very clear-cut (at least in the US). I've worked at big companies that have lawyers that care very much about this topic and what you're describing is prohibited. But, maybe it's different if you're not distributing your source.
    - zarzavat 4y ago
      > I've worked at big companies that have lawyers that care very much about this topic and what you're describing is prohibited. They are doing this to make sure that any lawsuit can be easily dismissed. It has nothing to do with the legality of the action (which sounds like fair use as the parent described it), and everything to do with the expense of a potential lawsuit compared to the cost effectiveness of simply telling developers “don’t do that”. Most people think that the law has two shades: lawful vs unlawful. But the more practical distinction is expensive lawsuit vs dismissed lawsuit. This is the lens through which corporate lawyers see copyright and it might explain why so many programmers think that copilot is “obviously” breaking the law and “stealing” their code.
- matharmin 4y ago
  For public repositories, whether copying small parts of code is considered fair use is just a copyright question. On the other hand, if you copy from private repositories, it quickly gets into the territory of stealing trade secrets.
- komadori 4y ago
  Gosh, can you imagine if they had trained it on their internal source code repositories and it constantly suggested using Hungarian notation for your variables? ;-)
Hamuko 4y ago
What about us that are not Americans?
- zarzavat 4y ago
  Then you need to check the laws in your country. But that is nothing new to copilot. Copyright laws vary significantly from country to country.
  - rurban 4y ago
    Not really. They are mostly the same across countries: https://en.wikipedia.org/wiki/International_copyright_treaties https://en.wikipedia.org/wiki/International_copyright_treati... There are just minor deviances, not relevant to this case, such as how long Disney bullied the countries to protect a work. Software is usually considered a work. The AI needs to know if has permissions to copy and use the code, and then offer derived work on the proper terms and conditions. copilot doesn't do that. It might copy GPL code into non-GPL code, thus violating the GPL license, thus being an extreme risk.
    - tzs 4y ago
      What are examples of Disney getting countries to extend copyright terms? In the US there have only been two extensions of copyright terms since Disney came into existence. The first was in 1976, as part of a major overhaul of US copyright law to update the previous law (from 1909) to take into account the large changes in technology since then, and to make US law work more like the rest of the world to pave the way for the US later joining the Berne Convention. The changes for Berne compatibility included longer terms. I assume Disney did support this, but only because as far as I can tell it had pretty widespread support. It had enough support that it would have passed even if Disney had adamantly opposed it. The second was in 1998, and that was specifically a term expansion (as opposed to a term expansion like that of 1976 that was a side effect of harmonizing US law with the rest of the world). Europe had expanded terms a few years earlier, so the 1998 change in the US might have been motivated at least in part by harmonization, but I don't think the differences in terms between the US and the EU would have been enough to get it passed without some major interests pushing for it, so it is probably fair to give Disney a good part of the credit or blame for this one.
jrumbut 4y ago
I don't think releasing a commercial product that copies people's code without complying with the license is anywhere near fair use. Also, the open source community has far less leverage to apply pressure to Google than it does to GitHub. We may be able to do something about this.
- CrazyStat 4y ago
  > I don't think releasing a commercial product that copies people's code without complying with the license is anywhere near fair use. The whole point of fair use is that the license doesn't matter. You can have a license that says I'm not allowed to use what you wrote for any purpose ever and I can still use it under fair use.
  - jrumbut 4y ago
    Yes but among the four factors that are used to evaluate fair use claims are whether it is being used commercially (it is) and how it affects the market for the thing that was copied (it clearly would since one way code is used is being imported by other code, if Copilot didn't insert my code into the new app, they might very well use my open source project that provides the same code).
    - CrazyStat 4y ago
      I wasn't staking a position on whether Copilot is fair use, just pointing out that fair use doesn't care about license. That said, copilot itself is not a replacement for your open source project that it was trained on. The code it generates may or may not be, but that's probably not Github's problem as far as copyright law is concerned.
  - Longlius 4y ago
    IANAL but fair use is primarily about the public interest. What public interest is served by allowing proprietary software vendors to copy GPL code that's reserved for the commons? I don't really think this argument passes muster.
