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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 c

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

croes 4y ago
But it's pretty clear from the start that Copilot is neither criticism, comment, news reporting, teaching, scholarship, nor research which are covered by fair use.
- henryfjordan 4y ago
  The law on fair use says "such as" those categories you list but it is not read that you MUST be in one of those categories to enjoy fair-use. In fact, it goes on in the next sentence to say you need to consider the 4 factor test in every case. > The fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include ... https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107
  - croes 4y ago
    Sounds even worse for Copilot (1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2)the nature of the copyrighted work; (3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4)the effect of the use upon the potential market for or value of the copyrighted work. It's commercial, they use all of the code to built the model and the original code loses its value because you can get through Copilot. 3 of 4, depending on the original license it's 4 of 4 against fair use
    - Dylan16807 4y ago
      > they use all of the code to built the model That's not what "portion used" means. If you summarize a book then the portion used is <1%, not the entire book. > the original code loses its value because you can get through Copilot That's not even remotely true. You might get a fragment or two but you have to rebuild a program from scratch to replace it. And as far as "nature of the copyrighted work" it's a completely different beast. It's a programming tool instead of whatever code was fed into it. Only commerciality is a clear mark against it, and that factor is far from decisive by itself.
      - belorn 4y ago
        Writing a summarize of a book that incorporates 0.1% of the original book is likely fine under fair use. If you ask a AI to write 1000 unique summaries of the same book, each including a unique 0.1% copy of the book, what you have is a convoluted copying protocol. Asking the AI to write 1000, or 10000, or 10^infinitive number of fragments won't change the fundamentals of what is being done. In the end you have to ask the question what a judge and jury will say. In the BitTorrent protocol you split a file into tiny fragments of between 32 kB and 16 MB, and in the beginning people did make the claim that such small fragments could not possible be copyrightable. A 32 kB portion of a 10GB movie is so small that it has no significant relationship with the original work. Courts disagreed and people went to jail.
        shagie 4y ago
        If you ask the AI to do that, is the AI doing the infringement - or are you the human doing the infringement? Was the creator of the BitTorrent protocol liable? or the person transmitting the file? Is Xerox liable for the copy made? or the person using the copier?
        croes 4y ago
        Was the creator of Napster liable or only the person using it? If Xerox would allow to copy money they would be liable.
- orra 4y ago
  You're forgetting transformative use. Think about search engines.
  - VanTheBrand 4y ago
    Right but a search engine takes in web pages and outputs search. copilot takes in code and outputs code.
  - Brian_K_White 4y ago
    Should a search engine be allowed to get around the copyright on a novel by letting me search for and retrieve every sentence individually in small chunks? Also, there is a difference here. A fair use quote from another work is a reference. It's not the thing, it's referring to the thing. When copilot takes a chunk of code from another work to put into yours, it's using the thing directly, or rather, you are by using it. It lacks citation which a quote would have, and instead of being a quote to discuss the other work "Dr Foo once said <remarkable genius insight>" copilot is like you writing a novel and simply copying Dr Foo's remarkable genius insight. The size of the snippet doesn't matter, it's the usage and the lack of citation. Even a cheap-ass totally doable collective citation like getting all the contributors to agree to have their works included, and then having a big list of all contributors somewhwere, and then each user just needs to say "includes code from copilot collective" They don't even have that, which would be good enough.

croes 4y ago

But it's pretty clear from the start that Copilot is neither criticism, comment, news reporting, teaching, scholarship, nor research which are covered by fair use.

henryfjordan 4y ago
The law on fair use says "such as" those categories you list but it is not read that you MUST be in one of those categories to enjoy fair-use. In fact, it goes on in the next sentence to say you need to consider the 4 factor test in every case. > The fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include ... https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107
- croes 4y ago
  Sounds even worse for Copilot (1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2)the nature of the copyrighted work; (3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4)the effect of the use upon the potential market for or value of the copyrighted work. It's commercial, they use all of the code to built the model and the original code loses its value because you can get through Copilot. 3 of 4, depending on the original license it's 4 of 4 against fair use
  - Dylan16807 4y ago
    > they use all of the code to built the model That's not what "portion used" means. If you summarize a book then the portion used is <1%, not the entire book. > the original code loses its value because you can get through Copilot That's not even remotely true. You might get a fragment or two but you have to rebuild a program from scratch to replace it. And as far as "nature of the copyrighted work" it's a completely different beast. It's a programming tool instead of whatever code was fed into it. Only commerciality is a clear mark against it, and that factor is far from decisive by itself.
    - belorn 4y ago
      Writing a summarize of a book that incorporates 0.1% of the original book is likely fine under fair use. If you ask a AI to write 1000 unique summaries of the same book, each including a unique 0.1% copy of the book, what you have is a convoluted copying protocol. Asking the AI to write 1000, or 10000, or 10^infinitive number of fragments won't change the fundamentals of what is being done. In the end you have to ask the question what a judge and jury will say. In the BitTorrent protocol you split a file into tiny fragments of between 32 kB and 16 MB, and in the beginning people did make the claim that such small fragments could not possible be copyrightable. A 32 kB portion of a 10GB movie is so small that it has no significant relationship with the original work. Courts disagreed and people went to jail.
      - shagie 4y ago
        If you ask the AI to do that, is the AI doing the infringement - or are you the human doing the infringement? Was the creator of the BitTorrent protocol liable? or the person transmitting the file? Is Xerox liable for the copy made? or the person using the copier?
        croes 4y ago
        Was the creator of Napster liable or only the person using it? If Xerox would allow to copy money they would be liable.
orra 4y ago
You're forgetting transformative use. Think about search engines.
- VanTheBrand 4y ago
  Right but a search engine takes in web pages and outputs search. copilot takes in code and outputs code.
- Brian_K_White 4y ago
  Should a search engine be allowed to get around the copyright on a novel by letting me search for and retrieve every sentence individually in small chunks? Also, there is a difference here. A fair use quote from another work is a reference. It's not the thing, it's referring to the thing. When copilot takes a chunk of code from another work to put into yours, it's using the thing directly, or rather, you are by using it. It lacks citation which a quote would have, and instead of being a quote to discuss the other work "Dr Foo once said <remarkable genius insight>" copilot is like you writing a novel and simply copying Dr Foo's remarkable genius insight. The size of the snippet doesn't matter, it's the usage and the lack of citation. Even a cheap-ass totally doable collective citation like getting all the contributors to agree to have their works included, and then having a big list of all contributors somewhwere, and then each user just needs to say "includes code from copilot collective" They don't even have that, which would be good enough.