15 ms·

Microsoft want court to toss lawsuit accusing them of abusing open-source code

126 points by ThaDood 4y ago

jsnell 4y ago
Is there anything out of the ordinary here? Doesn't basically every lawsuit have the defendant file a motion to dismiss, based on any halfway plausible reason?
- klyrs 4y ago
  To those interested in watching the particulars of this case, this is not a surprising development. But the play-by-play is interesting. Sports announcers manage to talk continuously during a game, and don't sit there silently and say "team A won with 20 points to team B's 5 points, what a game" at the very end. Personally, I don't care for the sportsguy blathering about a game nor the end results, and prefer to read about legal shenanigans.
- TheRealPomax 4y ago
  There is not. This is standard operating procedure. Getting a case thrown saves so much money that it is entirely worth having your legal team try to make it happen before the real work starts.
- nimbius 4y ago
  it was a successful strategy for VMWare when approached by a German developer about improper licensing for his open source code. VMWare managed to get the original case tossed on a technicality, as well as the appeal, which bought them enough time to drop the linux code entirely and avoid a discovery where they would most certainly be found in violation. https://www.zdnet.com/article/linux-developer-abandons-vmware-lawsuit/ https://www.zdnet.com/article/linux-developer-abandons-vmwar... https://www.zdnet.com/article/vmware-sued-for-failure-to-comply-with-linuxs-license/ https://www.zdnet.com/article/vmware-sued-for-failure-to-com... https://en.wikipedia.org/wiki/Vmlinux https://en.wikipedia.org/wiki/Vmlinux
- AlbertCory 4y ago
  Not only is the answer "no, the defendant always files a motion to dismiss," it's a good strategy because it forces the plaintiff to say something on the record.
- lostmsu 4y ago
  Perhaps a meta discussion is needed here regarding the potential ability to dismiss a lawsuit in a scenario like this where everyone understands the existence of a legal problem in the need of future guidance.
User23 4y ago
Breaking news: litigant wants to win lawsuit. They probably didn't rigorously track the licensing issue, but I'm pretty sure training a LLM is completely acceptable use of source under Freely licensed code. It would be somewhat amusing though if CoPilot is forced to spit out the license for every piece of code used to develop the derivative work, along with copyright notices and whatever else the licenses may require.
- candiddevmike 4y ago
  That's the point though, if you recreate the code you need to follow it's license, which typically involves some kind of attribution. Copilot should be forced to spit out a list of all licenses it referenced. That would actually be pretty valuable.
  - randombits0 4y ago
    Hold on, there is a difference between “recreate” and “copy”. Copyright only applies to creative expressions. If the code is trivially “recreated”, it’s not particularly creative. Copyrighted content can be used without the holder’s permission under “Fair Use”. Don’t assume all code can be copyrighted. Purely functional expressions are not copyrightable. Code is math. There’s a lot here to unpack.
    - deleted 4y ago
      [deleted]
    - User23 4y ago
      By the Curry-Howard correspondence no code should be able to be copyrighted since every program is a formal mathematical proof. However judges aren't usually mathematicians with a background in Computing Science so it's of little consequence.
      - henryfjordan 4y ago
        No algorithm should be copyright-able but your expression of that algorithm should. Programming language choice, variable names, comments, code-style, etc are all creative expressions which are relatively independent of the underlying math.
silverwasthere 4y ago
https://en.m.wikipedia.org/wiki/Licence_laundering https://en.m.wikipedia.org/wiki/Licence_laundering Seems pretty obvious to me but we'll see how it goes in the court.
- ThaDood 4y ago
  Huh, I always had this concept in my mind but never knew it actually had a phrase with some legal precedent.
- deleted 4y ago
  [deleted]
croes 4y ago
Is it still Fair Use if you make money with it?
- deleted 4y ago
  [deleted]
- nerdponx 4y ago
  In the USA, yes. For example, the unanimous ruling in Campbell v. Acuff-Rose Music, Inc. determined that parody is fair use, even if the parody is of a commercial nature: > Held: 2 Live Crew's commercial parody may be a fair use within the meaning of § 107. Pp. 574-594. The ruling states explicitly that commercial usage can be a determining factor in determining whether usage is fair or not, but that it does not in and of itself make the use "unfair". https://supreme.justia.com/cases/federal/us/510/569/ https://supreme.justia.com/cases/federal/us/510/569/
