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As a non-lawyer, I am very suspicious of the claim that "Plaintiffs and the Class have suffered monetary damages as a result of Defendants’ conduct." Flagrant d

As a non-lawyer, I am very suspicious of the claim that "Plaintiffs and the Class have suffered monetary damages as a result of Defendants’ conduct." Flagrant disregard for copyright? Sure, maybe. The output of the model is subject to copyright? Who knows! But the copyright holders being damaged in some what? Seems doubtful. The best argument I could think of would be "GitHub would have had to pay us for this, and they didn't pay us, so we lost money," but that'd presumably work out to pennies per person.

toomuchtodo 4y ago
The parallels to music sampling are somewhat humorous. Where is fair use vs misappropriation? To be discovered!
- schappim 4y ago
  Soon we'll have to use Mechanical Turk[0] to identify existing opensource code similar to what Girl Talk did with "Feed the Animals"[1]. Unrelated, how is it that Mechanical Turk was never truely integrated w/ AWS? [0] https://www.mturk.com/ https://www.mturk.com/ [1] https://waxy.org/2008/09/girl_turk/ https://waxy.org/2008/09/girl_turk/
citilife 4y ago
Say I produce a licensed library. Someone can pay me $5/year per license. I keep the code private and compile the code before sending it to customers. If you have co-pilot trained on my code base (which was private), that then reproduces near replica's of my code then they sell it for $5/year... Well, I'm eligible for damages.
- yawnxyz 4y ago
  I don't think this is possible for co-pilot to do? (If it was, please tell me how, since that would save me $5/year across multiple libraries..!)
- cheriot 4y ago
  > that then reproduces near replica's of my code Copying a few lines is not the same as copying the whole thing. Sharing quotes from a book is not copyright infringement.
  - bawolff 4y ago
    I dont think that's comparable. For starters, its not just the length of a quote that makes it fair use, but the way quotes are used i.e. to engage in commentary.
  - heavyset_go 4y ago
    If your intent is to create a competing product for profit, chances are that won't be found as fair use, given that determining fair use depends on intent and how the content is used. Using clips from a movie in a movie review is probably fair use. Using clips from a movie in knock-off of that movie for profit? Probably not fair use if it's not a parody. Copilot is not like a movie reviewer using clips to review a movie. Copilot is like a production team for a movie taking clips from another movie to make a ripoff of that movie and selling it.
    - rolenthedeep 4y ago
      Interesting analogy. Consider every repo on github to be a movie. Copilot is taking individual frames out of every movie on github and composting them into a new film. I think most of us would agree that individually, each frame is copyrighted. But what if you take one frame from a million different movies and put them in an order that produces a new coherent movie? The core question we need to settle in court is: does the new movie become its own copyrightable work, or is it plagiarism?
      - teddyh 4y ago
        The question was basically settled with music sampling: https://en.wikipedia.org/wiki/Sampling_(music)#Legal_and_ethical_issues https://en.wikipedia.org/wiki/Sampling_(music)#Legal_and_eth... I.e. any use without permission is illegal.
- joxel 4y ago
  But that isn’t what is being alleged
- sigzero 4y ago
  I don't believe it does anything with private repos and that isn't what is being alleged.
  - mdaEyebot 4y ago
