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IANAL. My understanding is that the general legal precedent in the US is that a) datamining text has no copyright implications (in the same way that reading a b

by 542458 4y ago

IANAL. My understanding is that the general legal precedent in the US is that a) datamining text has no copyright implications (in the same way that reading a book has no copyright implications) and b) it is not a copyright violation to use a small amount of copyrighted material provided the context is sufficiently transformative. This might seem silly or unfair to you, but that is the current legal reality. But even ignoring that, everybody uploading code to GitHub has given GitHub the right to analyze that code as per the GitHub ToS. This is the same mechanism by which you can't upload code to GitHub with a license that says "nobody is allowed to display this code on the internet" and then sue GitHub.

aposm 4y ago
I can't imagine a scenario in which any lawyer would consider granting Github the right to "analyze" code anywhere close to granting Github the right to spit out that same code verbatim without your copyright notice (even if laundered by AI).
- 542458 4y ago
  Here's Kate Downing, an IP lawyer specializing in software license: > According to Downing, the answer depends to a certain extent on where that code is hosted. If it’s on GitHub, there very clearly would not be copyright infringement. > “If you look at the GitHub Terms of Service, no matter what license you use, you give GitHub the right to host your code and to use your code to improve their products and features,” Downing says. “So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward.” Downing cautions that copilot output of large chunks of code complete with comments are more questionable to use, but that for the most part it looks above board. https://fossa.com/blog/analyzing-legal-implications-github-copilot/ https://fossa.com/blog/analyzing-legal-implications-github-c... Here's an English lawyer on the same topic... > The licence is broadly worded, and I'm confident that there is scope for argument, but if it turns out that Github does not require a licence for its activities then, in respect of the code hosted on Github, I suspect it could make a reasonable case that the mandatory licence grant in its terms covers this as against the uploader. https://decoded.legal/blog/2021/06/github-copilot-initial-thoughts-from-an-english-law-perspective https://decoded.legal/blog/2021/06/github-copilot-initial-th...
  - Engineering-MD 4y ago
    To me regardless if it is technically legal, it certainly doesn’t feel right. Furthermore, contracts rely on people understanding what they are agreeing to, and I don’t think many developers would agree to letting the code be used outside the terms of the license they uploaded it under. I am very surprised there hasn’t been a legal challenge to it.
    - mynameisvlad 4y ago
      What, exactly, is there to challenge? “I’m sorry your honor I didn’t understand what I was signing” I don’t think has ever been a valid reason in a courtroom, similar to “I’m sorry I didn’t know I was committing a crime” is not a valid defense.
      - ghusbands 4y ago
        Courts interpret the intended and understood meaning of contracts and terms all the time. Research the term "meeting of the minds" and case law around it. When the terms were written, it's exceedingly unlikely that they intended it or anyone understood it to be blanket permission to allow a trained AI to copy code for others and no user would have interpreted it that way. Microsoft/Github can't necessarily unilaterally increase the intended range without making it clear in the terms. If it got to a court case, and both sides could afford it, it could be a lengthy one. (This comment is not legal advice. I am not a lawyer.)
        mynameisvlad 4y ago
        How does "[allowing] a trained AI to copy code" change the interpretation of the ToS? By uploading your code, you give Github an exclusive license to use it to improve their services. Copilot is such a service. Just because it's an AI and it provides others code does not somehow invalidate the license you gave.
        ghusbands 4y ago

by 542458 4y ago

aposm 4y ago

I can't imagine a scenario in which any lawyer would consider granting Github the right to "analyze" code anywhere close to granting Github the right to spit out that same code verbatim without your copyright notice (even if laundered by AI).

542458 4y ago
Here's Kate Downing, an IP lawyer specializing in software license: > According to Downing, the answer depends to a certain extent on where that code is hosted. If it’s on GitHub, there very clearly would not be copyright infringement. > “If you look at the GitHub Terms of Service, no matter what license you use, you give GitHub the right to host your code and to use your code to improve their products and features,” Downing says. “So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward.” Downing cautions that copilot output of large chunks of code complete with comments are more questionable to use, but that for the most part it looks above board. https://fossa.com/blog/analyzing-legal-implications-github-copilot/ https://fossa.com/blog/analyzing-legal-implications-github-c... Here's an English lawyer on the same topic... > The licence is broadly worded, and I'm confident that there is scope for argument, but if it turns out that Github does not require a licence for its activities then, in respect of the code hosted on Github, I suspect it could make a reasonable case that the mandatory licence grant in its terms covers this as against the uploader. https://decoded.legal/blog/2021/06/github-copilot-initial-thoughts-from-an-english-law-perspective https://decoded.legal/blog/2021/06/github-copilot-initial-th...
- Engineering-MD 4y ago
  To me regardless if it is technically legal, it certainly doesn’t feel right. Furthermore, contracts rely on people understanding what they are agreeing to, and I don’t think many developers would agree to letting the code be used outside the terms of the license they uploaded it under. I am very surprised there hasn’t been a legal challenge to it.
  - mynameisvlad 4y ago
    What, exactly, is there to challenge? “I’m sorry your honor I didn’t understand what I was signing” I don’t think has ever been a valid reason in a courtroom, similar to “I’m sorry I didn’t know I was committing a crime” is not a valid defense.
    - ghusbands 4y ago
      Courts interpret the intended and understood meaning of contracts and terms all the time. Research the term "meeting of the minds" and case law around it. When the terms were written, it's exceedingly unlikely that they intended it or anyone understood it to be blanket permission to allow a trained AI to copy code for others and no user would have interpreted it that way. Microsoft/Github can't necessarily unilaterally increase the intended range without making it clear in the terms. If it got to a court case, and both sides could afford it, it could be a lengthy one. (This comment is not legal advice. I am not a lawyer.)
      - mynameisvlad 4y ago
        How does "[allowing] a trained AI to copy code" change the interpretation of the ToS? By uploading your code, you give Github an exclusive license to use it to improve their services. Copilot is such a service. Just because it's an AI and it provides others code does not somehow invalidate the license you gave.
        ghusbands 4y ago