- 4y ago
lupire 4y ago
"on a massive scale" is one of the legal definitions of unfair use.
izacus 4y ago
Unless Copilot is "commenting" or "parodying" the code you've wrote, it's not fair use. Copying and using the code in another project sure as heck IS NOT fair use.
akagusu 4y ago
When co-pilot reproduce substantial parts of someone else code without respecting the license terms, it is not fair use,it is just a disguised license abuse.
kybernetikos 4y ago
> otherwise Google would have been out of business a long time ago. I do think there are ethical questions around whether it's right for google to digitise physical books without the permission of the authors, and keep them on their servers and make money from them without recompensing the authors. That's something an individual would not get away with doing, so it seems wrong that it's OK for google.
bayindirh 4y ago
An automated system will devour all my code, which is under a case-tested copyleft license, and regenerate its parts in any place, without respecting the license terms, and call it "fair use". I have two questions: 1. Why have licenses, then? 2. What if I just use leaked sources of closed source software and call it fair use?
- zarzavat 4y ago
  1. Why have licenses, then? The default under copyright law is that any substantial copy is infringement. A license is a legal document that grants someone permission to use a work that they otherwise would not have had. However the law also gives its own permissions to use a work - it defines what is unlawful infringement and what is lawful fair use. The code snippets that copilot generates look more like fair use than infringement. They are small, adapted to the destination context, and usually not direct copies of one source but more of an average of many different sources. And usually the programmer does not keep the suggestion that copilot suggests unmodified - the programmer does their own editing of the snippet afterwards to further tune it to the surrounding context. 2. What if I just use leaked sources of closed source software and call it fair use? As pointed out upthread, if it the source code is leaked then there may be trade secret protections. The GPL specifically allows the code to be posted online, so by design it is not secret.
  - bayindirh 4y ago
    > As pointed out upthread, if it the source code is leaked then there may be trade secret protections. The GPL specifically allows the code to be posted online, so by design it is not secret. The reverse maybe true. I may be GPL'ing a code to prevent a useful algorithm from being buried deep inside a commercial code with an incompatible license. What makes it a "trade secret" level code? I have a 25 line algorithm which is worthy of its own paper. What if I open its reference implementation with AGPLv3+? I have no problems with you reading the paper, and implementing it. I don't obfuscate my papers, but I put the implementation out with AGPLv3+. You can't use that in a codebase with an incompatible license. I expect and want you respect the license of my implementation. > The code snippets that copilot generates look more like fair use than infringement. They are small, adapted to the destination context, and usually not direct copies of one source but more of an average of many different sources. And usually the programmer does not keep the suggestion that copilot suggests unmodified - the programmer does their own editing of the snippet afterwards to further tune it to the surrounding context. Emphasis mine. First, there's no consensus on fair use, yet. Second they may be direct copies of the code. Third, they're remixed with other code pieces, which makes it a derivative work of many code pieces at once, then lastly, programmer re-derives the derived work. Which is clearly a derivative of GPL code, which brings in GPL license with itself (if what copilot derives the code from GPL licensed repositories, which it does). I have no problem with Copilot as a technology. I have no problems with other licenses, which are not breached when used by Copilot and derived and used. The point which makes my blood boil is copilot using this GPL corpus, and don't admitting it publicly, breaching the terms of GPL en masse, and outright ignoring it. Then feeding this GPL derived code to any and all projects which pay for a copilot membership, and calling it a day.
dkersten 4y ago
Fair use is quite narrowly defined though. This doesn’t look like fair use to me, especially when its been shown that copilot does, at least sometimes, spit out code that is completely unchanged from the source material, without advising the user of any license requirements (most permissive licenses require at least attribution). The SCO vs IBM lawsuit was over only a few lines of code, after all. I cant use a derivative of Mickey Mouse in my product, even if I change his colour and give him a hat, even if these changes were made by an AI. Why would it be different for code? I cab only use Mickey Mouse as fair use if its done for a specific barrow set of proposes (satire, news reporting etc).