    It's the license that matters, not whether the code is visible on Microsoft's website. Code which anybody can view is called "source available". You aren't necessarily allowed to use the code, but some companies will let their customers see what is going on so they can better integrate the code, understand performance implications, debug and fix unexpected issues, etc. The customers would probably face significant legal risks if they took that code and started to sell it. "Open source" code implies permission to re-use the code, but there is still some nuance. Some open-source licenses come with almost no restrictions, but others include limiting clauses. The GPL, for example, is "viral": anybody who uses GPL code in a project must also provide that project's source code on request. What do you think the chances are that Microsoft would surrender the Copilot codebase upon receipt of a GPL request?
kube-system 4y ago
Those damages are enumerated on pages 50-52. Remember, "damages" is being used in a legal sense here -- for a non-lawyer, you can interpret it more like "a dollar value on something someone did that was wrong". This is more broad than the colloquial use of the word. Sometimes damages are statutory, i.e. they have a fixed dollar amount written right into the law. This lawsuit references one such law: https://www.law.cornell.edu/uscode/text/17/1203 https://www.law.cornell.edu/uscode/text/17/1203
belorn 4y ago
The common practice in copyright cases is to calculate damages based on the theoretical cost that the infringer would have paid if they have bought the rights in the first place. This method was used during the piratebay case to calculate damages caused by the sites founders. They did not actually calculate damages in terms of lost movie tickets or estimates vs actually sales number of sold game copies. When it came to pre-releases where such product wouldn't have been sold legally in the first place, they simply added a multiplier to indicate that the copyright owner wouldn't have been willing to sell. For software code, an other practice I have read is to use the man-hours that rewriting copyrighted code would cost. Using such calculations they would likely estimate the man hours based on number of lines of code and multiply that with the average salary of a programmer.
- whiddershins 4y ago
  I believe there are statutory damages or penalties in many cases. At least with music and images.
- michaelmrose 4y ago
  So for iseven can we go for how much a student might accept 20 an hour say and multiply that by the one minute required to create it and offer them 33 cents?
- pmoriarty 4y ago
  "Using such calculations they would likely estimate the man hours based on number of lines of code and multiply that with the average salary of a programmer." The average salary of a programmer in which country? So much programming is outsourced these days, and in some places programmers are very cheap.
  - imoverclocked 4y ago
    Probably in the place where GitHub copilot is used and the location of the authority of the court.
  - belorn 4y ago
TheCoelacanth 4y ago
Aren't there statutory damages for copyright infringement, i.e. there is a presumption that each work infringed is worth at least a certain amount without proving actual damages?
BenjiWiebe 4y ago
Well, the code I write is under GPL, at least it is when I remember to put an explicit license to it or if anyone asks be for permission to use it. If someone wants to use it commercially without complying with the GPL, I have no problem with allowing that, for a price. Either use the code freely and openly, or pay me so you can make money on my code. Copilot could conceivably allow someone to use my code commercially (and in a closed manner) without negotiating with me, the copyright holder.

