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From my research the general consensus is that the processing of copyrighted material will be considered fair use. Here is a lengthy legal discussion: https://

From my research the general consensus is that the processing of copyrighted material will be considered fair use. Here is a lengthy legal discussion: https://texaslawreview.org/fair-learning/ https://texaslawreview.org/fair-learning/ Here is a short quote from an IP lawyer: “In terms of the ingestion of publicly accessible code, Ochoa said, there may be software license violations but that's probably protected by fair use. While there hasn't been a lot of litigation about that, a number of scholars have taken that position and he said he's inclined to agree.” https://www.theregister.com/2022/10/19/github_copilot_copyright/ https://www.theregister.com/2022/10/19/github_copilot_copyri...

renonce 4y ago
It’s very probably fair use under current copyright laws. The things is that the game is changing very rapidly. Right now it’s suffering from criticism in terms of how it affects the society and allows people to generate unwanted images, and merely copyright laws may not be sufficient to protect them. And it has already caught the regulator’s attention so even the law could be rewritten around these models.
- williamcotton 4y ago
  At least in the United States there is the jurisprudence of stare decisis. Case law is the only place where the details of how copyright are applied to software are hashed out. I don’t see this changing in the foreseeable future.
  - notacoward 4y ago
    > Case law is the only place where the details of how copyright are applied to software are hashed out Incorrect. In the absence of new legislation case law is how these things get worked out, but new statutes could be passed and could void prior case law.
    - williamcotton 4y ago
      Well that's a given in a discussion around common law jurisprudence. I still think it is highly unlikely that this changes. This issue doesn't seem to be making or breaking the political careers of the members of legislative branch anytime soon. https://www.copyright.gov/title17/title17.pdf https://www.copyright.gov/title17/title17.pdf Let me expand on this a bit... if you read through the above text (feel free to search for the below terms) of the current laws around copyright you will notice that there is no discussion of: https://en.wikipedia.org/wiki/Structure,_sequence_and_organization https://en.wikipedia.org/wiki/Structure,_sequence_and_organi... https://en.wikipedia.org/wiki/Abstraction-Filtration-Comparison_test https://en.wikipedia.org/wiki/Abstraction-Filtration-Compari... https://en.wikipedia.org/wiki/Idea–expression_distinction https://en.wikipedia.org/wiki/Idea–expression_distinction These legal doctrines are the result of the details as hashed out in case law. This is distinct from countries that use civil law jurisprudence. Common law jurisprudence relies heavily on case law.
      - notacoward 4y ago
        > Well that's a given Funny way to admit that your original statement was flat-out wrong. There is no separate "civil law jurisprudence" and "common law jurisprudence". Common law by itself is by definition not jurisprudence. Civil law combines aspects of statutory and common law (as one form of precedent) into a single system. Some aspects of common law even make their way into criminal law. Instead of just Googling for buzzwords, learn what they mean before you try to bluster your way through an argument with them.
- pmoriarty 4y ago
  "it has already caught the regulator’s attention so even the law could be rewritten around these models" The law moves slow. Even were that to happen eventually, the laws will very likely be challenged in courts, and those will take a while to be resolved. Finally, even if the US outlaws this, there'll be plenty of other countries where it'll be legal. There's plenty of infringement of US copyright in China, for instance. The same is likely to happen in regards to AI that's illegal in the US but legal elsewhere. By the time the law catches up, model creation may become so easy to create by individuals instead of just by deep-pocketed corporations, it may be practically impossible to stop.
notacoward 4y ago
Both of your sources make the point that the output of such models is separate from the ingestion mentioned in your (carefully selected) quote, and that the legal definition of fair use might well change to preclude such "AI washed" (my term) copying. That's almost the opposite of how you portray the state of legal thought on the matter.
- williamcotton 4y ago
  I'm sorry that I was not making points that support your feelings on Copilot. I was purely discussing the legality of the models themselves, which is what the commenter I was responding to was worried about. But sure, let's talk about outputs as well. From the second source we can see this from Tyler Ochoa: "If there's only one good way to do it, OK, then that's probably not eligible for copyright. But chances are that there's just a lot of code in [the training data] that has used the same open source solution, and that the output is going to look very similar to that. And that's just copying." I have seen some probable copyright violations from the output of Copilot, such as comments and some certain structural similarities that might be protected, although it is hard to say. But focus on the first part of what Mr. Ochoa is saying here, which is also laid out in this quote: “In computer programs, concerns for efficiency may limit the possible ways to achieve a particular function, making a particular expression necessary to achieving the idea. In this case, the expression is not protected by copyright." https://en.wikipedia.org/wiki/Abstraction-Filtration-Comparison_test https://en.wikipedia.org/wiki/Abstraction-Filtration-Compari... This allows for verbatim copies if they are utilitarian in nature! As for why we should allow verbatim copies of utilitarian features... First, let's preface this with the substantial similarity of the structure, sequence and organization as established in Whelan v. Jaslow which amongst other things says that you cannot merely change the variable names if the expressive structure of the code remains the same. Now let's imagine 10,000 software developers who all implement Dijkstra's algorithm in C and then run it through clang-format. Aside from variable names, isn't it safe to assume that many of the implementations are going to be exactly the same? As for why it was carefully selected... more often than not when I bring these things up people who feel upset about Copilot go off to cherry-pick some random quote out of context in order to support their upset feelings. Therefore I'm highlighting the important parts as to help people look beyond their upset feelings. This is a complicated and nuanced matter. Attempting to channel everything through the lens of "this makes me personally feel bad and must be completely wrong" does not help the discourse. It may make you popular to a certain crowd but it might be unpopular to the public at large and it might also be incoherent from a legal standpoint, akin to bashing your head against a wall at a weekly meetup of the local heads-bashing-against-walls club. There is plenty of room for discussion on what constitutes not only the legal interpretation of fair use and the idea/expression dichotomy but also the bigger picture. The knife always cuts both ways. Would it be acceptable to the open-source community if Microsoft could stop anyone from publishing Dijkstra's algorithm in C# because they wrote it first?
resoluteteeth 4y ago
> From my research the general consensus is that the processing of copyrighted material will be considered fair use. Here is a lengthy legal discussion: IANAL but I would take any opinions on this right now with a huge grain of salt and treat them more as advocacy than actual predictions of any legal outcomes. Whether there is a good case for it being considered fair use doesn't matter at all until its actually litigated and historically the result with fair use in relation to new technologies has always been a crapshoot. The result could easily be affected by the actual cases that get litigated, and one well chosen lawsuit where machine learning software is shown to produce output that's too close to the material it was trained on could result in a completely different outcome.
- cornel_io 4y ago
  The big problem is that while under current law it's pretty clear that this stuff should all be fair use, enough people want it not to be that interpretations and/or laws will possibly change. These laws pretty clearly did not anticipate this sort of thing, so it isn't possible to affirmatively say that anything will hold going forward.
deleted 4y ago
[deleted]

