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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 ou

by 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
        Again, research "meeting of the minds". It's a standard legal term directly relevant to all contracts and terms. Also, "transparency" is another important one. Many online services have very wide terms around what they can do with your data, which most people who bother to read them interpret as being what is required for them to handle the service for you without breaking copyright law. In that context, being able to use and analyse your data to improve their services could be another catch-all that lets them do specific performance optimisation on their backend. One party instead deciding they've got blanket permission to do whatever they like with your work, including selling it to others, may well not hold up in court. Contracts aren't programs and one party tricking the other rarely works out in court - courts world-wide tend to rule against trickery and deception.
- BaculumMeumEst 4y ago
  > “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.” That's assuming that all code on GitHub is uploaded in good faith by the copyright owner, which is not always going to be the case.
- deleted 4y ago
  [deleted]
- zerohp 4y ago
  Many repositories on Github were put there by people that do not own the copyright and never agreed to GitHub's Terms of Service. Linux, for example, does not require copyright assignment. The original contributor of a change owns the copyright for that code and may have never used Github.

by aposm 4y ago

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
        Again, research "meeting of the minds". It's a standard legal term directly relevant to all contracts and terms. Also, "transparency" is another important one. Many online services have very wide terms around what they can do with your data, which most people who bother to read them interpret as being what is required for them to handle the service for you without breaking copyright law. In that context, being able to use and analyse your data to improve their services could be another catch-all that lets them do specific performance optimisation on their backend. One party instead deciding they've got blanket permission to do whatever they like with your work, including selling it to others, may well not hold up in court. Contracts aren't programs and one party tricking the other rarely works out in court - courts world-wide tend to rule against trickery and deception.
BaculumMeumEst 4y ago
> “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.” That's assuming that all code on GitHub is uploaded in good faith by the copyright owner, which is not always going to be the case.
deleted 4y ago
[deleted]
zerohp 4y ago
Many repositories on Github were put there by people that do not own the copyright and never agreed to GitHub's Terms of Service. Linux, for example, does not require copyright assignment. The original contributor of a change owns the copyright for that code and may have never used Github.