19 ms·

Microsoft sued for open-source piracy through GitHub Copilot

322 points by redbell 4y ago

personjerry 4y ago
This is big because it sets a precedent for broader usage of these "copy and make similar" ML models. For example, I believe it'll impact the future of AI image generation.
- ocdtrekkie 4y ago
  I have a crazy theory Microsoft may have been seeking this outcome. Microsoft isn't stupid, and Copilot is so obviously legally dubious that it stretches reason they launched it without better legal justification or discourse. Microsoft employees basically treat any notion like it isn't legal as nonsense, even though they lack any real precedent to justify the position. Is it plausible they might have launched a product almost certain to face a legal case in order to establish precedent for using training data? The company is working in this industry and it likely needs to know for future projects that are harder or costlier to build.
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throwaway675309 4y ago
Even if this succeeds (I sincerely hope that it does not, as I believe these to be sufficiently transformative as to be considered fair use), it doesn't functionally matter in the long term: 1. The ability to be able to both run and train these models is going to eventually be plausible on a home machine with even modest hardware. 2. These models, e.g. such as one scraped from all of the code on GitHub, will be publicly available via torrent or whatever. 3. People will be able to run it locally as an integrated plug-in in their IDE of choice, jetbrains, vs code, etc. 4. You'll never know if somebody has lifted a bit of code in violation of a license anymore than you would be able to tell if somebody copy-pasted from stack overflow without attribution in any commercial application
- ezoe 4y ago
  We can't expect a massive improvement on computer performance anymore. So it will never come the day household computer can finish training the model equivalent of Github Copilot in practical time.
  - Gigachad 4y ago
    They can just add more cores and more power. With modern languages like Rust making multi threading more accessible, I expect we will double down on this. You could also crowd source this, some distributed application where everyone puts their home machines towards training.
    - PartiallyTyped 4y ago
      > You could also crowd source this, some distributed application where everyone puts their home machines towards training. That's how Leela Chess 0 (LC0) replicated the Alpha-zero performance. In fact, this is actually not that difficult. Assuming you have the means to orchestrate it; all it takes is loading the weights and a batch, computing backprop; and submitting it to the central system which aggregates the gradient updates and then updates the whole network and push new weights (kinda how bitcoin creates a new block). This is no different to gradient accumulation; just "distributed". In-fact, the system could offload a large number of batches because the returned update is O(1) space to return where n is for batch size; it's just that the O(1) is the size of the network.
- jrockway 4y ago
  > You'll never know if somebody has lifted a bit of code in violation of a license anymore than you would be able to tell if somebody copy-pasted from stack overflow without attribution in any commercial application Wasn't this the subject of millions of dollars of litigation between Oracle and Google?
  - thih9 4y ago
    For others like me, missing context: > Google’s copying of so-called application programming interfaces from Oracle’s Java SE was an example of fair use, the court held (…). Source: https://edition.cnn.com/2021/04/05/tech/google-oracle-supreme-court-ruling/index.html https://edition.cnn.com/2021/04/05/tech/google-oracle-suprem...
greenyoda 4y ago
Big discussion a couple of days ago: https://news.ycombinator.com/item?id=33457063 https://news.ycombinator.com/item?id=33457063
Sunspark 4y ago
For awhile now I have not wanted to use GitHub because of this tool. Why should anyone write code for Microsoft for free when Microsoft charges for software? Perhaps options like GitLab and others should be considered instead.
- jszymborski 4y ago
  I've certainly been enjoying Codeberg for my personal development.
- cercatrova 4y ago
  I like Copilot and use it, so I'll be glad to continue using it and it can use my code to help train it. It's a fair exchange in my view.
  - mikro2nd 4y ago
    That's cool for you. For the rest of us, however, it would be terribly simple for Github to provide a profile/account setting that allows people to opt out -- perhaps on a per-repo level as well as per-account. Yet they don't. I wonder why not.
- scoot 4y ago
  There are thousands of open source libraries used legally in thousands of commercial products, so I'm not sure I understand your point.
- hsbauauvhabzb 4y ago
  Until someone forks/mirrors your project on GitHub
- Gigachad 4y ago
  If you don’t want people to use your code, consider making your repos private.
  - xigoi 4y ago
    What if you want people to use your code, but not for proprietary software?
theknocker 4y ago
compsciphd 4y ago
So I recently had a discussion with a copyright academic expert, and based on what he said to me, I'm wondering how they are suing. Basically, the common conception of all produced work being automatically copyrighted is correct. However, one can only sue for copyright infringement for works that have a registered copyright (one can register after the fact, one is then just limited in the damages they can sue for, i.e. no enhanced damages for violations before registration). My assumption is that even github copilot is violating peoples copyright, since the copyright for the vast majority of the code is not registered (does anyone actually pay to register the copyright on their code?), it can make it difficult to sue for damages, especially as a form of class action (where presumambly the class that has registered their copyright is minimal in size). was I informed incorrectly (I'm also wondering, if this is true, how this would impact enforcement of GPL type licenses in the USA, as again, the vast majority of code licensed under it isn't registered, so while one could register it after the fact, how many people really do this?)
- banana_giraffe 4y ago
  They're suing for breach of license, because CoPilot copies code and omits any mention of the source license, which they claim is not within Fair Use. You can read the complaint: https://www.documentcloud.org/documents/23264658-github-complaint https://www.documentcloud.org/documents/23264658-github-comp... It's a bit .. odd. Seems to be partially a complaint, and partially a code review of the couple of examples they cite. Not quite sure what the point is there. Other parts are clearly copy-n-pasted with minor changes from Wikipedia without attribution, which is funny to see in a document basically claiming that's what the other side is doing.
  - sdenton4 4y ago
    My partner is a paralegal, and just yesterday I was marveling that there's no concept of voting legal briefs, just wholesale copying of blocks of text without attribution. You cite /cases/ but briefs are fair game for what anyone outside the legal profession would call plagiarism.
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anewguy9000 4y ago
ive come to think that if you open source your code, u should only use MIT. ie. make it a gift. because once your code is just out there in the open, you cant pretend you still control it. suddenly you're dependent upon lawyers. thats icky. i mean anyone could be using this guy's code to do something against the license, and dude would never know. well, if you give a shit, maybe don't leave your code sitting in the open on a microsoft server? either set it free, or don't.
- NayamAmarshe 4y ago
  That's a really bad take. GPL or AGPL License is not because someone doesn't want their code to be out, it's because we believe in fair contributions, ownership and building the projects in a community. Open Source with GPL is a Tit for Tat system (you either make things better for everybody, or you don't), not 'get altruism for free' system.
  - charcircuit 4y ago
    >Open Source with GPL is a Tit for Tat system (you either make things better for everybody, or you don't) The GPL doesn't force you to make software better for everyone. People and communities are free to steal the project, make it better, and keep it all to themselves.
    - NayamAmarshe 4y ago
      > The GPL doesn't force you to make software better for everyone. It forces you to contribute. Read what GPLv3 states: - Include a copy of the full license text - State all significant changes made to the original software - Make available the original source code when you distribute any binaries based on the licensed work - Include a copy of the original copyright notice Watch Linus' interview with the Intel CEO where he talks about what open source is. He clearly mentions that it's a system where personal reasons end up benefitting everyone involved. When someone contributes code for their own need, collectively everyone ends up benefitting from the individual changes. It's not an altruistic system, nobody is doing this to please corpos like MIT license usually is.
