3 ms·

People keep getting this wrong. Your license is irrelevant. Copilot depends entirely on being exempt from copyright restrictions (under fair use doctrine), and

People keep getting this wrong. Your license is irrelevant. Copilot depends entirely on being exempt from copyright restrictions (under fair use doctrine), and you cannot restrict this with any license, because they're not using that license. The only way you can stop them using your code so is to not share it with anyone. If they find your code (even via a leak!), they can legally use it, if their fair use claim is correct.

thruuavay 4y ago
If so, then the other edge of the sword may be sharp enough. Collect all bigco source code leaks and create a fancy Schmopilot model out of it. Publish said model on GitHub.
- ShamelessC 4y ago
  I suspect any such model will have weird biases that don't match public usage. Monolith code can be impressive, but it probably only happens outside the context window of Copilot.
  - alpaca128 4y ago
    The functionality doesn't matter. Such a project would exist to show Microsoft what it's like to be on the other end of their shady practices.
    - ShamelessC 4y ago
      I seriously doubt they would care.
formerly_proven 4y ago
Copilot being fair use is what Microsoft claims (obviously), not an established fact. There is no precedent for this claim. (Nitpick: Fair use isn't an exemption from copyright, it's a defense for violating copyright)
- ljlolel 4y ago
  You shouldn’t be downvoted
- egeozcan 4y ago
  > Fair use isn't an exemption from copyright, it's a defense for violating copyright My uneducated brain cannot tell the practical difference between them, can you or anyone knowledgeable please explain like I'm 5?
  - hnlmorg 4y ago
    They're not accurate. Or at least not accurate to most jurisdictions that've I've read up on (some countries might be set up that way but I wouldn't know which). Take UK law, "fair dealing" (I believe it's written as) is specifically stated as "not infringing copyright". Which means it's an allowance or exception, depending on how you want to phrase it. It's not something that is technically in breach and then used as a defence in (for example) court. In fact I don't even know how that kind of law would work in practice. However since fair use can be a little subjective at times that does mean people are often forced to defend their position that their usage of the source material fell under "fair dealing".
- dragonwriter 4y ago
  > Nitpick: Fair use isn't an exemption from copyright, it's a defense for violating copyright) Nitpick: Fair use is both a Constitutional and statutory (the latter codifying the former) limitation on the exclusive rights granted as part of copyright, so it's definitely an exception. Procedurally, it operates as a defense, but that's not inconsistent with it being an exception.
  - formerly_proven 4y ago
    True, the contrast here would be e.g. copyright law as usually found in EU states, where the are actual, enumerated lists of exceptions to copyright. Fair dealing as used by some former UK colonies seems more similar to the EU approach than US fair use doctrine. "Training of ML models with data not licensed to you and then selling the output of the model" isn't on those lists, and consequently is a flagrant copyright violation in - broadly - the entire EU. If you are a developer in the EU using Copilot, it is really pretty obvious that using Copilot is a commercialized copyright violation, which is e.g. in Germany (but I'm guessing many other states) a criminal offense, not a civil offense. Now, people might say, they're paying Microsoft for this service, and that's not in the EU, so something something can't prosecute. Of course, that doesn't actually work in the real world, and this corner of prosecuting copyright violations has been extremely well explored during the many, many trials of people committing IP violations of music and films over the past few decades. In addition to that, I'm pretty sure routine copyright violations by an employed developer would be one of the more clear-cut reasons for a termination without notice and compensation for having to replace the affected code.
jillesvangurp 4y ago
Correct. Co-pilot is simply operating under the current interpretation of copyright law, which has provisions for fair use which is actually very important for how software development works. Fair use is crucial. Without that we can't implement proprietary APIs or allow ourselves to be inspired by other people's work. The samples of code you get from co-pilot aren't any different from those you find in a book (copyrighted and typically not OSS), on stackoverflow, or code you have seen somewhere else (for example on Github). And programmers use all of the above. If you don't like that, keep your code proprietary and refrain from publishing it. In the same way, Google is making use of fair use by providing website titles, summaries, book samples, etc. There has been some controversy with news about them taking that too far. But by and large, they are still legal. And people of course have tried to challenge that in courts. It's just small samples being distributed, not a complete work. There are lots of examples of companies depending on fair use for all sorts of things. E.g. quoting an author or paraphrasing their work is fine. You don't need their permission for that. Also another point here is that it isn't necessarily just MS that would be violating copyright (if the above somehow wasn't the case) but the receiver of the auto-completed code that ends up distributing that code. Because it is that code that ends up being distributed. All MS does is show you some code sample, it's the programmer that decides what to do with it. Whether you receive your sample from Stackoverflow, co-pilot, or a book is not relevant: you are responsible for the code you distribute. Finally, the Github terms of use give Github some rights to doing things to your code if you choose to put it on Github. That probably also covers what they are doing with Github Co-pilot. That's a valid reason for removing your code from Github if you don't agree with that but of course no guarantee that Github Co-pilot would not crawl external public git repositories or that whomever you pick as an alternative wouldn't have some similar legalese in their terms of use. If these things matter to you, review it. Just because Gitlab hasn't launched a co-pilot competitor doesn't mean they couldn't.
- chiefalchemist 4y ago
  Yes. But I'm under the impression the core issue is GH charging $10 p/m for CoP, not CoP itself. That is, taking what should be free and adding a price tag. Or maybe I've misread the article?
Hamuko 4y ago
>Copilot depends entirely on being exempt from copyright restrictions (under fair use doctrine), and you cannot restrict this with any license, because they're not using that license. I feel like this has not really been tested, especially in a court that resides outside the United States. Microsoft, as far as I know, probably has legal entities in other countries as well. A German developer residing in Germany could take Microsoft Deutschland GmbH to court in Germany.
notacoward 4y ago
"if their fair use claim is correct" That clause is doing a lot of work here. You seem to be starting with an assumption that their claim is correct, but it's kind of a ridiculous assumption. Here are the usual categories of fair use, according to the US copyright office. "criticism, comment, news reporting, teaching, scholarship, and research" Which of these do you think describes Copilot? I say none. I also suspect that most people and most courts would say none. I don't think "arbitrary incorporation into other works without attribution" fits even a generous definition of fair use. Some might even recognize it as a definition of plagiarism. Can you make your case instead of assuming it?
- chrismorgan 4y ago
  I am reporting facts, not making any judgement on the legitimacy of their claim. As far as practical consequences are concerned: if their fair use claim is struck down, Copilot is dead, unequivocally, because the only kind of license they can satisfy is a public-domain-equivalent one, and there’s not all that much such code. This is why I said “depends entirely on”. See also https://news.ycombinator.com/item?id=31849107 https://news.ycombinator.com/item?id=31849107 where I said much the same thing, and pointed out that any mentions of the GPL specifically are a red herring.