- klyrs 4y ago
  I don't think that question is particularly relevant to the case. A newspaper can publish, for profit, a book review which quotes excerpts. As far as I understand it, the case hinges on the distribution of major portions of copyrighted works and derivatives thereof, in violation of their licenses. Likewise, see Aaron Swartz, sci-hub, etc -- distribution of copyrighted works need not be for profit to be a violation.
- pdonis 4y ago
  Not necessarily. For example, you can make money by writing a review of a book that includes quotes from the book; that is considered fair use. But if you make money by publishing a book that consists solely of quotes from other books that others have copyrighted, on the grounds that this assembly of quotes from other books might be useful to future authors, that would not be fair use. To me, the latter scenario is much closer to what Github is doing with Copilot, which is one of the things the plaintiffs are alleging violates open source licenses.
- henryfjordan 4y ago
  Making money from the work is one of the factors for Fair Use but it is not an automatic-fail kind of situation. A judge/jury would need to hear the facts and consider all the factors. Here's a good link explaining the Fair Use test: https://copyright.columbia.edu/basics/fair-use.html https://copyright.columbia.edu/basics/fair-use.html
mapme 4y ago
Is there a OSS license that specifically precludes its use in LLMs or effectively does so?
- colejohnson66 4y ago
  The thing about fair use is that there’s nothing a license can do to prevent it. After all, that’s the whole point of fair use: to say that there’s valid reasons to use pieces of IP without regards to their licenses. So, if the courts find in Microsoft and OpenAI’s favor (which remains to be seen despite the many armchair lawyers here), your license would mean jack squat.
- Brian_K_White 4y ago
  They don't aim to. The problem is really just accreditation. If copilot copies a chunk of code for you, chances are the original author was perfectly happy for you to do that, and you put their name somewhere in your credits. Copilot copies the same code, but scrubs the original author. It may also be copying code that was not ok to copy but that's a seperate even worse issue.
atomicUpdate 4y ago
Why does the post title omit OpenAI, so it no longer matches the article’s title? > OpenAI, Microsoft want court to toss lawsuit accusing them of abusing open-source code
- Dylan16807 4y ago
  Character limit.
simonblack 4y ago
"It violates the licenses that open-source programmers chose and monetizes their code despite GitHub's pledge never to do so." Microsoft never changes. Always looking for a dishonest buck. Does 'Embrace, Extend, and Extinguish' ring a bell for younger players? Thought not.
- thunkshift1 4y ago
  Its not just microsoft, its the developer free loading culture.. once we start paying with our instead of free loading then things will change
MagicMoonlight 4y ago
If open source devs aren’t allowed to use the source code of windows to improve react, why the fuck should microsoft be able to copy and paste other people’s code for profit
- ipaddr 4y ago
  How would an open source windows improve react? The tooling?
  - danzk 4y ago
    I think they mean ReactOS.
- EMIRELADERO 4y ago
  Open source devs are allowed to learn from proprietary source code, including Windows' decompiled binaries, if they so choose. The fact that ReactOS and Wine have chosen to essentially self-sabotage by adopting a "clean-room" blackbox policy does not mean other projects must do so. Those policies are self-inflicted wunds, not mandated by any legal cases or standards.
phendrenad2 4y ago
I have a feeling that no matter what the outcome is here, it's not going to be satisfying. One extreme is AI is allowed to spit out copyrighted code verbatim as long as it technically goes through an AI first. Of course that defeats all open-source languages by adding a backdoor around them. The other extreme is that AI is not allowed to spit out a single line of copyrighted code, in which case we'll have endless lawsuits to figure out if CodeGPT used a GPL-licensed fast inverse square root or if it used the public-domain fast inverse square root. I think we'll land somewhere in the middle: If an AI regurgitates a "substantial" number of lines of code, then it's creators can be held liable (a.k.a. the "we'll know it when we see it" standard.)