whoopdedo 4y ago
Funny how it's "Microsoft GitHub" when something bad is being said about it. But it's just "GitHub" for positive things.
- sirsinsalot 4y ago
  Anyone who has known Microsoft from back in the day knows attributing anything positive to them is likely an error
  - lokar 4y ago
    Or anyone using azure at scale today
  - Oxidation 4y ago
    Keeping ancient software working without rebuilding is quite impressive, to be fair.
    - saddist0 4y ago
      Which ancient software? All of them have been rebuilt IMO.
      - CuriousCosmic 4y ago
        Windows Executables. For applications not touching hardware, they should still run on any newer version of Windows provided the Windows build still supports that instruction set. i.e. the original Windows 1.0 Hello World demo (16-bit exe compiled in Win 1.0) still runs on Windows 10 x32 [1]. 1. https://virtuallyfun.com/2020/05/22/examining-windows-1-0-hello-c/ https://virtuallyfun.com/2020/05/22/examining-windows-1-0-he...
  - KyeRussell 4y ago
    Yes, we get it. Microsoft bad. Very good. The reality is that quite a lot of “us” are still using GitHub, including the Microsoft-built/directed parts of it, willingly. A company can be hideously evil and still make a single useful thing in ~50 years.
tester756 4y ago
is this new Oracle vs. Google?
- lokar 4y ago
  That was just the api. This is fully functional sections of code.
- klyrs 4y ago
  More like SCO vs Linux, but in reverse.
in3d 4y ago
It would be very bad for the tech progress in the West if these types of lawsuits succeed, while China can do this. The legislature would have to act to explicitly legalize it and that could take years and it could be too late by then. The US is already falling behind China in the AI progress.
- brigandish 4y ago
  I don't follow. Aside from the ignoring of all ethical and legal concerns built up in multiple societies to this point - if Microsoft loses this type of lawsuit, why would AI not continue to be researched? Don't they just have to build in attribution into the tool and everything's legal again?
  - heavyset_go 4y ago
    Terms of many licenses require more than just attribution, but also the inclusion of the copyright notices and licenses verbatim. MIT, BSD, MPL, GPL, LGPL, AGPL, etc all require those at minimum. Then there is the application of the licenses themselves. GPL licensed code stipulates that its inclusion in a new work means that the new work must be licensed under the GPL, as well. AGPL and LGPL have similar terms, but with different stipulations.
    - xyzzy_plugh 4y ago
      Indeed, not to mention that you cannot just mix licenses. The vast majority of licenses are not compatible. It just so happens that some popular ones are, but in general the output is either GPL-like, MIT-like, or incompatible.
  - seadan83 4y ago
    AFAIK copilot suggestions are sourced from a model that is trained on many sources. Presumably when it claims a solution (an autocomplete suggestion), it would be using data taken from dozens, maybe hundreds of examples. How does a person even provide attribution in this case? It's like saying, I know 'polo' comes after Marco not only because I was at your pool party where we all signed NDAs, but also because I've been to dozens of other pool parties. How do I know where to attribute this knowledge? In part that knowledge is due to the prevalence of examples and not just any single example.
sirsinsalot 4y ago
I can imagine a lot less code being open sourced purely to counter against this kind of mining. I'd be all for it if creators were compensated.
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RcouF1uZ4gsC 4y ago
This may actually backfire on Butterick. I am sure Microsoft has a very competent legal department and they have given a lot of thought to the matter. Most of these articles assume that Butterick will win, but I don’t think that’s a given. If the court rules that this is fair use, then that could set precedent for even further applications of CoPilot and remove some of the legal uncertainty around its use.
paxys 4y ago
Every analysis of this filing by legal professionals I have seen online concludes that Microsoft will use a textbook fair use defense and will succeed at it. There was a lot of precedent set in this area by Google v. Oracle.
- vbezhenar 4y ago
  I wouldn't be surprised to find out that MS themselves secretly supported this case to win it and to show potential customers that this tool is safe.
- heavyset_go 4y ago
  I'm curious to what that precedent is, given that Copilot consumes, reproduces and distributes much more than simple APIs, like full implementations.
  - paxys 4y ago
    To start, you have to treat copyrighted works on Github as a whole (say the entire project/repository or at least substantial parts of it) rather than look at the few lines that copilot copied in isolation. With that context: 1. The derived work is transformative. It uses the original as inspiration but the end result is substantially different. 2. Only a trivial amount of the work is copied (a few lines of code out of thousands/millions). 3. It is hard to prove that the creators of the original work were damaged by copilot (for example did they lose any customers or revenue?) This is normally the single biggest test in such cases.
    - xyzzy_plugh 4y ago
      > you have to treat copyrighted works on Github as a whole (say the entire project/repository or at least substantial parts of it But that's not how copyright works here, so this analysis seems irrelevant. > 1. The derived work is transformative. It uses the original as inspiration but the end result is substantially different. It's not. Changing variable names isn't a substantial difference. > 2. Only a trivial amount of the work is copied (a few lines of code out of thousands/millions). That doesn't matter. Relative size doesn't matter, absolute size does. > 3. It is hard to prove that the creators of the original work were damaged by copilot (for example did they lose any customers or revenue?) This is normally the single biggest test in such cases. ??? No? You appear to have no clue how copyright works or what copyright infringement does. It's damaging solely in that you don't have the right to reproduce it without my permission. It's mine.
wanderingmind 4y ago
What we need is a new license (like AGPL did for cloud) that prevents machines from ingesting and learning from the code. And all open source software who has trouble with copilot then relicense to this specific license avoid this. Involving government will be a terrible approach that will stifle innovation. EDIT:1. Not a lawyer, but, unlike copyright that just blocks usage, I think license can be more creative and will help to preserve the FOSS spirit. For example, a license can ask for access to be provided to the source code, other data collected and model file that makes use of your code. Releasing the copilot model in open should be enough to make MSFT backoff.
- bugfix-66 4y ago
  The No-AI 3-Clause License: https://bugfix-66.com/7a82559a13b39c7fa404320c14f47ce0c304facc51cdacbba3f99654652bf428 https://bugfix-66.com/7a82559a13b39c7fa404320c14f47ce0c304fa... This is the only license to explicitly disallow language model training and inference using your code. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: ... 3. Use in source or binary form for the construction or operation of predictive software generation systems is prohibited. All other licenses seem to apply only when the code is emitted, and therefore can't really protect you. This attacks the problem at the source. If Microsoft trains Copilot on your code, they are unambiguously violating an explicit condition that controls use. Otherwise, it's just the standard BSD 2-Clause License.
  - wanderingmind 4y ago
    I think its a good start. Not a lawyer, But my guess is the definition around predictibe systems need to be defined by courts. If a system just collects and curates, but then is fully firewalled from the transforming or learning module, is that part of predictive systems? Its a fascinating start and I will be observing its adaption.
  - fargle 4y ago
    unfortunately that's a terrible idea: 1. copyright licenses cannot be imagined to limit what you do with the legal copy of your software. it's not what copyright is or does. 2. it's also no longer an open source license, OSI, DFSG, GPL are all incompatible and would create practical problems for your would be users this is a problem that doesn't need to be solved; your license likely already prohibits this - copying without attribution, re-licensing, or license-washing. what remains is courts fine tuning what is "fair use" snippets or not, and it's not likely to come down as OK to use snippets like the fast sqrt as fair use. same whether it's a human abusing fair use, or a company, or a machine used by either of those. the AI aspect has no legal bearing and changes nothing - it just made the problem practical enough to actually happen. open source people and projects that have had their licenses violated need to sue and defend their existing copyrights.