meheleventyone 4y ago

Is this fair use? I don't think that's been established yet. And if it is why didn't MS and OpenAI train it on their private code repositories? Fair use for thee not for me isn't very in keeping with the spirit of that claim.

jimnotgym 4y ago
Just because there has not been a test case yet does not make it illegal! If MS think it is fair use then they are free to go ahead. Business is all about recognising and assesing risks like this.
- tremon 4y ago
  And even if there had been a legal test case, that does not make it moral! If people think this is socially wrong then they're free to argue their case. Business is all about ignoring ethical quandaries if it gives them an edge. "Microsoft does it, therefore it must be right" does not a sound argument make.
  - aaaaaaaaata 4y ago
    > Business is all about ignoring ethical quandaries No, businesses are — not business. Not necessarily...
- jtdev 4y ago
jimnotgym 4y ago
I sometimes read people's open source code on github and use the ideas from that to develop my own ideas. In fact sometimes I copy and paste short passages and then rework them. I also employ a team of people who may do the same. Is that fair use, yes of course it is. Is co-pilot automating that fair use, I would say so.
- aahortwwy 4y ago
  Microsoft's internal policies don't allow their employees to do this without legal approval.
  - aaaaaaaaata 4y ago
    So they don't ask.
    - leereeves 4y ago
      I think aahortwwy's point was that Microsoft won't permit their own employees to do what Copilot does.
- nirvdrum 4y ago
  Many people would claim what you're doing is a derivative work. I'm not sure the "of course it is" is very clear-cut (at least in the US). I've worked at big companies that have lawyers that care very much about this topic and what you're describing is prohibited. But, maybe it's different if you're not distributing your source.
  - zarzavat 4y ago
    > I've worked at big companies that have lawyers that care very much about this topic and what you're describing is prohibited. They are doing this to make sure that any lawsuit can be easily dismissed. It has nothing to do with the legality of the action (which sounds like fair use as the parent described it), and everything to do with the expense of a potential lawsuit compared to the cost effectiveness of simply telling developers “don’t do that”. Most people think that the law has two shades: lawful vs unlawful. But the more practical distinction is expensive lawsuit vs dismissed lawsuit. This is the lens through which corporate lawyers see copyright and it might explain why so many programmers think that copilot is “obviously” breaking the law and “stealing” their code.
matharmin 4y ago
For public repositories, whether copying small parts of code is considered fair use is just a copyright question. On the other hand, if you copy from private repositories, it quickly gets into the territory of stealing trade secrets.
komadori 4y ago
Gosh, can you imagine if they had trained it on their internal source code repositories and it constantly suggested using Hungarian notation for your variables? ;-)

Hamuko 4y ago

What about us that are not Americans?

zarzavat 4y ago
Then you need to check the laws in your country. But that is nothing new to copilot. Copyright laws vary significantly from country to country.
- rurban 4y ago
  Not really. They are mostly the same across countries: https://en.wikipedia.org/wiki/International_copyright_treaties https://en.wikipedia.org/wiki/International_copyright_treati... There are just minor deviances, not relevant to this case, such as how long Disney bullied the countries to protect a work. Software is usually considered a work. The AI needs to know if has permissions to copy and use the code, and then offer derived work on the proper terms and conditions. copilot doesn't do that. It might copy GPL code into non-GPL code, thus violating the GPL license, thus being an extreme risk.
  - tzs 4y ago
    What are examples of Disney getting countries to extend copyright terms? In the US there have only been two extensions of copyright terms since Disney came into existence. The first was in 1976, as part of a major overhaul of US copyright law to update the previous law (from 1909) to take into account the large changes in technology since then, and to make US law work more like the rest of the world to pave the way for the US later joining the Berne Convention. The changes for Berne compatibility included longer terms. I assume Disney did support this, but only because as far as I can tell it had pretty widespread support. It had enough support that it would have passed even if Disney had adamantly opposed it. The second was in 1998, and that was specifically a term expansion (as opposed to a term expansion like that of 1976 that was a side effect of harmonizing US law with the rest of the world). Europe had expanded terms a few years earlier, so the 1998 change in the US might have been motivated at least in part by harmonization, but I don't think the differences in terms between the US and the EU would have been enough to get it passed without some major interests pushing for it, so it is probably fair to give Disney a good part of the credit or blame for this one.

jrumbut 4y ago

I don't think releasing a commercial product that copies people's code without complying with the license is anywhere near fair use. Also, the open source community has far less leverage to apply pressure to Google than it does to GitHub. We may be able to do something about this.

