3 ms·

That license is neither free nor open source, so you'd be stooping to Microsoft's level by using it. And it wouldn't help anyway, since they're claiming fair us

That license is neither free nor open source, so you'd be stooping to Microsoft's level by using it. And it wouldn't help anyway, since they're claiming fair use, which if true, means they don't need a license. (And if false, then they're in violation of the existing licenses anyway.)

throwaway290 4y ago
Hold on, how can it ever be fair use if this is literally at the foundation of their commercial offering?
- josephcsible 4y ago
  I'm not saying that it is. I'm saying that whether or not it is, this license won't make a difference.
  - bugfix-66 4y ago
    It's certainly less ambiguous. The BSD license restricts both "redistribution" and "use": Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: Training a Copilot-like system is "use" in obvious violation of clause 3: 3. Use in source or binary forms for the construction or operation of predictive software generation systems is prohibited. What else can we do?
- tssva 4y ago
  Just because you use something for commercial purposes doesn't mean it can't be fair use. See Google v Oracle.
  - throwaway290 4y ago
    Wasn't that about API as opposed to implementation?
    - tssva 4y ago
      There was a question regarding whether an API could be copyrighted which was never answered by the Supreme Court. The last decision in that case regarding the topic was that they could be. A jury ruled that the use of the copyrighted API constituted fair use. A federal court then overruled that decision. The Supreme Court didn't rule on the copyrightability of the API because they decided even if it was the use by Google was fair use. The comment I replied to implied that something couldn't be fair use if the use was commercial. Google's use of the API was commercial and yet ruled fair use by the highest court in the land.
      - throwaway290 4y ago
        I hold that whatever is fair use for an API is not even close to what is fair use for the source of actual implementation, let's see what the court has to say on that.
bugfix-66 4y ago
It's the BSD 2-clause license, a very old, very widely-used, and very respectable open source license: https://en.m.wikipedia.org/wiki/BSD_licenses https://en.m.wikipedia.org/wiki/BSD_licenses We've added one additional clause EXPLICITLY PROHIBITING use in systems like Copilot. There's no ambiguity. Training your language model is a direct and unequivocal violation of clause 3. If this is not adequate to prevent Copilot-style intellectual property theft then nothing is. How else can we protect ourselves from Copilot-style use without attribution?
- josephcsible 4y ago
  Yes, the original license was open source. It's exactly your change that makes it not open source.
  - bugfix-66 4y ago
    Please elaborate on this surprising claim, in detail. Here is the OSI definition of Open Source: https://en.m.wikipedia.org/wiki/The_Open_Source_Definition https://en.m.wikipedia.org/wiki/The_Open_Source_Definition
    - josephcsible 4y ago
      Sure. Here's a quote from the Open Source Definition: > No Discrimination Against Fields of Endeavor > The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research. And here's the license term in question: > Use in source or binary forms for the construction or operation of predictive software generation systems is prohibited.
      - bugfix-66 4y ago
        I see, it's clause 6 in the OSI definition: 6. No discrimination against fields of endeavor: The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research. So it's one or the other. Basically, Copilot makes all open source software (according to the OSI definition) necessarily use-without-attribution. Your code is my code. Your work is instantly my work, and no credit will be given. I think this is a special case, illustrating that these new language models require us to reformulate our conception of what "open source" and "fair use" entails. The laws and definitions need to adapt to a changing world.
ninefathom 4y ago
> which if true, means they don't need a license. (And if false, then they're in violation of the existing licenses anyway.) Precisely my thoughts; either they're already violating the attribution requirements of such a license, or it's under Fair Use in which case the question is moot. There's no need to put them doubly into failure of compliance. I'm not an attorney; I have worked professionally with IP policies and licenses for a number of years. I generally give the following suggestion to developers considering FOSS licenses: once you've put your code under an open license, assume that you no longer own today- you only own tomorrow. What I mean by that is that once the source code is out there under a given open source license, it's best to consider it a total loss until the next time you change the code. Of course there's always the right to challenge and litigate, but this is often time-consuming, expensive, and an uphill battle. I can't even put a number on how many times I've dealt with teams who love the "warm fuzzy" of creating an open source project, but get apoplectic when they realize that means giving up quite a bit of control over anything published as FOSS (but it's a large quantity). Having said all of that, I think OP is doing exactly the right thing in reconsidering the license. Maybe an OSI-approved FOSS license is not right for this project and a more restrictive license is appropriate, but personally I think that in the face of this new type of use case, most FOSS licenses should clarify and refine attribution requirements. I'd love to see some further guidance from OSI on this. Edit: for example, it might become recommended practice to put generic, boilerplate, or non-innovative code under permissive FOSS licenses from day one, but leave extremely novel, innovative, or unique code under a more restrictive license (such as one with more stringent attribution requirements) in a separate module for a time, until credit for the innovation is well-established (after which even the innovation can be published under a permissive license). Not a panacea; simply an early thought.