Qem 4y ago
Does FSF have a position on this issue already?
- ThrowawayR2 4y ago
  The FSF has funded a set of white papers on the topic: https://www.fsf.org/news/publication-of-the-fsf-funded-white-papers-on-questions-around-copilot https://www.fsf.org/news/publication-of-the-fsf-funded-white... . The one by Bradley Kuhn, which is likely closest to the FSF's official position, concludes that CoPilot is problematic.
  - sdenton4 4y ago
    And yet copilot is less problematic than RMS.
whatever1 4y ago
I think this renaissance of nlp for coding will be the death sentence for open source software. Nobody will be able to convince their manager to make their project open source when it can be so easily crawled and used in seconds by competitors without any attribution.
- senko 4y ago
  If that's all it takes to kill open source, then I welcome its demise. Rather, it may spell doom for "let's throw this over the fence and have unpaid suckers work for us on it" software, which would be a net benefit for aociety.
- chii 4y ago
  > it can be so easily crawled and used in seconds by competitors without any attribution. this can already happen today. ML models and such don't really change this aspect of open source.
  - whatever1 4y ago
    But you are still liable if you steal code. With this NLP approach, it is not obvious where the code came from. Could be a mixture of codes that produced the outcome, all stolen, but you will have difficult time proving it.
    - chii 4y ago
      > With this NLP approach, it is not obvious where the code came from so if this exact same action was done by a human today, instead of using an ML approach, how does the copyright holder of today catch them? Why can't the same method be used for an ML produced code base?
    - seadan83 4y ago
      What is your take on "steal code?" Are you thinking substantial portions, like a control system or the code behind a semantic image processor, or are you thinking the implementation behind 'reverse a linked list?'
bluedino 4y ago
Now I'm just imagining if you trained co-pilot on all kinds of legal libraries, what lawsuits it could come up with.
- AmIDev 4y ago
  I assume that if they train the model only on GPLv2, then the generated code might be legal to be used under GPLv2 license. Similar could be done with some other open source licenses as well.
gwillen 4y ago
The desired class-action status of this suit feels like a stretch to me. Typically, in a class action, the defendant's alleged behavior unquestionably harms the members of the class, which is why it's okay to make them party to the suit without their consent. In this case, I suspect that only a minority of the members of the purported class actually believe they were harmed by the defendant's actions, and some class members are _paying customers_ of the defendant's product based on the conduct at issue. (Which surely creates some kind of estoppel issue, aside from the dubiousness of the class certification in the first place.) Could some enterprising attorney get a bunch of members of the purported class to sign on to a brief opposing class certification? (I don't know if that would be an amicus or what, but surely those people have some kind of standing here.) (Enterprising attorneys: my email address is in my profile.) I guess the problem here is with "enterprising" -- there's no money there, except to Microsoft, who I imagine might be barred by legal ethics from funding something like this...
- nullc 4y ago
  Ultimately losing a case like this might be better for super large players like Microsoft in the long run: they'll staple blanket permissions (and maybe even indemnities for third party code you submit) in the terms of service and go ahead training their own proprietary models. But players from startups to open source projects that lack market power will then face an impossible moat if they want to develop their own similar models.
- nl 4y ago
  > Could some enterprising attorney get a bunch of members of the purported class to sign on to a brief opposing class certification? Yes, I'd sign onto this (and I have open source code on GitHub that presumably (hopefully!) is being included).
- drran 4y ago
  CopyLoot model of business ruins Open Source model of business (AKA Open Core) and Open Source movement in general.
breck 4y ago
#LicensesAreForLosers
iLoveOncall 4y ago
Open-source licenses were a mistake. "Do whatever the fuck you want" should be the only open-source license.
- heavyset_go 4y ago
  Open source licenses are a response to the tragedy of the commons that follows the "do whatever you want" mantra. It turns out what many developers want is to share code in ways that keep the commons healthy and protect user freedoms.
hnaccy 4y ago
Why are programmers so suicidal? A giant corporation openly steals code from millions of devs and uses to try and automate us and programmers cheer it on. A billionaire with known poor labor practices buys Twitter and twitter devs make no attempt to organize as lab instead they just write toothless statements.
- phendrenad2 4y ago
  I don't see many people cheering it on here, in fact most of the news about copilot has been negative. Where do you see positivity?
  - hnaccy 4y ago
    bulk of the top replies on post this week seem to be pro-copilot: https://news.ycombinator.com/item?id=33457488 https://news.ycombinator.com/item?id=33457488 https://news.ycombinator.com/item?id=33457933 https://news.ycombinator.com/item?id=33457933 https://news.ycombinator.com/item?id=33459343 https://news.ycombinator.com/item?id=33459343 https://news.ycombinator.com/item?id=33458943 https://news.ycombinator.com/item?id=33458943 https://news.ycombinator.com/item?id=33457737 https://news.ycombinator.com/item?id=33457737 https://news.ycombinator.com/item?id=33486605 https://news.ycombinator.com/item?id=33486605
    - phendrenad2 4y ago
      6 posts in a thread with 232 points? This is not good math.
- bakugo 4y ago
  > A giant corporation openly steals code from millions of devs and uses to try and automate us and programmers cheer it on. Actual programmers don't cheer it on. Only modern """programmers""" aka professional CTRL+V pressers, the kinds of people that usually "write" software in languages like javascript by importing a few hundred open source libraries and jamming them together until it vaguely does what they want. Copilot is good for these people because using others' code is all they do anyway, AI just helps them do it more efficiently, and without having to worry about all those pesky licenses.
amusingimpala75 4y ago
Well, let’s just leak the Windows source code into the training set. Then M$ will have no choice but to shut it down.
phendrenad2 4y ago
It's funny how companies can become their own worst enemy, which Microsoft has been since it acquired Github. Github itself recommends that you use the GPL license (see the Github-run https://choosealicense.com/ https://choosealicense.com/). This has likely led to many projects choosing GPL/BSD/Apache/MIT by default, simply because the author didn't understand the differences between them. I've found that often, once people take the time to educate themselves about the various licenses, they instead prefer a highly-permissive license like The Unlicense (https://unlicense.org/ https://unlicense.org/).
- generic-husky 4y ago
  Why did you lump MIT in with the un-premissive licenses?
  - phendrenad2 4y ago
    Any license that requires attribution is not permissive enough to be free from copilot legal uncertainty.
tikbalang_koder 4y ago
Letting Copilot "fill-up" portions of the code "learned" from open source code IMHO is fair. Most devs worth their salt even without using Copilot would eventually write approximately the same code given the same requirement. What should be taken to court is if code for an entire feature or features taken verbatim from somebody else's project or work.
cookiengineer 4y ago
Microsoft's major arguments: - as long as the reuse of code is transformative enough, they consider it fair use - yet Microsoft's Copilot is not trained on Microsoft codebases, and not on Windows source code - yet Microsoft files DMCA takedown requests on Windows source code leaks As long as these are the case, Microsoft's argument of "Everything is considered fair use, except our stuff" is flawed in a lawsuit. That is not how copyright works. That is why Copilot has to be considered an attack on a specific group of software, and a specific group of people. And that is my own opinion. Either get rid of copyright alltogether (including Microsoft's arsenal of patents for it) or not. But don't try to play the hero of open source while you are stealing their stuff, specifically.
- renonce 4y ago
  > yet Microsoft's Copilot is not trained on Microsoft codebases, and not on Windows source code I don't think Copilot is trained on any private GitHub repository nor anything secret, not just Microsoft's private code
