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> Indeed, last year GitHub was said to have tuned its programming assistant to generate slight variations of ingested training code to prevent its output from b

> Indeed, last year GitHub was said to have tuned its programming assistant to generate slight variations of ingested training code to prevent its output from being accused of being an exact copy of licensed software. If I, a human, were to: 1. Carefully read and memorize some copyrighted code. 2. Produce new code that is textually identical to that. But in the process of typing it up, I randomly mechanically tweak a few identifiers or something to produce code that has the exact same semantics but isn't character-wise identical. 3. Claim that as new original code without the original copyright. I assume that I would get my ass kicked legally speaking. That reads to me exactly like deliberate copyright infringement with willful obfuscation of my infringement. How is it any different when a machine does the same thing?

singleshot_ 2y ago
The guy who owns the machine is really rich, while you are more or less (all due respect of course) not worth suing. That’s why I think the opposite of what you claim is true: if you were to do this, absolutely nothing would happen. When they do it, they will get sued over and over until the law changes and they can’t be sued, or they enter some mutually-beneficial relationship with the parties who keep suing.
- beeboobaa3 2y ago
  > if you were to do this, absolutely nothing would happen Read up on the DMCA and the impact it has on e.g. nintendo emulators and the developers thereof
  - dmix 2y ago
    Those emulators are very popular though to the point of potentially impacting another business's bottom line. Where an individual putting it out a small block of code isn't exactly going to attract expensive lawyers. I'm skeptical Github Copilot reproducing a couple functions potentially used by some random Github project is going to be a threat to another party's livelihood. When AI gets good enough to make full duplicates of apps I'd be more concerned about the source. Thousands of smaller pieces drawn from a million sources and being combined in novel ways is less worrying though.
    - BadHumans 2y ago
      There is no impact to a company's bottom line when you are emulating a product they do not sell.
      - lcouturi 2y ago
        Yuzu, the emulator that was sued by Nintendo, was emulating the Nintendo Switch, which is a product Nintendo does sell.
        BadHumans 2y ago
        Yuzu is not the only emulator taken down by Nintendo and Nintendo is not the only company that has gone after emulators.
        lcouturi 2y ago
        In that case, could you clarify what instances of this you're referring to? The death of Citra wasn't really a deliberate action on the part of Nintendo, it was collateral damage. Citra was started by Yuzu developers and as part of the settlement they were not able to continue working on it. Citra's development had long been for the most part taken over by different developers, but the Yuzu people were still hosting the online infrastructure and had ownership of the GitHub repository, so they took all of it down. Some of the people who were maintaining Citra before the lawsuit opened up a new repository, but development has slowed down considerably because the taking down of the original repository has caused an unfortunate splintering of the community into many different forks. There is some speculation Nintendo was involved with the death of the Nintendo 64 emulator UltraHLE a long time back, but this was never confirmed. If indeed they did go after UltraHLE, then this would just like Yuzu be a case of them taking down an emulator for a console they were still profiting from, as UltraHLE was released in 1999. The most famous example of companies going after emulators is Sony, which went after Connectix Virtual Game Station and Bleem!. Both were PS1 emulators released in 1999, a period during which Sony was still very much profiting from PS1 sales. Sony lost both lawsuits and hasn't gone after emulators since. In 2017, Atlus tried to take down the Patreon page for RPCS3, a PS3 emulator. However, Atlus only went after the Patreon page, not the emulator itself, which they did because of their use of Persona 5 screenshots on said page. The screenshots were simply taken down and the Patreon page was otherwise left alone. Of note is that Atlus is a game developer, so they were never profiting from PS3 sales. However, they were certainly still profiting from Persona 5 sales, which had only released in 2016. These are the only examples I can remember. Did I miss anything?
  - singleshot_ 2y ago
    I enjoy how you removed the “I think” qualifier which suggested that it’s very possible that you’re right. I’m quite well read on the DMCA but admit you probably know far more about how Nintendo wields it. Still, I suggest that it’s a lot more likely that GitHub is going to get sued than you or GP. Finally, I believe using the legal system to bully independent software developers is, in legal terms, super lame. We are probably in the same side here.
    - bawolff 2y ago
      DMCA (at least the take down requests part) is not really suing someone and not really about making money. Its about getting certain works off the internet. You are probably more likely to be on the wrong end of a dmca take down request as a poor person since you dont have the resources to fight it, and its not about recovering damages just censorship.
      - singleshot_ 2y ago
        We are really losing the plot of what this thread is about here, but: DMCA takedown requests that are ignored or wheee the site does not comply with the process are subject to private civil action. Obviously, a takedown request is distinct from suing someone. And the way that the rights holder forces the site to remove the content is under threat of monetary penalties.
beeboobaa3 2y ago
Rules for thee but not for me (rich companies). Think of the shareholders!