126 points by ThaDood 4y ago

Is there anything out of the ordinary here? Doesn't basically every lawsuit have the defendant file a motion to dismiss, based on any halfway plausible reason?

klyrs 4y ago
To those interested in watching the particulars of this case, this is not a surprising development. But the play-by-play is interesting. Sports announcers manage to talk continuously during a game, and don't sit there silently and say "team A won with 20 points to team B's 5 points, what a game" at the very end. Personally, I don't care for the sportsguy blathering about a game nor the end results, and prefer to read about legal shenanigans.
TheRealPomax 4y ago
There is not. This is standard operating procedure. Getting a case thrown saves so much money that it is entirely worth having your legal team try to make it happen before the real work starts.
nimbius 4y ago
it was a successful strategy for VMWare when approached by a German developer about improper licensing for his open source code. VMWare managed to get the original case tossed on a technicality, as well as the appeal, which bought them enough time to drop the linux code entirely and avoid a discovery where they would most certainly be found in violation. https://www.zdnet.com/article/linux-developer-abandons-vmware-lawsuit/ https://www.zdnet.com/article/linux-developer-abandons-vmwar... https://www.zdnet.com/article/vmware-sued-for-failure-to-comply-with-linuxs-license/ https://www.zdnet.com/article/vmware-sued-for-failure-to-com... https://en.wikipedia.org/wiki/Vmlinux https://en.wikipedia.org/wiki/Vmlinux
AlbertCory 4y ago
Not only is the answer "no, the defendant always files a motion to dismiss," it's a good strategy because it forces the plaintiff to say something on the record.
lostmsu 4y ago
Perhaps a meta discussion is needed here regarding the potential ability to dismiss a lawsuit in a scenario like this where everyone understands the existence of a legal problem in the need of future guidance.

User23 4y ago

Breaking news: litigant wants to win lawsuit. They probably didn't rigorously track the licensing issue, but I'm pretty sure training a LLM is completely acceptable use of source under Freely licensed code. It would be somewhat amusing though if CoPilot is forced to spit out the license for every piece of code used to develop the derivative work, along with copyright notices and whatever else the licenses may require.

candiddevmike 4y ago
That's the point though, if you recreate the code you need to follow it's license, which typically involves some kind of attribution. Copilot should be forced to spit out a list of all licenses it referenced. That would actually be pretty valuable.
- randombits0 4y ago
  Hold on, there is a difference between “recreate” and “copy”. Copyright only applies to creative expressions. If the code is trivially “recreated”, it’s not particularly creative. Copyrighted content can be used without the holder’s permission under “Fair Use”. Don’t assume all code can be copyrighted. Purely functional expressions are not copyrightable. Code is math. There’s a lot here to unpack.
  - deleted 4y ago
    [deleted]
  - User23 4y ago
    By the Curry-Howard correspondence no code should be able to be copyrighted since every program is a formal mathematical proof. However judges aren't usually mathematicians with a background in Computing Science so it's of little consequence.
    - henryfjordan 4y ago
      No algorithm should be copyright-able but your expression of that algorithm should. Programming language choice, variable names, comments, code-style, etc are all creative expressions which are relatively independent of the underlying math.

silverwasthere 4y ago

https://en.m.wikipedia.org/wiki/Licence_laundering https://en.m.wikipedia.org/wiki/Licence_laundering Seems pretty obvious to me but we'll see how it goes in the court.