- alkonaut 4y ago
  GitHub source code is different from windows code though. This isn’t a moral argument but a dry legal one. Microsoft doesn’t control the rights for a lot of the windows source code because it isn’t their copyright to begin with. Meanwhile even private repos on GitHub are subject to uses like this through the terms of service iirc. So from a moral perspective I’d agree with you, but I don’t see how this could fly legally. I’m pretty sure Microsoft has had six armies of IP lawyers independently come to this conclusion.
  - Tozen 4y ago
    Terms of service does not mean the forfeiting of user's copyright. There is an argument to what extent snippets of code is fair use versus when it becomes excessive and violates the copyright. You are right though, battling Microsoft in court will be no easy fight, and it will probably be a long one. However, I think the sharks are in the water and smell blood (money), as many lawyers see weaknesses in Microsoft's arguments and justifications (excuses).
skc 4y ago
Something tells me this might be welcome news to Microsoft. I would assume this was anticipated.
- insanitybit 4y ago
  There's no way that Microsoft didn't spend a lot of time derisking this with lawyers internally before release. This will be interesting to see play out but my bet is that it'll take 5+ years to get a result. I'm not a lawyer but I think MS will win quite easily.
psychphysic 4y ago
I hope Microsoft wins. The result of a lawsuit like this will add caché many big companies bullying smaller ones.
- generic-husky 4y ago
  I hope they lose so that the wishes and legal rights of the people who made GitHub great in the first place remain respected. GitHub is almost like a social network in the way it relies on "the community". Stealing people's code (who made it great) by regurgitating it through an ML code laundering machine, isn't very fair imho.
  - psychphysic 4y ago
    I don't think anyone who wishes others not to learn from their code should upload it publically to GitHub.
    - generic-husky 4y ago
      ah yes, copy 'n pasting (or the ML equivalant) is truly learning. You can learn from code by just looking at it, working with it (i.e. transforming it into a truly derivative/creative work) there's little value to be had in having some automated program spit out chunks of code (ripped from their original context) that you don't fully understand or without the tool never could have conceived. Also looking at some publicly available code (to learn) still respects the license, co-pilot possibly doesn't.
      - psychphysic 4y ago
        You can think what you like. But Microsoft isn't being sued to stop copilot (which is trash really) it's to stop further development and an AI which will be to programmers what AlphaGo was to human players. The workforce in the industry is desperate for a way to slow AI down (every industry workforce) and they found a way to try.
yellowapple 4y ago
I'm still waiting for someone to contaminate Copilot with e.g. leaked Windows source code bits to "launder" them for free reuse.
causi 4y ago
Letting trillion-dollar companies freely grind up the collective creative output of planet earth into digital meat slurry to fuel automatic content-generators seems like a bad thing.
- tannhaeuser 4y ago
  And letting them do this by exposing your minute code edits in response to issues as a developer to make your job eventually redundant and have it taken over by ML seems like a worse thing even.
  - wizzwizz4 4y ago
    > to make your job eventually redundant and have it taken over by ML This will last until the programmers run out. These systems will have a bad time writing in any language they haven't got extensive training data in.
    - CuriouslyC 4y ago
      Software is only going to become more ubiquitous, programmers won't run out, they'll just shift up to higher level abstractions and more diagnostic/administrative work. Think "AI doctor" and "AI manager" rather than code slinger.
  - mirekrusin 4y ago
    AI taking jobs is not an argument. License violation is.
- sharperguy 4y ago
  Would be nice if they released the model, stable diffusion style. In fact, this kind of legal action could prevent disclosure of any AI models in the future.
- PoignardAzur 4y ago
  > Letting trillion-dollar companies freely grind up the collective creative output of planet earth into digital meat slurry to fuel automatic content-generators seems like a bad thing. The description is pretty loaded, though. "Grind up" evokes Microsoft taking away the creative output and destroying it forever to create an inferior product. When in fact, the original code is still here, you just also have a smart auto-completion tool built with it. Yes, there are concerns about license laundering and corporations taking advantage of open-source code without contributing to it, but these concerns are a lot more subtle and nuanced than "megacorporations are grinding up the collective output of the planet into slurry". My hot take: piracy everywhere, and screw intellectual property. It does more good for the world if anyone is allowed to build upon what anyone else has done before without having to ask for permission first, even if it makes monetization harder.
nurettin 4y ago
This must be how Oracle felt when they were trying to protect their java declarations from android's clutches. M$ is likely to win this case.
aslak 4y ago
This is pretty much just stomping on sand. Law and positive norms rarely can constrain a breakthrough tech like this.
- dev_tty01 4y ago
  >Law and positive norms rarely can constrain a breakthrough tech like this. True enough, but the point of this type of lawsuit is to define the legal framework within which the tech can operate. The law could end up saying that AI generated code from public, but license constrained code, must abide by the license of the original code. Or maybe there are rulings that help to better define "fair use" within this context. There is clearly significant legal ambiguity so this and other suits will help to clarify things. Of course those laws can't constrain someone from using the tech on their own computer how they want, but most public companies will create policies to keep their workforce within the lines of the defined legal framework.
Nginx487 4y ago
Where to sign a petition against luddites? They stole my `i` variable from `for` cycle.
mhfs 4y ago
What’s the risk exposure for startups whose engineers are using Copilot to write proprietary private code?
FrankyHollywood 4y ago
Can neural network tensors be seen as an encoding? If I copy source code and save it in an UTF-8 text file it is subjected to licensing. Now if the same information is represented in a neural network all of a sudden this 'trained data' is intelligence. It's a complex representation of the data, and some data may be a bit scrambled, but still in a way it's also an encoding of source data which should be treated as having an origin and an author.
ccbccccbbcccbb 4y ago
One doesn't simply buy GitHub for $7.5e+9 to foster the community and the ideals of open source. Moreover, ideals like that don't simply pop out of the blue and right into the collective psyche without comparable infusions. To drive it home in case lines between dots are not obvious: open source ideology, github and copilot are merely successive stages in the process of production of profit. The next step is obvious, get rid of human programmers and save on their wages. This is where ideals lead.
macmac 4y ago
Nobody seems to consider the fact that non-US law is also applicable to this issue. GitHUB ToS are subject to US/California law, but that does not mean that GitHub must not respect copyright in other jurisdictions where the service is provided. Many common open source licenses do not have a governing law clause (i.e. BSD and MIT). Since one of the primary defences for Copilot is fair use, and this concept does not exist in EU it would seem that Copilot is even more legally iffy in other jurisdictions.
UltraViolence 4y ago
I do agree with this case: Microsoft is illegally profiting from other people's source code. Just because the source code is open and sometimes free to use, does not mean Microsoft can sell a service based on it.
dev_tty01 4y ago
It seems that Microsoft is conflating "public" with "unlicensed." Sadly, it is a common practice. Humans are really good at rationalizing their way down the slippery slope. "I'll just use this clever way to loop over that structure. Well, actually, the whole function pretty much does what I need, I'll just drop that function in. Hmm, I could just change the API of this module a bit and that will work nicely..." It doesn't take long for learning to turn into copyright violation. I've seen this repeatedly while reviewing code of junior engineers. The engineers aren't malicious. They just sort of slide into it over time. As Copilot gets better and better, I just don't see how it doesn't end up violating license terms, at least occasionally. Even if much of its output is fair use, as long as some of it is violating licenses, MS has a problem.