renonce 4y ago

It’s very probably fair use under current copyright laws. The things is that the game is changing very rapidly. Right now it’s suffering from criticism in terms of how it affects the society and allows people to generate unwanted images, and merely copyright laws may not be sufficient to protect them. And it has already caught the regulator’s attention so even the law could be rewritten around these models.

williamcotton 4y ago
At least in the United States there is the jurisprudence of stare decisis. Case law is the only place where the details of how copyright are applied to software are hashed out. I don’t see this changing in the foreseeable future.
- notacoward 4y ago
  > Case law is the only place where the details of how copyright are applied to software are hashed out Incorrect. In the absence of new legislation case law is how these things get worked out, but new statutes could be passed and could void prior case law.
  - williamcotton 4y ago
    Well that's a given in a discussion around common law jurisprudence. I still think it is highly unlikely that this changes. This issue doesn't seem to be making or breaking the political careers of the members of legislative branch anytime soon. https://www.copyright.gov/title17/title17.pdf https://www.copyright.gov/title17/title17.pdf Let me expand on this a bit... if you read through the above text (feel free to search for the below terms) of the current laws around copyright you will notice that there is no discussion of: https://en.wikipedia.org/wiki/Structure,_sequence_and_organization https://en.wikipedia.org/wiki/Structure,_sequence_and_organi... https://en.wikipedia.org/wiki/Abstraction-Filtration-Comparison_test https://en.wikipedia.org/wiki/Abstraction-Filtration-Compari... https://en.wikipedia.org/wiki/Idea–expression_distinction https://en.wikipedia.org/wiki/Idea–expression_distinction These legal doctrines are the result of the details as hashed out in case law. This is distinct from countries that use civil law jurisprudence. Common law jurisprudence relies heavily on case law.
    - notacoward 4y ago
      > Well that's a given Funny way to admit that your original statement was flat-out wrong. There is no separate "civil law jurisprudence" and "common law jurisprudence". Common law by itself is by definition not jurisprudence. Civil law combines aspects of statutory and common law (as one form of precedent) into a single system. Some aspects of common law even make their way into criminal law. Instead of just Googling for buzzwords, learn what they mean before you try to bluster your way through an argument with them.
pmoriarty 4y ago
"it has already caught the regulator’s attention so even the law could be rewritten around these models" The law moves slow. Even were that to happen eventually, the laws will very likely be challenged in courts, and those will take a while to be resolved. Finally, even if the US outlaws this, there'll be plenty of other countries where it'll be legal. There's plenty of infringement of US copyright in China, for instance. The same is likely to happen in regards to AI that's illegal in the US but legal elsewhere. By the time the law catches up, model creation may become so easy to create by individuals instead of just by deep-pocketed corporations, it may be practically impossible to stop.