ThaDood 4y ago
Huh, I always had this concept in my mind but never knew it actually had a phrase with some legal precedent.
deleted 4y ago
[deleted]

croes 4y ago

Is it still Fair Use if you make money with it?

deleted 4y ago
[deleted]
nerdponx 4y ago
In the USA, yes. For example, the unanimous ruling in Campbell v. Acuff-Rose Music, Inc. determined that parody is fair use, even if the parody is of a commercial nature: > Held: 2 Live Crew's commercial parody may be a fair use within the meaning of § 107. Pp. 574-594. The ruling states explicitly that commercial usage can be a determining factor in determining whether usage is fair or not, but that it does not in and of itself make the use "unfair". https://supreme.justia.com/cases/federal/us/510/569/ https://supreme.justia.com/cases/federal/us/510/569/
klyrs 4y ago
I don't think that question is particularly relevant to the case. A newspaper can publish, for profit, a book review which quotes excerpts. As far as I understand it, the case hinges on the distribution of major portions of copyrighted works and derivatives thereof, in violation of their licenses. Likewise, see Aaron Swartz, sci-hub, etc -- distribution of copyrighted works need not be for profit to be a violation.
pdonis 4y ago
Not necessarily. For example, you can make money by writing a review of a book that includes quotes from the book; that is considered fair use. But if you make money by publishing a book that consists solely of quotes from other books that others have copyrighted, on the grounds that this assembly of quotes from other books might be useful to future authors, that would not be fair use. To me, the latter scenario is much closer to what Github is doing with Copilot, which is one of the things the plaintiffs are alleging violates open source licenses.
henryfjordan 4y ago
Making money from the work is one of the factors for Fair Use but it is not an automatic-fail kind of situation. A judge/jury would need to hear the facts and consider all the factors. Here's a good link explaining the Fair Use test: https://copyright.columbia.edu/basics/fair-use.html https://copyright.columbia.edu/basics/fair-use.html

mapme 4y ago

Is there a OSS license that specifically precludes its use in LLMs or effectively does so?

colejohnson66 4y ago
The thing about fair use is that there’s nothing a license can do to prevent it. After all, that’s the whole point of fair use: to say that there’s valid reasons to use pieces of IP without regards to their licenses. So, if the courts find in Microsoft and OpenAI’s favor (which remains to be seen despite the many armchair lawyers here), your license would mean jack squat.
Brian_K_White 4y ago
They don't aim to. The problem is really just accreditation. If copilot copies a chunk of code for you, chances are the original author was perfectly happy for you to do that, and you put their name somewhere in your credits. Copilot copies the same code, but scrubs the original author. It may also be copying code that was not ok to copy but that's a seperate even worse issue.

atomicUpdate 4y ago

Why does the post title omit OpenAI, so it no longer matches the article’s title? > OpenAI, Microsoft want court to toss lawsuit accusing them of abusing open-source code

Dylan16807 4y ago
Character limit.

simonblack 4y ago

"It violates the licenses that open-source programmers chose and monetizes their code despite GitHub's pledge never to do so." Microsoft never changes. Always looking for a dishonest buck. Does 'Embrace, Extend, and Extinguish' ring a bell for younger players? Thought not.

thunkshift1 4y ago
Its not just microsoft, its the developer free loading culture.. once we start paying with our instead of free loading then things will change

MagicMoonlight 4y ago

If open source devs aren’t allowed to use the source code of windows to improve react, why the fuck should microsoft be able to copy and paste other people’s code for profit

ipaddr 4y ago
How would an open source windows improve react? The tooling?
- danzk 4y ago
  I think they mean ReactOS.
EMIRELADERO 4y ago
Open source devs are allowed to learn from proprietary source code, including Windows' decompiled binaries, if they so choose. The fact that ReactOS and Wine have chosen to essentially self-sabotage by adopting a "clean-room" blackbox policy does not mean other projects must do so. Those policies are self-inflicted wunds, not mandated by any legal cases or standards.

phendrenad2 4y ago

I have a feeling that no matter what the outcome is here, it's not going to be satisfying. One extreme is AI is allowed to spit out copyrighted code verbatim as long as it technically goes through an AI first. Of course that defeats all open-source languages by adding a backdoor around them. The other extreme is that AI is not allowed to spit out a single line of copyrighted code, in which case we'll have endless lawsuits to figure out if CodeGPT used a GPL-licensed fast inverse square root or if it used the public-domain fast inverse square root. I think we'll land somewhere in the middle: If an AI regurgitates a "substantial" number of lines of code, then it's creators can be held liable (a.k.a. the "we'll know it when we see it" standard.)