CrazyStat 4y ago
> I don't think releasing a commercial product that copies people's code without complying with the license is anywhere near fair use. The whole point of fair use is that the license doesn't matter. You can have a license that says I'm not allowed to use what you wrote for any purpose ever and I can still use it under fair use.
- jrumbut 4y ago
  Yes but among the four factors that are used to evaluate fair use claims are whether it is being used commercially (it is) and how it affects the market for the thing that was copied (it clearly would since one way code is used is being imported by other code, if Copilot didn't insert my code into the new app, they might very well use my open source project that provides the same code).
  - CrazyStat 4y ago
    I wasn't staking a position on whether Copilot is fair use, just pointing out that fair use doesn't care about license. That said, copilot itself is not a replacement for your open source project that it was trained on. The code it generates may or may not be, but that's probably not Github's problem as far as copyright law is concerned.
- Longlius 4y ago
  IANAL but fair use is primarily about the public interest. What public interest is served by allowing proprietary software vendors to copy GPL code that's reserved for the commons? I don't really think this argument passes muster.
4y ago

lupire 4y ago

"on a massive scale" is one of the legal definitions of unfair use.

izacus 4y ago

Unless Copilot is "commenting" or "parodying" the code you've wrote, it's not fair use. Copying and using the code in another project sure as heck IS NOT fair use.

akagusu 4y ago

When co-pilot reproduce substantial parts of someone else code without respecting the license terms, it is not fair use,it is just a disguised license abuse.

kybernetikos 4y ago

> otherwise Google would have been out of business a long time ago. I do think there are ethical questions around whether it's right for google to digitise physical books without the permission of the authors, and keep them on their servers and make money from them without recompensing the authors. That's something an individual would not get away with doing, so it seems wrong that it's OK for google.

bayindirh 4y ago

An automated system will devour all my code, which is under a case-tested copyleft license, and regenerate its parts in any place, without respecting the license terms, and call it "fair use". I have two questions: 1. Why have licenses, then? 2. What if I just use leaked sources of closed source software and call it fair use?

zarzavat 4y ago
1. Why have licenses, then? The default under copyright law is that any substantial copy is infringement. A license is a legal document that grants someone permission to use a work that they otherwise would not have had. However the law also gives its own permissions to use a work - it defines what is unlawful infringement and what is lawful fair use. The code snippets that copilot generates look more like fair use than infringement. They are small, adapted to the destination context, and usually not direct copies of one source but more of an average of many different sources. And usually the programmer does not keep the suggestion that copilot suggests unmodified - the programmer does their own editing of the snippet afterwards to further tune it to the surrounding context. 2. What if I just use leaked sources of closed source software and call it fair use? As pointed out upthread, if it the source code is leaked then there may be trade secret protections. The GPL specifically allows the code to be posted online, so by design it is not secret.
- bayindirh 4y ago
  > As pointed out upthread, if it the source code is leaked then there may be trade secret protections. The GPL specifically allows the code to be posted online, so by design it is not secret. The reverse maybe true. I may be GPL'ing a code to prevent a useful algorithm from being buried deep inside a commercial code with an incompatible license. What makes it a "trade secret" level code? I have a 25 line algorithm which is worthy of its own paper. What if I open its reference implementation with AGPLv3+? I have no problems with you reading the paper, and implementing it. I don't obfuscate my papers, but I put the implementation out with AGPLv3+. You can't use that in a codebase with an incompatible license. I expect and want you respect the license of my implementation. > The code snippets that copilot generates look more like fair use than infringement. They are small, adapted to the destination context, and usually not direct copies of one source but more of an average of many different sources. And usually the programmer does not keep the suggestion that copilot suggests unmodified - the programmer does their own editing of the snippet afterwards to further tune it to the surrounding context. Emphasis mine. First, there's no consensus on fair use, yet. Second they may be direct copies of the code. Third, they're remixed with other code pieces, which makes it a derivative work of many code pieces at once, then lastly, programmer re-derives the derived work. Which is clearly a derivative of GPL code, which brings in GPL license with itself (if what copilot derives the code from GPL licensed repositories, which it does). I have no problem with Copilot as a technology. I have no problems with other licenses, which are not breached when used by Copilot and derived and used. The point which makes my blood boil is copilot using this GPL corpus, and don't admitting it publicly, breaching the terms of GPL en masse, and outright ignoring it. Then feeding this GPL derived code to any and all projects which pay for a copilot membership, and calling it a day.

dkersten 4y ago

Fair use is quite narrowly defined though. This doesn’t look like fair use to me, especially when its been shown that copilot does, at least sometimes, spit out code that is completely unchanged from the source material, without advising the user of any license requirements (most permissive licenses require at least attribution). The SCO vs IBM lawsuit was over only a few lines of code, after all. I cant use a derivative of Mickey Mouse in my product, even if I change his colour and give him a hat, even if these changes were made by an AI. Why would it be different for code? I cab only use Mickey Mouse as fair use if its done for a specific barrow set of proposes (satire, news reporting etc).