Analemma_ 2y ago
> How is it any different when a machine does the same thing? Because intent matters in the law. If you intended to reproduce copyrighted code verbatim but tried to hide your activity with a few tweaks, that's a very different thing from using a tool which occasionally reproduces copyrighted code by accident but clearly was not designed for that purpose, and much more often than not outputs transformative works.
- archontes 2y ago
  Not in copyright. The work speaks for itself, and the function of code is not a copyrightable aspect.
  - bawolff 2y ago
    The intent of the work can matter when determining if de minimis applies as well as fair use.
    - archontes 2y ago
      Part of my point is that fair use doesn't apply. Training a model doesn't involve reproducing a copyrighted work, preparing a derivative work, distributing that work, or performing that work. Fair use isn't required because none of the exclusive rights afforded by copyright apply.
- olliej 2y ago
  Um, the entire intent of these "AI" systems is explicitly to reproduce copyrighted work with mechanical changes to make it not appear to be a verbatim copy. That is the whole purpose and mechanism by which they operate. Also the intent does not matter under law - not intending to break the law is not a defense if you break the law. Not intending to take someone's property doesn't mean it becomes your property. You might get less penalties and/or charges, due to intent (the obvious examples being murder vs manslaughter, etc). But here we have an entire ecosystem where the model is "scan copyrighted material" followed by "regurgitate that material with mechanical changes to fit the surrounding context and to appear to be 'new' content". Moreover given that this 'new' code is just a regurgitation of existing code with mutations to make it appear to fit the context and not directly identical to the existing code, then that 'new' code cannot be subject to copyright (you can't claim copyright to something you did not create, copyright does not protect output of mechanical or automatic transformations of other copyrighted content, and copyright does not protect the result of "natural processes", e.g 'I asked a statistical model to give me a statically plausible sequence of tokens and it did'). So in the best case scenario - the one where the copyright laundering as a service tool is not treated as just that, any code it produces is not protectable by copyright, and anyone can just copy "your work" without the license and (because you've said if you weren't intending to violate copyright it's ok) they can say they could not distinguish the non-copyright-protected work from the protected work and assumed that therefore none of it was subject to copyright. To be super sure though they weren't violating any of your copyrights, they then ran an "AI tool" to make the names better and better suit your style. I am so sick of these arguments where people spout nonsense about "AI" systems magically "understanding" or "knowing" anything - they are very expensive statistical models, the produce statistically plausible strings of text, by a combination of copying the text of others wholesale, and filling the remaining space with bullshit that for basic tasks is often correct enough, and for anything else is wrong - because again they're just producing plausible sequences of tokens and have no understanding of anything beyond that. To be very very very clear: if an AI system "understood" anything it was doing, it would not need to ingest essentially all the text that anyone has ever written, just to produce content that is at best only locally coherent, and that is frequently incorrect in more or less every domain to which it is applied. Take code completion (as in this case): Developers can write code without essentially reading all the code that has ever existed just so that they can write basic code, because developers understand code. Developers don't intermingle random unrelated and non-present variables or functions in their code as they write, because they understand what variables are and therefore they can't use non existent ones. "AI" on the other hand required more power than many countries to "learn" by reading as much as possible all code ever written, and then produce nonsense output for anything complex because they're still just generating a string of tokens that is plausible according to their statistical model - the result of these AIs is essentially binary: it has been in effect asked to produce code that does something that was in its training corpus and can be copied essentially verbatim, with a transformation path to make it fit, or it's not in the training corpus and you get random and generally incorrect code - hopefully wrong enough it fails to build, because they're also good at generating code that looks plausible but only fails at runtime because plausible sequence of tokens often overlaps with 'things a compiler will accept'.
dmix 2y ago
That's a significant over simplification of how it works though to the point of almost not being a useful analogy. If your analogy was you were a human who memorized every variation of a problem (and every other known problem) and there was a tiny perctange of a chance where you reproduced that exact varation of one you memorized, but then added an after the fact filter so you don't directly reproduce it... It's more like musicians who basically copy a bunch of music patterns or chord progressions before then notice their final output sounds too similar to another song (which happens often IRL) then changes it to be more original before releasing it to the public.
- ADeerAppeared 2y ago
  > If you analogy was you were a human who memorized every variation of a problem (and every other known problem) This is mere assumption. AI is supposed to work like that, but that's a goal, and not the result of current implementations. Research shows that they do memorize solutions as well, and quite regularly so. (This is an unavoidable flaw in current LLMs; They must be capable of memorizing input verbatim in order to learn specific facts.) > and there was a tiny perctange of a chance where you reproduced that exact varation of one you memorized This is copyright infringement. Actionable copyright infringement. The big music publishers go after this kind of accidental partial reproduction. > but then added an after the fact filter so you don't directly reproduce it... "Legally distinct" is a gimmick that only works where the copyright is on specific identifiable parts of a work. Changing a variable name does not make a code snippet "legally distinct", it's still copyright infringement.
