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I don’t understand the author’s position in this article. It spends a long time talking about details of the licenses, but I can’t see any way the suit will act
by chrismorgan 4y ago
I don’t understand the author’s position in this article. It spends a long time talking about details of the licenses, but I can’t see any way the suit will actually be about licenses, because if it’s about licenses then it seems patently obvious to me that GitHub will lose very quickly, because they have undoubtedly violated the terms of the licenses.
As I see it, the only leg GitHub can possibly stand on is the “fair use” exemption of copyright law—that the license is irrelevant, because they weren’t using it under that license.
So then you get to the last paragraph of the article, and the “fair use” claim is finally mentioned—as something the plaintiffs seem to be seeking to avoid bringing into it because that would make things messy. But… GitHub’s defence must be “fair use”, I can see no other response. Yes, the plaintiffs “chose to focus on something that is beyond factual dispute”, but how are GitHub ever going to do anything other than bring fair use into it? So I don’t see how they could expect it to “still provide the same damages” without bringing fair use into it. (And I can’t imagine GitHub will settle for anything other that total vindication here—even settlement would doom Copilot.)
Returning to the title: I cannot imagine any way that We May Learn Something About Creative Commons Licensing from this suit. About the interactions between copyright law and machine learning, maybe. But about CC-*, GPL, Apache-2.0, MIT, whatever? Nah, there’s nothing interesting about them in the suit, because if they were involved, it’d be cut and dried.
- mukesh610 4y agoIMO fair use is still not a strong argument for Microsoft. They commercialized the product and made money out of it. Fair use is only allowed if the work you're doing is purely for the greater good. I might be wrong though, IANAL.
- chrismorgan 4y agoYou are wrong, though public interest is certainly the basis of the purpose of fair use doctrine. But the simplest way of demonstrating that fair use still allows commercialisation is probably this example: search engines absolutely depend on fair use if they include any content from the linked pages. (And some countries have even tried to call the act of linking copyright infringement, though they’ve tended to back off at least a little, to requiring at least the title or other content for it to be infringement, and not just the URL.) https://en.wikipedia.org/wiki/Fair_use https://en.wikipedia.org/wiki/Fair_use, lots of good reading there.
- LtWorf 4y agoSearch engines link to the original website
- elondaits 4y agoIt might be a problem to treat it as copyright. Copyright applies to reproduction, distribution, public performance... if I go to a library or bookstore and I read books and look at their covers, copyright does not apply. Would an android that walks around learning things be subject to copyright? To what extent does it need a body and mobility to be more like a person and less as a scraper? It might seem stupid, but I worry that if copyright begins applying to "mining" then the next thing is that it applies to humans watching things. Of course, if an AI re-creates copyrighted content, copyright should apply. Just like it applies when I redraw and sell the Mona Lisa, but not when I store it in my memory. I would pass on the responsibility to users. I don't fear my use of Github Copilot because it's far from infringing any reasonable copyright... then again, I'm assuming the most likely way to infringe copyright with GPT is to use a prompt that almost explicitly requests it.
- chrismorgan 4y agoFunny thing is that recreations are not necessarily covered by copyright law. The clearest example of this is fonts, where (using imprecise terminology but I think it’ll be clear enough) the US only grants copyright protection to font files, but not the shapes—so tracing a commercial font is perfectly legal, even if you happened to end up with an identical result (though good luck proving to a court that that’s what you did).
- rockemsockem 4y agoI mean, today it's pretty easy to prove that if you're setting out to copy one of these fonts. Just film the whole process and upload it to YouTube.
- jefftk 4y agoThat's entirely correct, and is why the suit will most likely [1] fail. [1] 35% chance of success on https://manifold.markets/JeffKaufman/will-the-github-copilot-litigation https://manifold.markets/JeffKaufman/will-the-github-copilot...