thruuavay 4y ago

If so, then the other edge of the sword may be sharp enough. Collect all bigco source code leaks and create a fancy Schmopilot model out of it. Publish said model on GitHub.

ShamelessC 4y ago
I suspect any such model will have weird biases that don't match public usage. Monolith code can be impressive, but it probably only happens outside the context window of Copilot.
- alpaca128 4y ago
  The functionality doesn't matter. Such a project would exist to show Microsoft what it's like to be on the other end of their shady practices.
  - ShamelessC 4y ago
    I seriously doubt they would care.

formerly_proven 4y ago

Copilot being fair use is what Microsoft claims (obviously), not an established fact. There is no precedent for this claim. (Nitpick: Fair use isn't an exemption from copyright, it's a defense for violating copyright)

ljlolel 4y ago
You shouldn’t be downvoted
egeozcan 4y ago
> Fair use isn't an exemption from copyright, it's a defense for violating copyright My uneducated brain cannot tell the practical difference between them, can you or anyone knowledgeable please explain like I'm 5?
- hnlmorg 4y ago
  They're not accurate. Or at least not accurate to most jurisdictions that've I've read up on (some countries might be set up that way but I wouldn't know which). Take UK law, "fair dealing" (I believe it's written as) is specifically stated as "not infringing copyright". Which means it's an allowance or exception, depending on how you want to phrase it. It's not something that is technically in breach and then used as a defence in (for example) court. In fact I don't even know how that kind of law would work in practice. However since fair use can be a little subjective at times that does mean people are often forced to defend their position that their usage of the source material fell under "fair dealing".
dragonwriter 4y ago
> Nitpick: Fair use isn't an exemption from copyright, it's a defense for violating copyright) Nitpick: Fair use is both a Constitutional and statutory (the latter codifying the former) limitation on the exclusive rights granted as part of copyright, so it's definitely an exception. Procedurally, it operates as a defense, but that's not inconsistent with it being an exception.
- formerly_proven 4y ago
  True, the contrast here would be e.g. copyright law as usually found in EU states, where the are actual, enumerated lists of exceptions to copyright. Fair dealing as used by some former UK colonies seems more similar to the EU approach than US fair use doctrine. "Training of ML models with data not licensed to you and then selling the output of the model" isn't on those lists, and consequently is a flagrant copyright violation in - broadly - the entire EU. If you are a developer in the EU using Copilot, it is really pretty obvious that using Copilot is a commercialized copyright violation, which is e.g. in Germany (but I'm guessing many other states) a criminal offense, not a civil offense. Now, people might say, they're paying Microsoft for this service, and that's not in the EU, so something something can't prosecute. Of course, that doesn't actually work in the real world, and this corner of prosecuting copyright violations has been extremely well explored during the many, many trials of people committing IP violations of music and films over the past few decades. In addition to that, I'm pretty sure routine copyright violations by an employed developer would be one of the more clear-cut reasons for a termination without notice and compensation for having to replace the affected code.

