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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

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.
      - belorn 4y ago
        Those question was part of the original discussions that the pirate movement made around 2005. Copyright was viewed as being about a single person copying a work. The person who uploaded shouldn't be allowed to be charged with the same crime, and the site that connected the uploaded and downloaded was just a meeting place. Lobby organizations for rights owners presented their own theories, one was that concept of "making available" a copyrighted work. They argued that the upload was equally if not more guilty of infringement than the downloaded. They also accused the website owners for facilitating and enabling. Then came the pirate bay case and a glaring issue struck the pirate movement. If technology can make creative solutions using code to bypass copyright, courts can in turn make creative solutions around law. The law that was used to charge the founders of the pirate bay was originally intended to combat bike bars when those places was used as headquarters for illegal gangs, a far step away from a website hosting files which enable two people on the internet to transfer files. So we can go around and blame the AI for doing the infringement, or even the researcher who invented the math that created AI, but as with any creative technical solution around copyright we have to ask what creative solutions the lawyers and judges will make.
- henryfjordan 4y ago
  Yeah I think it'll be an uphill battle for copilot, but I'm not 100% convinced yet. One factor can weigh so much more heavily than the others that they still have a chance with 3/4 against them. The original license of the code used to train on doesn't really matter to the fair use question, that only matters once the fair use defense fails and the court has to decide a remedy.

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.
    - belorn 4y ago
      Those question was part of the original discussions that the pirate movement made around 2005. Copyright was viewed as being about a single person copying a work. The person who uploaded shouldn't be allowed to be charged with the same crime, and the site that connected the uploaded and downloaded was just a meeting place. Lobby organizations for rights owners presented their own theories, one was that concept of "making available" a copyrighted work. They argued that the upload was equally if not more guilty of infringement than the downloaded. They also accused the website owners for facilitating and enabling. Then came the pirate bay case and a glaring issue struck the pirate movement. If technology can make creative solutions using code to bypass copyright, courts can in turn make creative solutions around law. The law that was used to charge the founders of the pirate bay was originally intended to combat bike bars when those places was used as headquarters for illegal gangs, a far step away from a website hosting files which enable two people on the internet to transfer files. So we can go around and blame the AI for doing the infringement, or even the researcher who invented the math that created AI, but as with any creative technical solution around copyright we have to ask what creative solutions the lawyers and judges will make.
henryfjordan 4y ago
Yeah I think it'll be an uphill battle for copilot, but I'm not 100% convinced yet. One factor can weigh so much more heavily than the others that they still have a chance with 3/4 against them. The original license of the code used to train on doesn't really matter to the fair use question, that only matters once the fair use defense fails and the court has to decide a remedy.