throwaway290 4y ago

Hold on, how can it ever be fair use if this is literally at the foundation of their commercial offering?

josephcsible 4y ago
I'm not saying that it is. I'm saying that whether or not it is, this license won't make a difference.
- bugfix-66 4y ago
  It's certainly less ambiguous. The BSD license restricts both "redistribution" and "use": Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: Training a Copilot-like system is "use" in obvious violation of clause 3: 3. Use in source or binary forms for the construction or operation of predictive software generation systems is prohibited. What else can we do?
tssva 4y ago
Just because you use something for commercial purposes doesn't mean it can't be fair use. See Google v Oracle.
- throwaway290 4y ago
  Wasn't that about API as opposed to implementation?
  - tssva 4y ago
    There was a question regarding whether an API could be copyrighted which was never answered by the Supreme Court. The last decision in that case regarding the topic was that they could be. A jury ruled that the use of the copyrighted API constituted fair use. A federal court then overruled that decision. The Supreme Court didn't rule on the copyrightability of the API because they decided even if it was the use by Google was fair use. The comment I replied to implied that something couldn't be fair use if the use was commercial. Google's use of the API was commercial and yet ruled fair use by the highest court in the land.
    - throwaway290 4y ago
      I hold that whatever is fair use for an API is not even close to what is fair use for the source of actual implementation, let's see what the court has to say on that.

bugfix-66 4y ago

It's the BSD 2-clause license, a very old, very widely-used, and very respectable open source license: https://en.m.wikipedia.org/wiki/BSD_licenses https://en.m.wikipedia.org/wiki/BSD_licenses We've added one additional clause EXPLICITLY PROHIBITING use in systems like Copilot. There's no ambiguity. Training your language model is a direct and unequivocal violation of clause 3. If this is not adequate to prevent Copilot-style intellectual property theft then nothing is. How else can we protect ourselves from Copilot-style use without attribution?

josephcsible 4y ago
Yes, the original license was open source. It's exactly your change that makes it not open source.
- bugfix-66 4y ago
  Please elaborate on this surprising claim, in detail. Here is the OSI definition of Open Source: https://en.m.wikipedia.org/wiki/The_Open_Source_Definition https://en.m.wikipedia.org/wiki/The_Open_Source_Definition
  - josephcsible 4y ago
    Sure. Here's a quote from the Open Source Definition: > No Discrimination Against Fields of Endeavor > The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research. And here's the license term in question: > Use in source or binary forms for the construction or operation of predictive software generation systems is prohibited.
    - bugfix-66 4y ago
      I see, it's clause 6 in the OSI definition: 6. No discrimination against fields of endeavor: The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research. So it's one or the other. Basically, Copilot makes all open source software (according to the OSI definition) necessarily use-without-attribution. Your code is my code. Your work is instantly my work, and no credit will be given. I think this is a special case, illustrating that these new language models require us to reformulate our conception of what "open source" and "fair use" entails. The laws and definitions need to adapt to a changing world.

ninefathom 4y ago

> which if true, means they don't need a license. (And if false, then they're in violation of the existing licenses anyway.) Precisely my thoughts; either they're already violating the attribution requirements of such a license, or it's under Fair Use in which case the question is moot. There's no need to put them doubly into failure of compliance. I'm not an attorney; I have worked professionally with IP policies and licenses for a number of years. I generally give the following suggestion to developers considering FOSS licenses: once you've put your code under an open license, assume that you no longer own today- you only own tomorrow. What I mean by that is that once the source code is out there under a given open source license, it's best to consider it a total loss until the next time you change the code. Of course there's always the right to challenge and litigate, but this is often time-consuming, expensive, and an uphill battle. I can't even put a number on how many times I've dealt with teams who love the "warm fuzzy" of creating an open source project, but get apoplectic when they realize that means giving up quite a bit of control over anything published as FOSS (but it's a large quantity). Having said all of that, I think OP is doing exactly the right thing in reconsidering the license. Maybe an OSI-approved FOSS license is not right for this project and a more restrictive license is appropriate, but personally I think that in the face of this new type of use case, most FOSS licenses should clarify and refine attribution requirements. I'd love to see some further guidance from OSI on this. Edit: for example, it might become recommended practice to put generic, boilerplate, or non-innovative code under permissive FOSS licenses from day one, but leave extremely novel, innovative, or unique code under a more restrictive license (such as one with more stringent attribution requirements) in a separate module for a time, until credit for the innovation is well-established (after which even the innovation can be published under a permissive license). Not a panacea; simply an early thought.