jillesvangurp 4y ago

Correct. Co-pilot is simply operating under the current interpretation of copyright law, which has provisions for fair use which is actually very important for how software development works. Fair use is crucial. Without that we can't implement proprietary APIs or allow ourselves to be inspired by other people's work. The samples of code you get from co-pilot aren't any different from those you find in a book (copyrighted and typically not OSS), on stackoverflow, or code you have seen somewhere else (for example on Github). And programmers use all of the above. If you don't like that, keep your code proprietary and refrain from publishing it. In the same way, Google is making use of fair use by providing website titles, summaries, book samples, etc. There has been some controversy with news about them taking that too far. But by and large, they are still legal. And people of course have tried to challenge that in courts. It's just small samples being distributed, not a complete work. There are lots of examples of companies depending on fair use for all sorts of things. E.g. quoting an author or paraphrasing their work is fine. You don't need their permission for that. Also another point here is that it isn't necessarily just MS that would be violating copyright (if the above somehow wasn't the case) but the receiver of the auto-completed code that ends up distributing that code. Because it is that code that ends up being distributed. All MS does is show you some code sample, it's the programmer that decides what to do with it. Whether you receive your sample from Stackoverflow, co-pilot, or a book is not relevant: you are responsible for the code you distribute. Finally, the Github terms of use give Github some rights to doing things to your code if you choose to put it on Github. That probably also covers what they are doing with Github Co-pilot. That's a valid reason for removing your code from Github if you don't agree with that but of course no guarantee that Github Co-pilot would not crawl external public git repositories or that whomever you pick as an alternative wouldn't have some similar legalese in their terms of use. If these things matter to you, review it. Just because Gitlab hasn't launched a co-pilot competitor doesn't mean they couldn't.

chiefalchemist 4y ago
Yes. But I'm under the impression the core issue is GH charging $10 p/m for CoP, not CoP itself. That is, taking what should be free and adding a price tag. Or maybe I've misread the article?

Hamuko 4y ago

>Copilot depends entirely on being exempt from copyright restrictions (under fair use doctrine), and you cannot restrict this with any license, because they're not using that license. I feel like this has not really been tested, especially in a court that resides outside the United States. Microsoft, as far as I know, probably has legal entities in other countries as well. A German developer residing in Germany could take Microsoft Deutschland GmbH to court in Germany.

notacoward 4y ago

"if their fair use claim is correct" That clause is doing a lot of work here. You seem to be starting with an assumption that their claim is correct, but it's kind of a ridiculous assumption. Here are the usual categories of fair use, according to the US copyright office. "criticism, comment, news reporting, teaching, scholarship, and research" Which of these do you think describes Copilot? I say none. I also suspect that most people and most courts would say none. I don't think "arbitrary incorporation into other works without attribution" fits even a generous definition of fair use. Some might even recognize it as a definition of plagiarism. Can you make your case instead of assuming it?

chrismorgan 4y ago
I am reporting facts, not making any judgement on the legitimacy of their claim. As far as practical consequences are concerned: if their fair use claim is struck down, Copilot is dead, unequivocally, because the only kind of license they can satisfy is a public-domain-equivalent one, and there’s not all that much such code. This is why I said “depends entirely on”. See also https://news.ycombinator.com/item?id=31849107 https://news.ycombinator.com/item?id=31849107 where I said much the same thing, and pointed out that any mentions of the GPL specifically are a red herring.