notacoward 4y ago

Both of your sources make the point that the output of such models is separate from the ingestion mentioned in your (carefully selected) quote, and that the legal definition of fair use might well change to preclude such "AI washed" (my term) copying. That's almost the opposite of how you portray the state of legal thought on the matter.

williamcotton 4y ago
I'm sorry that I was not making points that support your feelings on Copilot. I was purely discussing the legality of the models themselves, which is what the commenter I was responding to was worried about. But sure, let's talk about outputs as well. From the second source we can see this from Tyler Ochoa: "If there's only one good way to do it, OK, then that's probably not eligible for copyright. But chances are that there's just a lot of code in [the training data] that has used the same open source solution, and that the output is going to look very similar to that. And that's just copying." I have seen some probable copyright violations from the output of Copilot, such as comments and some certain structural similarities that might be protected, although it is hard to say. But focus on the first part of what Mr. Ochoa is saying here, which is also laid out in this quote: “In computer programs, concerns for efficiency may limit the possible ways to achieve a particular function, making a particular expression necessary to achieving the idea. In this case, the expression is not protected by copyright." https://en.wikipedia.org/wiki/Abstraction-Filtration-Comparison_test https://en.wikipedia.org/wiki/Abstraction-Filtration-Compari... This allows for verbatim copies if they are utilitarian in nature! As for why we should allow verbatim copies of utilitarian features... First, let's preface this with the substantial similarity of the structure, sequence and organization as established in Whelan v. Jaslow which amongst other things says that you cannot merely change the variable names if the expressive structure of the code remains the same. Now let's imagine 10,000 software developers who all implement Dijkstra's algorithm in C and then run it through clang-format. Aside from variable names, isn't it safe to assume that many of the implementations are going to be exactly the same? As for why it was carefully selected... more often than not when I bring these things up people who feel upset about Copilot go off to cherry-pick some random quote out of context in order to support their upset feelings. Therefore I'm highlighting the important parts as to help people look beyond their upset feelings. This is a complicated and nuanced matter. Attempting to channel everything through the lens of "this makes me personally feel bad and must be completely wrong" does not help the discourse. It may make you popular to a certain crowd but it might be unpopular to the public at large and it might also be incoherent from a legal standpoint, akin to bashing your head against a wall at a weekly meetup of the local heads-bashing-against-walls club. There is plenty of room for discussion on what constitutes not only the legal interpretation of fair use and the idea/expression dichotomy but also the bigger picture. The knife always cuts both ways. Would it be acceptable to the open-source community if Microsoft could stop anyone from publishing Dijkstra's algorithm in C# because they wrote it first?

resoluteteeth 4y ago

> From my research the general consensus is that the processing of copyrighted material will be considered fair use. Here is a lengthy legal discussion: IANAL but I would take any opinions on this right now with a huge grain of salt and treat them more as advocacy than actual predictions of any legal outcomes. Whether there is a good case for it being considered fair use doesn't matter at all until its actually litigated and historically the result with fair use in relation to new technologies has always been a crapshoot. The result could easily be affected by the actual cases that get litigated, and one well chosen lawsuit where machine learning software is shown to produce output that's too close to the material it was trained on could result in a completely different outcome.

cornel_io 4y ago
The big problem is that while under current law it's pretty clear that this stuff should all be fair use, enough people want it not to be that interpretations and/or laws will possibly change. These laws pretty clearly did not anticipate this sort of thing, so it isn't possible to affirmatively say that anything will hold going forward.

deleted 4y ago

[deleted]