322 points by redbell 4y ago

This is big because it sets a precedent for broader usage of these "copy and make similar" ML models. For example, I believe it'll impact the future of AI image generation.

ocdtrekkie 4y ago
I have a crazy theory Microsoft may have been seeking this outcome. Microsoft isn't stupid, and Copilot is so obviously legally dubious that it stretches reason they launched it without better legal justification or discourse. Microsoft employees basically treat any notion like it isn't legal as nonsense, even though they lack any real precedent to justify the position. Is it plausible they might have launched a product almost certain to face a legal case in order to establish precedent for using training data? The company is working in this industry and it likely needs to know for future projects that are harder or costlier to build.
- deleted 4y ago
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throwaway675309 4y ago

Even if this succeeds (I sincerely hope that it does not, as I believe these to be sufficiently transformative as to be considered fair use), it doesn't functionally matter in the long term: 1. The ability to be able to both run and train these models is going to eventually be plausible on a home machine with even modest hardware. 2. These models, e.g. such as one scraped from all of the code on GitHub, will be publicly available via torrent or whatever. 3. People will be able to run it locally as an integrated plug-in in their IDE of choice, jetbrains, vs code, etc. 4. You'll never know if somebody has lifted a bit of code in violation of a license anymore than you would be able to tell if somebody copy-pasted from stack overflow without attribution in any commercial application

ezoe 4y ago
We can't expect a massive improvement on computer performance anymore. So it will never come the day household computer can finish training the model equivalent of Github Copilot in practical time.
- Gigachad 4y ago
  They can just add more cores and more power. With modern languages like Rust making multi threading more accessible, I expect we will double down on this. You could also crowd source this, some distributed application where everyone puts their home machines towards training.
  - PartiallyTyped 4y ago
    > You could also crowd source this, some distributed application where everyone puts their home machines towards training. That's how Leela Chess 0 (LC0) replicated the Alpha-zero performance. In fact, this is actually not that difficult. Assuming you have the means to orchestrate it; all it takes is loading the weights and a batch, computing backprop; and submitting it to the central system which aggregates the gradient updates and then updates the whole network and push new weights (kinda how bitcoin creates a new block). This is no different to gradient accumulation; just "distributed". In-fact, the system could offload a large number of batches because the returned update is O(1) space to return where n is for batch size; it's just that the O(1) is the size of the network.
jrockway 4y ago
> You'll never know if somebody has lifted a bit of code in violation of a license anymore than you would be able to tell if somebody copy-pasted from stack overflow without attribution in any commercial application Wasn't this the subject of millions of dollars of litigation between Oracle and Google?
- thih9 4y ago
  For others like me, missing context: > Google’s copying of so-called application programming interfaces from Oracle’s Java SE was an example of fair use, the court held (…). Source: https://edition.cnn.com/2021/04/05/tech/google-oracle-supreme-court-ruling/index.html https://edition.cnn.com/2021/04/05/tech/google-oracle-suprem...

greenyoda 4y ago

Big discussion a couple of days ago: https://news.ycombinator.com/item?id=33457063 https://news.ycombinator.com/item?id=33457063

Sunspark 4y ago

For awhile now I have not wanted to use GitHub because of this tool. Why should anyone write code for Microsoft for free when Microsoft charges for software? Perhaps options like GitLab and others should be considered instead.

jszymborski 4y ago
I've certainly been enjoying Codeberg for my personal development.
cercatrova 4y ago
I like Copilot and use it, so I'll be glad to continue using it and it can use my code to help train it. It's a fair exchange in my view.
- mikro2nd 4y ago
  That's cool for you. For the rest of us, however, it would be terribly simple for Github to provide a profile/account setting that allows people to opt out -- perhaps on a per-repo level as well as per-account. Yet they don't. I wonder why not.
scoot 4y ago
There are thousands of open source libraries used legally in thousands of commercial products, so I'm not sure I understand your point.
hsbauauvhabzb 4y ago
Until someone forks/mirrors your project on GitHub
Gigachad 4y ago
If you don’t want people to use your code, consider making your repos private.
- xigoi 4y ago
  What if you want people to use your code, but not for proprietary software?

theknocker 4y ago

compsciphd 4y ago

So I recently had a discussion with a copyright academic expert, and based on what he said to me, I'm wondering how they are suing. Basically, the common conception of all produced work being automatically copyrighted is correct. However, one can only sue for copyright infringement for works that have a registered copyright (one can register after the fact, one is then just limited in the damages they can sue for, i.e. no enhanced damages for violations before registration). My assumption is that even github copilot is violating peoples copyright, since the copyright for the vast majority of the code is not registered (does anyone actually pay to register the copyright on their code?), it can make it difficult to sue for damages, especially as a form of class action (where presumambly the class that has registered their copyright is minimal in size). was I informed incorrectly (I'm also wondering, if this is true, how this would impact enforcement of GPL type licenses in the USA, as again, the vast majority of code licensed under it isn't registered, so while one could register it after the fact, how many people really do this?)

banana_giraffe 4y ago
They're suing for breach of license, because CoPilot copies code and omits any mention of the source license, which they claim is not within Fair Use. You can read the complaint: https://www.documentcloud.org/documents/23264658-github-complaint https://www.documentcloud.org/documents/23264658-github-comp... It's a bit .. odd. Seems to be partially a complaint, and partially a code review of the couple of examples they cite. Not quite sure what the point is there. Other parts are clearly copy-n-pasted with minor changes from Wikipedia without attribution, which is funny to see in a document basically claiming that's what the other side is doing.
- sdenton4 4y ago
  My partner is a paralegal, and just yesterday I was marveling that there's no concept of voting legal briefs, just wholesale copying of blocks of text without attribution. You cite /cases/ but briefs are fair game for what anyone outside the legal profession would call plagiarism.
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anewguy9000 4y ago

ive come to think that if you open source your code, u should only use MIT. ie. make it a gift. because once your code is just out there in the open, you cant pretend you still control it. suddenly you're dependent upon lawyers. thats icky. i mean anyone could be using this guy's code to do something against the license, and dude would never know. well, if you give a shit, maybe don't leave your code sitting in the open on a microsoft server? either set it free, or don't.

NayamAmarshe 4y ago
That's a really bad take. GPL or AGPL License is not because someone doesn't want their code to be out, it's because we believe in fair contributions, ownership and building the projects in a community. Open Source with GPL is a Tit for Tat system (you either make things better for everybody, or you don't), not 'get altruism for free' system.
- charcircuit 4y ago
  >Open Source with GPL is a Tit for Tat system (you either make things better for everybody, or you don't) The GPL doesn't force you to make software better for everyone. People and communities are free to steal the project, make it better, and keep it all to themselves.
  - NayamAmarshe 4y ago
    > The GPL doesn't force you to make software better for everyone. It forces you to contribute. Read what GPLv3 states: - Include a copy of the full license text - State all significant changes made to the original software - Make available the original source code when you distribute any binaries based on the licensed work - Include a copy of the original copyright notice Watch Linus' interview with the Intel CEO where he talks about what open source is. He clearly mentions that it's a system where personal reasons end up benefitting everyone involved. When someone contributes code for their own need, collectively everyone ends up benefitting from the individual changes. It's not an altruistic system, nobody is doing this to please corpos like MIT license usually is.