toomuchtodo 4y ago

The parallels to music sampling are somewhat humorous. Where is fair use vs misappropriation? To be discovered!

schappim 4y ago
Soon we'll have to use Mechanical Turk[0] to identify existing opensource code similar to what Girl Talk did with "Feed the Animals"[1]. Unrelated, how is it that Mechanical Turk was never truely integrated w/ AWS? [0] https://www.mturk.com/ https://www.mturk.com/ [1] https://waxy.org/2008/09/girl_turk/ https://waxy.org/2008/09/girl_turk/

citilife 4y ago

Say I produce a licensed library. Someone can pay me $5/year per license. I keep the code private and compile the code before sending it to customers. If you have co-pilot trained on my code base (which was private), that then reproduces near replica's of my code then they sell it for $5/year... Well, I'm eligible for damages.

yawnxyz 4y ago
I don't think this is possible for co-pilot to do? (If it was, please tell me how, since that would save me $5/year across multiple libraries..!)
cheriot 4y ago
> that then reproduces near replica's of my code Copying a few lines is not the same as copying the whole thing. Sharing quotes from a book is not copyright infringement.
- bawolff 4y ago
  I dont think that's comparable. For starters, its not just the length of a quote that makes it fair use, but the way quotes are used i.e. to engage in commentary.
- heavyset_go 4y ago
  If your intent is to create a competing product for profit, chances are that won't be found as fair use, given that determining fair use depends on intent and how the content is used. Using clips from a movie in a movie review is probably fair use. Using clips from a movie in knock-off of that movie for profit? Probably not fair use if it's not a parody. Copilot is not like a movie reviewer using clips to review a movie. Copilot is like a production team for a movie taking clips from another movie to make a ripoff of that movie and selling it.
  - rolenthedeep 4y ago
    Interesting analogy. Consider every repo on github to be a movie. Copilot is taking individual frames out of every movie on github and composting them into a new film. I think most of us would agree that individually, each frame is copyrighted. But what if you take one frame from a million different movies and put them in an order that produces a new coherent movie? The core question we need to settle in court is: does the new movie become its own copyrightable work, or is it plagiarism?
    - teddyh 4y ago
      The question was basically settled with music sampling: https://en.wikipedia.org/wiki/Sampling_(music)#Legal_and_ethical_issues https://en.wikipedia.org/wiki/Sampling_(music)#Legal_and_eth... I.e. any use without permission is illegal.
joxel 4y ago
But that isn’t what is being alleged
sigzero 4y ago
I don't believe it does anything with private repos and that isn't what is being alleged.
- mdaEyebot 4y ago
  It's the license that matters, not whether the code is visible on Microsoft's website. Code which anybody can view is called "source available". You aren't necessarily allowed to use the code, but some companies will let their customers see what is going on so they can better integrate the code, understand performance implications, debug and fix unexpected issues, etc. The customers would probably face significant legal risks if they took that code and started to sell it. "Open source" code implies permission to re-use the code, but there is still some nuance. Some open-source licenses come with almost no restrictions, but others include limiting clauses. The GPL, for example, is "viral": anybody who uses GPL code in a project must also provide that project's source code on request. What do you think the chances are that Microsoft would surrender the Copilot codebase upon receipt of a GPL request?

kube-system 4y ago

Those damages are enumerated on pages 50-52. Remember, "damages" is being used in a legal sense here -- for a non-lawyer, you can interpret it more like "a dollar value on something someone did that was wrong". This is more broad than the colloquial use of the word. Sometimes damages are statutory, i.e. they have a fixed dollar amount written right into the law. This lawsuit references one such law: https://www.law.cornell.edu/uscode/text/17/1203 https://www.law.cornell.edu/uscode/text/17/1203

belorn 4y ago

The common practice in copyright cases is to calculate damages based on the theoretical cost that the infringer would have paid if they have bought the rights in the first place. This method was used during the piratebay case to calculate damages caused by the sites founders. They did not actually calculate damages in terms of lost movie tickets or estimates vs actually sales number of sold game copies. When it came to pre-releases where such product wouldn't have been sold legally in the first place, they simply added a multiplier to indicate that the copyright owner wouldn't have been willing to sell. For software code, an other practice I have read is to use the man-hours that rewriting copyrighted code would cost. Using such calculations they would likely estimate the man hours based on number of lines of code and multiply that with the average salary of a programmer.

whiddershins 4y ago
I believe there are statutory damages or penalties in many cases. At least with music and images.
michaelmrose 4y ago
So for iseven can we go for how much a student might accept 20 an hour say and multiply that by the one minute required to create it and offer them 33 cents?
pmoriarty 4y ago
"Using such calculations they would likely estimate the man hours based on number of lines of code and multiply that with the average salary of a programmer." The average salary of a programmer in which country? So much programming is outsourced these days, and in some places programmers are very cheap.
- imoverclocked 4y ago
  Probably in the place where GitHub copilot is used and the location of the authority of the court.
- belorn 4y ago

TheCoelacanth 4y ago

Aren't there statutory damages for copyright infringement, i.e. there is a presumption that each work infringed is worth at least a certain amount without proving actual damages?

BenjiWiebe 4y ago

Well, the code I write is under GPL, at least it is when I remember to put an explicit license to it or if anyone asks be for permission to use it. If someone wants to use it commercially without complying with the GPL, I have no problem with allowing that, for a price. Either use the code freely and openly, or pay me so you can make money on my code. Copilot could conceivably allow someone to use my code commercially (and in a closed manner) without negotiating with me, the copyright holder.