whoopdedo 4y ago

Funny how it's "Microsoft GitHub" when something bad is being said about it. But it's just "GitHub" for positive things.

sirsinsalot 4y ago
Anyone who has known Microsoft from back in the day knows attributing anything positive to them is likely an error
- lokar 4y ago
  Or anyone using azure at scale today
- Oxidation 4y ago
  Keeping ancient software working without rebuilding is quite impressive, to be fair.
  - saddist0 4y ago
    Which ancient software? All of them have been rebuilt IMO.
    - CuriousCosmic 4y ago
      Windows Executables. For applications not touching hardware, they should still run on any newer version of Windows provided the Windows build still supports that instruction set. i.e. the original Windows 1.0 Hello World demo (16-bit exe compiled in Win 1.0) still runs on Windows 10 x32 [1]. 1. https://virtuallyfun.com/2020/05/22/examining-windows-1-0-hello-c/ https://virtuallyfun.com/2020/05/22/examining-windows-1-0-he...
- KyeRussell 4y ago
  Yes, we get it. Microsoft bad. Very good. The reality is that quite a lot of “us” are still using GitHub, including the Microsoft-built/directed parts of it, willingly. A company can be hideously evil and still make a single useful thing in ~50 years.

tester756 4y ago

is this new Oracle vs. Google?

lokar 4y ago
That was just the api. This is fully functional sections of code.
klyrs 4y ago
More like SCO vs Linux, but in reverse.

in3d 4y ago

It would be very bad for the tech progress in the West if these types of lawsuits succeed, while China can do this. The legislature would have to act to explicitly legalize it and that could take years and it could be too late by then. The US is already falling behind China in the AI progress.

brigandish 4y ago
I don't follow. Aside from the ignoring of all ethical and legal concerns built up in multiple societies to this point - if Microsoft loses this type of lawsuit, why would AI not continue to be researched? Don't they just have to build in attribution into the tool and everything's legal again?
- heavyset_go 4y ago
  Terms of many licenses require more than just attribution, but also the inclusion of the copyright notices and licenses verbatim. MIT, BSD, MPL, GPL, LGPL, AGPL, etc all require those at minimum. Then there is the application of the licenses themselves. GPL licensed code stipulates that its inclusion in a new work means that the new work must be licensed under the GPL, as well. AGPL and LGPL have similar terms, but with different stipulations.
  - xyzzy_plugh 4y ago
    Indeed, not to mention that you cannot just mix licenses. The vast majority of licenses are not compatible. It just so happens that some popular ones are, but in general the output is either GPL-like, MIT-like, or incompatible.
- seadan83 4y ago
  AFAIK copilot suggestions are sourced from a model that is trained on many sources. Presumably when it claims a solution (an autocomplete suggestion), it would be using data taken from dozens, maybe hundreds of examples. How does a person even provide attribution in this case? It's like saying, I know 'polo' comes after Marco not only because I was at your pool party where we all signed NDAs, but also because I've been to dozens of other pool parties. How do I know where to attribute this knowledge? In part that knowledge is due to the prevalence of examples and not just any single example.

sirsinsalot 4y ago

I can imagine a lot less code being open sourced purely to counter against this kind of mining. I'd be all for it if creators were compensated.

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RcouF1uZ4gsC 4y ago

This may actually backfire on Butterick. I am sure Microsoft has a very competent legal department and they have given a lot of thought to the matter. Most of these articles assume that Butterick will win, but I don’t think that’s a given. If the court rules that this is fair use, then that could set precedent for even further applications of CoPilot and remove some of the legal uncertainty around its use.

paxys 4y ago

Every analysis of this filing by legal professionals I have seen online concludes that Microsoft will use a textbook fair use defense and will succeed at it. There was a lot of precedent set in this area by Google v. Oracle.

vbezhenar 4y ago
I wouldn't be surprised to find out that MS themselves secretly supported this case to win it and to show potential customers that this tool is safe.
heavyset_go 4y ago
I'm curious to what that precedent is, given that Copilot consumes, reproduces and distributes much more than simple APIs, like full implementations.
- paxys 4y ago
  To start, you have to treat copyrighted works on Github as a whole (say the entire project/repository or at least substantial parts of it) rather than look at the few lines that copilot copied in isolation. With that context: 1. The derived work is transformative. It uses the original as inspiration but the end result is substantially different. 2. Only a trivial amount of the work is copied (a few lines of code out of thousands/millions). 3. It is hard to prove that the creators of the original work were damaged by copilot (for example did they lose any customers or revenue?) This is normally the single biggest test in such cases.
  - xyzzy_plugh 4y ago
    > you have to treat copyrighted works on Github as a whole (say the entire project/repository or at least substantial parts of it But that's not how copyright works here, so this analysis seems irrelevant. > 1. The derived work is transformative. It uses the original as inspiration but the end result is substantially different. It's not. Changing variable names isn't a substantial difference. > 2. Only a trivial amount of the work is copied (a few lines of code out of thousands/millions). That doesn't matter. Relative size doesn't matter, absolute size does. > 3. It is hard to prove that the creators of the original work were damaged by copilot (for example did they lose any customers or revenue?) This is normally the single biggest test in such cases. ??? No? You appear to have no clue how copyright works or what copyright infringement does. It's damaging solely in that you don't have the right to reproduce it without my permission. It's mine.

wanderingmind 4y ago

What we need is a new license (like AGPL did for cloud) that prevents machines from ingesting and learning from the code. And all open source software who has trouble with copilot then relicense to this specific license avoid this. Involving government will be a terrible approach that will stifle innovation. EDIT:1. Not a lawyer, but, unlike copyright that just blocks usage, I think license can be more creative and will help to preserve the FOSS spirit. For example, a license can ask for access to be provided to the source code, other data collected and model file that makes use of your code. Releasing the copilot model in open should be enough to make MSFT backoff.

bugfix-66 4y ago
The No-AI 3-Clause License: https://bugfix-66.com/7a82559a13b39c7fa404320c14f47ce0c304facc51cdacbba3f99654652bf428 https://bugfix-66.com/7a82559a13b39c7fa404320c14f47ce0c304fa... This is the only license to explicitly disallow language model training and inference using your code. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: ... 3. Use in source or binary form for the construction or operation of predictive software generation systems is prohibited. All other licenses seem to apply only when the code is emitted, and therefore can't really protect you. This attacks the problem at the source. If Microsoft trains Copilot on your code, they are unambiguously violating an explicit condition that controls use. Otherwise, it's just the standard BSD 2-Clause License.
- wanderingmind 4y ago
  I think its a good start. Not a lawyer, But my guess is the definition around predictibe systems need to be defined by courts. If a system just collects and curates, but then is fully firewalled from the transforming or learning module, is that part of predictive systems? Its a fascinating start and I will be observing its adaption.
- fargle 4y ago
  unfortunately that's a terrible idea: 1. copyright licenses cannot be imagined to limit what you do with the legal copy of your software. it's not what copyright is or does. 2. it's also no longer an open source license, OSI, DFSG, GPL are all incompatible and would create practical problems for your would be users this is a problem that doesn't need to be solved; your license likely already prohibits this - copying without attribution, re-licensing, or license-washing. what remains is courts fine tuning what is "fair use" snippets or not, and it's not likely to come down as OK to use snippets like the fast sqrt as fair use. same whether it's a human abusing fair use, or a company, or a machine used by either of those. the AI aspect has no legal bearing and changes nothing - it just made the problem practical enough to actually happen. open source people and projects that have had their licenses violated need to sue and defend their existing copyrights.

Qem 4y ago

Does FSF have a position on this issue already?

ThrowawayR2 4y ago
The FSF has funded a set of white papers on the topic: https://www.fsf.org/news/publication-of-the-fsf-funded-white-papers-on-questions-around-copilot https://www.fsf.org/news/publication-of-the-fsf-funded-white... . The one by Bradley Kuhn, which is likely closest to the FSF's official position, concludes that CoPilot is problematic.
- sdenton4 4y ago
  And yet copilot is less problematic than RMS.

whatever1 4y ago

I think this renaissance of nlp for coding will be the death sentence for open source software. Nobody will be able to convince their manager to make their project open source when it can be so easily crawled and used in seconds by competitors without any attribution.

senko 4y ago
If that's all it takes to kill open source, then I welcome its demise. Rather, it may spell doom for "let's throw this over the fence and have unpaid suckers work for us on it" software, which would be a net benefit for aociety.
chii 4y ago
> it can be so easily crawled and used in seconds by competitors without any attribution. this can already happen today. ML models and such don't really change this aspect of open source.
- whatever1 4y ago
  But you are still liable if you steal code. With this NLP approach, it is not obvious where the code came from. Could be a mixture of codes that produced the outcome, all stolen, but you will have difficult time proving it.
  - chii 4y ago
    > With this NLP approach, it is not obvious where the code came from so if this exact same action was done by a human today, instead of using an ML approach, how does the copyright holder of today catch them? Why can't the same method be used for an ML produced code base?
  - seadan83 4y ago
    What is your take on "steal code?" Are you thinking substantial portions, like a control system or the code behind a semantic image processor, or are you thinking the implementation behind 'reverse a linked list?'

bluedino 4y ago

Now I'm just imagining if you trained co-pilot on all kinds of legal libraries, what lawsuits it could come up with.

AmIDev 4y ago
I assume that if they train the model only on GPLv2, then the generated code might be legal to be used under GPLv2 license. Similar could be done with some other open source licenses as well.

gwillen 4y ago

The desired class-action status of this suit feels like a stretch to me. Typically, in a class action, the defendant's alleged behavior unquestionably harms the members of the class, which is why it's okay to make them party to the suit without their consent. In this case, I suspect that only a minority of the members of the purported class actually believe they were harmed by the defendant's actions, and some class members are _paying customers_ of the defendant's product based on the conduct at issue. (Which surely creates some kind of estoppel issue, aside from the dubiousness of the class certification in the first place.) Could some enterprising attorney get a bunch of members of the purported class to sign on to a brief opposing class certification? (I don't know if that would be an amicus or what, but surely those people have some kind of standing here.) (Enterprising attorneys: my email address is in my profile.) I guess the problem here is with "enterprising" -- there's no money there, except to Microsoft, who I imagine might be barred by legal ethics from funding something like this...

nullc 4y ago
Ultimately losing a case like this might be better for super large players like Microsoft in the long run: they'll staple blanket permissions (and maybe even indemnities for third party code you submit) in the terms of service and go ahead training their own proprietary models. But players from startups to open source projects that lack market power will then face an impossible moat if they want to develop their own similar models.
nl 4y ago
> Could some enterprising attorney get a bunch of members of the purported class to sign on to a brief opposing class certification? Yes, I'd sign onto this (and I have open source code on GitHub that presumably (hopefully!) is being included).
drran 4y ago
CopyLoot model of business ruins Open Source model of business (AKA Open Core) and Open Source movement in general.

breck 4y ago

#LicensesAreForLosers

iLoveOncall 4y ago

Open-source licenses were a mistake. "Do whatever the fuck you want" should be the only open-source license.

heavyset_go 4y ago
Open source licenses are a response to the tragedy of the commons that follows the "do whatever you want" mantra. It turns out what many developers want is to share code in ways that keep the commons healthy and protect user freedoms.

hnaccy 4y ago

Why are programmers so suicidal? A giant corporation openly steals code from millions of devs and uses to try and automate us and programmers cheer it on. A billionaire with known poor labor practices buys Twitter and twitter devs make no attempt to organize as lab instead they just write toothless statements.

phendrenad2 4y ago
I don't see many people cheering it on here, in fact most of the news about copilot has been negative. Where do you see positivity?
- hnaccy 4y ago
  bulk of the top replies on post this week seem to be pro-copilot: https://news.ycombinator.com/item?id=33457488 https://news.ycombinator.com/item?id=33457488 https://news.ycombinator.com/item?id=33457933 https://news.ycombinator.com/item?id=33457933 https://news.ycombinator.com/item?id=33459343 https://news.ycombinator.com/item?id=33459343 https://news.ycombinator.com/item?id=33458943 https://news.ycombinator.com/item?id=33458943 https://news.ycombinator.com/item?id=33457737 https://news.ycombinator.com/item?id=33457737 https://news.ycombinator.com/item?id=33486605 https://news.ycombinator.com/item?id=33486605
  - phendrenad2 4y ago
    6 posts in a thread with 232 points? This is not good math.
bakugo 4y ago
> A giant corporation openly steals code from millions of devs and uses to try and automate us and programmers cheer it on. Actual programmers don't cheer it on. Only modern """programmers""" aka professional CTRL+V pressers, the kinds of people that usually "write" software in languages like javascript by importing a few hundred open source libraries and jamming them together until it vaguely does what they want. Copilot is good for these people because using others' code is all they do anyway, AI just helps them do it more efficiently, and without having to worry about all those pesky licenses.

amusingimpala75 4y ago

Well, let’s just leak the Windows source code into the training set. Then M$ will have no choice but to shut it down.

phendrenad2 4y ago

It's funny how companies can become their own worst enemy, which Microsoft has been since it acquired Github. Github itself recommends that you use the GPL license (see the Github-run https://choosealicense.com/ https://choosealicense.com/). This has likely led to many projects choosing GPL/BSD/Apache/MIT by default, simply because the author didn't understand the differences between them. I've found that often, once people take the time to educate themselves about the various licenses, they instead prefer a highly-permissive license like The Unlicense (https://unlicense.org/ https://unlicense.org/).

generic-husky 4y ago
Why did you lump MIT in with the un-premissive licenses?
- phendrenad2 4y ago
  Any license that requires attribution is not permissive enough to be free from copilot legal uncertainty.

tikbalang_koder 4y ago

Letting Copilot "fill-up" portions of the code "learned" from open source code IMHO is fair. Most devs worth their salt even without using Copilot would eventually write approximately the same code given the same requirement. What should be taken to court is if code for an entire feature or features taken verbatim from somebody else's project or work.

cookiengineer 4y ago

Microsoft's major arguments: - as long as the reuse of code is transformative enough, they consider it fair use - yet Microsoft's Copilot is not trained on Microsoft codebases, and not on Windows source code - yet Microsoft files DMCA takedown requests on Windows source code leaks As long as these are the case, Microsoft's argument of "Everything is considered fair use, except our stuff" is flawed in a lawsuit. That is not how copyright works. That is why Copilot has to be considered an attack on a specific group of software, and a specific group of people. And that is my own opinion. Either get rid of copyright alltogether (including Microsoft's arsenal of patents for it) or not. But don't try to play the hero of open source while you are stealing their stuff, specifically.

renonce 4y ago
> yet Microsoft's Copilot is not trained on Microsoft codebases, and not on Windows source code I don't think Copilot is trained on any private GitHub repository nor anything secret, not just Microsoft's private code
alkonaut 4y ago
GitHub source code is different from windows code though. This isn’t a moral argument but a dry legal one. Microsoft doesn’t control the rights for a lot of the windows source code because it isn’t their copyright to begin with. Meanwhile even private repos on GitHub are subject to uses like this through the terms of service iirc. So from a moral perspective I’d agree with you, but I don’t see how this could fly legally. I’m pretty sure Microsoft has had six armies of IP lawyers independently come to this conclusion.
- Tozen 4y ago
  Terms of service does not mean the forfeiting of user's copyright. There is an argument to what extent snippets of code is fair use versus when it becomes excessive and violates the copyright. You are right though, battling Microsoft in court will be no easy fight, and it will probably be a long one. However, I think the sharks are in the water and smell blood (money), as many lawyers see weaknesses in Microsoft's arguments and justifications (excuses).

skc 4y ago

Something tells me this might be welcome news to Microsoft. I would assume this was anticipated.

insanitybit 4y ago
There's no way that Microsoft didn't spend a lot of time derisking this with lawyers internally before release. This will be interesting to see play out but my bet is that it'll take 5+ years to get a result. I'm not a lawyer but I think MS will win quite easily.

psychphysic 4y ago

I hope Microsoft wins. The result of a lawsuit like this will add caché many big companies bullying smaller ones.

generic-husky 4y ago
I hope they lose so that the wishes and legal rights of the people who made GitHub great in the first place remain respected. GitHub is almost like a social network in the way it relies on "the community". Stealing people's code (who made it great) by regurgitating it through an ML code laundering machine, isn't very fair imho.
- psychphysic 4y ago
  I don't think anyone who wishes others not to learn from their code should upload it publically to GitHub.
  - generic-husky 4y ago
    ah yes, copy 'n pasting (or the ML equivalant) is truly learning. You can learn from code by just looking at it, working with it (i.e. transforming it into a truly derivative/creative work) there's little value to be had in having some automated program spit out chunks of code (ripped from their original context) that you don't fully understand or without the tool never could have conceived. Also looking at some publicly available code (to learn) still respects the license, co-pilot possibly doesn't.
    - psychphysic 4y ago
      You can think what you like. But Microsoft isn't being sued to stop copilot (which is trash really) it's to stop further development and an AI which will be to programmers what AlphaGo was to human players. The workforce in the industry is desperate for a way to slow AI down (every industry workforce) and they found a way to try.

yellowapple 4y ago

I'm still waiting for someone to contaminate Copilot with e.g. leaked Windows source code bits to "launder" them for free reuse.

causi 4y ago

Letting trillion-dollar companies freely grind up the collective creative output of planet earth into digital meat slurry to fuel automatic content-generators seems like a bad thing.

tannhaeuser 4y ago
And letting them do this by exposing your minute code edits in response to issues as a developer to make your job eventually redundant and have it taken over by ML seems like a worse thing even.
- wizzwizz4 4y ago
  > to make your job eventually redundant and have it taken over by ML This will last until the programmers run out. These systems will have a bad time writing in any language they haven't got extensive training data in.
  - CuriouslyC 4y ago
    Software is only going to become more ubiquitous, programmers won't run out, they'll just shift up to higher level abstractions and more diagnostic/administrative work. Think "AI doctor" and "AI manager" rather than code slinger.
- mirekrusin 4y ago
  AI taking jobs is not an argument. License violation is.
sharperguy 4y ago
Would be nice if they released the model, stable diffusion style. In fact, this kind of legal action could prevent disclosure of any AI models in the future.
PoignardAzur 4y ago
> Letting trillion-dollar companies freely grind up the collective creative output of planet earth into digital meat slurry to fuel automatic content-generators seems like a bad thing. The description is pretty loaded, though. "Grind up" evokes Microsoft taking away the creative output and destroying it forever to create an inferior product. When in fact, the original code is still here, you just also have a smart auto-completion tool built with it. Yes, there are concerns about license laundering and corporations taking advantage of open-source code without contributing to it, but these concerns are a lot more subtle and nuanced than "megacorporations are grinding up the collective output of the planet into slurry". My hot take: piracy everywhere, and screw intellectual property. It does more good for the world if anyone is allowed to build upon what anyone else has done before without having to ask for permission first, even if it makes monetization harder.

nurettin 4y ago

This must be how Oracle felt when they were trying to protect their java declarations from android's clutches. M$ is likely to win this case.

aslak 4y ago

This is pretty much just stomping on sand. Law and positive norms rarely can constrain a breakthrough tech like this.

dev_tty01 4y ago
>Law and positive norms rarely can constrain a breakthrough tech like this. True enough, but the point of this type of lawsuit is to define the legal framework within which the tech can operate. The law could end up saying that AI generated code from public, but license constrained code, must abide by the license of the original code. Or maybe there are rulings that help to better define "fair use" within this context. There is clearly significant legal ambiguity so this and other suits will help to clarify things. Of course those laws can't constrain someone from using the tech on their own computer how they want, but most public companies will create policies to keep their workforce within the lines of the defined legal framework.

Nginx487 4y ago

Where to sign a petition against luddites? They stole my `i` variable from `for` cycle.

mhfs 4y ago

What’s the risk exposure for startups whose engineers are using Copilot to write proprietary private code?

FrankyHollywood 4y ago

Can neural network tensors be seen as an encoding? If I copy source code and save it in an UTF-8 text file it is subjected to licensing. Now if the same information is represented in a neural network all of a sudden this 'trained data' is intelligence. It's a complex representation of the data, and some data may be a bit scrambled, but still in a way it's also an encoding of source data which should be treated as having an origin and an author.

ccbccccbbcccbb 4y ago

One doesn't simply buy GitHub for $7.5e+9 to foster the community and the ideals of open source. Moreover, ideals like that don't simply pop out of the blue and right into the collective psyche without comparable infusions. To drive it home in case lines between dots are not obvious: open source ideology, github and copilot are merely successive stages in the process of production of profit. The next step is obvious, get rid of human programmers and save on their wages. This is where ideals lead.

macmac 4y ago

Nobody seems to consider the fact that non-US law is also applicable to this issue. GitHUB ToS are subject to US/California law, but that does not mean that GitHub must not respect copyright in other jurisdictions where the service is provided. Many common open source licenses do not have a governing law clause (i.e. BSD and MIT). Since one of the primary defences for Copilot is fair use, and this concept does not exist in EU it would seem that Copilot is even more legally iffy in other jurisdictions.

UltraViolence 4y ago

I do agree with this case: Microsoft is illegally profiting from other people's source code. Just because the source code is open and sometimes free to use, does not mean Microsoft can sell a service based on it.

dev_tty01 4y ago

It seems that Microsoft is conflating "public" with "unlicensed." Sadly, it is a common practice. Humans are really good at rationalizing their way down the slippery slope. "I'll just use this clever way to loop over that structure. Well, actually, the whole function pretty much does what I need, I'll just drop that function in. Hmm, I could just change the API of this module a bit and that will work nicely..." It doesn't take long for learning to turn into copyright violation. I've seen this repeatedly while reviewing code of junior engineers. The engineers aren't malicious. They just sort of slide into it over time. As Copilot gets better and better, I just don't see how it doesn't end up violating license terms, at least occasionally. Even if much of its output is fair use, as long as some of it is violating licenses, MS has a problem.