  - dmix 2y ago
    Meh I still see that as a big oversimplification. Context matters. Even if the copyright courts often ignore that for wealthy entities. Someone reproducing a song using AI and publishing it as their own copyright infringement, a person specifically querying an AI engine, that sucked up billions of lines of information and generates what you ask it do with a sma probability it will reproduce a small subset of a larger commercial project and sends it to someone in a chatbox is not exactly the same IMO. This is Github Copilot after all. I use it daily and it autocompletes lines of code or generates functions you can find on stackoverflow. It's not letting giving you the source code to Twitter in full and letting you put it on the internet as a business under another name.
archontes 2y ago
You might not get your ass kicked. Copyright doesn't protect function, to the point where the court will assess the degree to which the style of the code can be separated from the function. In the even that they aren't separable, the code is not copyrightable. https://www.wardandsmith.com/articles/supreme-court-announces-broad-separability-test-in-applying-copyright-law-to-useful-articles https://www.wardandsmith.com/articles/supreme-court-announce... https://easlerlaw.com/software-computer-code-copyrighted#:~:text=Another%20landmark%20case https://easlerlaw.com/software-computer-code-copyrighted#:~:...
- ADeerAppeared 2y ago
  The simple version is that code is copyrightable as an expression. And the underlaying algorithm is patentable. The legal term you're looking for here is the "Abstraction-Filtration-Comparison" test; What remains if you subtract all the non-copyrightable elements from a given piece of code.
  - adrian_b 2y ago
    Algorithms have become patentable only very recently in the history of patents, without a rationale being ever provided for this change, and in some countries they have never become patentable. Even in the countries other than USA where algorithms have become patentable, that happened only due to USA blackmailing those countries into changing their laws "to protect (American) IP". It is true however that there exist some quite old patents which in fact have patented algorithms, but those were disguised as patents for some machines executing those algorithms, in order to satisfy the existing laws.
    - mort96 2y ago
      Doesn't really matter, the point is that they're patentable. They clearly shouldn't be IMO, but they are.
- tomxor 2y ago
  US copyright does protect for "substantial similarity" [0]. And at the other end of the spectrum, this has been abused in absurd ways to argue that substantially different code has infringed. In Zenimax vs Oculus they basically argued that a bunch of really abstract yet entirely generic parts of the code were shared, we are talking some nested for loops, certain combinations of if statements, and due to a lack of a qualitative understanding of code, syntax, common patterns, and what might actually qualify for substantively novel code in the courtroom, this was accepted as infringing. [1] Point is, the legal system is highly selective when it comes to corporate interests. [0] https://en.wikipedia.org/wiki/Substantial_similarity https://en.wikipedia.org/wiki/Substantial_similarity [1] https://arstechnica.com/gaming/2017/02/doom-co-creator-defends-his-code-against-zenimax-copying-accusations/ https://arstechnica.com/gaming/2017/02/doom-co-creator-defen...
ars 2y ago
> I assume that I would get my ass kicked legally speaking. Maybe, maybe not. It's not as simple as you made it out to be. If you write a book with lots of stuff and you got inspiration from other books, and even put in phrases wholesale, but modified to use your own character names instead, I'm not convinced you would lose. The court would look at the work as a whole, not single pieces of it. They would also check if you are just copying things verbatim, or if you memorize a pattern and emit the same pattern - for example look at lawsuits about copying music, where they'll claim this part of the music is the same as that part. It's really not as cut and dry as you make it out to be.
williamcotton 2y ago
Just to set the stage and not entirely specific to this complaint... It really depends on what is and isn't subject to copyright for software. Broadly, there is the distinction between expressive and functional code. [1] And then there are the specific tests that have been developed by the courts to separate the expressive and functional aspects of software. [2] [3] In practice it is very expensive for a plaintiff to do such analysis. For the most part the damages related to copyright are not worth the time and money. Plaintiffs tend to go for trade secret related damages as they are not restricted by the above tests. There are also arguments to be made of de minimis infringements that are not worth the time of the court. Most importantly the plaintiff fundamentally has the burden of proof and cannot just say that copying must have taken place. They need concrete evidence. [1] https://en.wikipedia.org/wiki/Idea–expression_distinction https://en.wikipedia.org/wiki/Idea–expression_distinction [2] https://en.wikipedia.org/wiki/Structure,_sequence_and_organization https://en.wikipedia.org/wiki/Structure,_sequence_and_organi... [3] https://en.wikipedia.org/wiki/Abstraction-Filtration-Comparison_test https://en.wikipedia.org/wiki/Abstraction-Filtration-Compari...
wvenable 2y ago
You probably do this all the time. Forget memorizing but undoubtedly you've read code, learned from it, and then likely reproduced similar code. Probably nothing terribly important, just a function here or there. Maybe even reproduced something you did for a previous employer.
- Aerroon 2y ago
  arr.sort((a, b) => a - b); comes to mind. I bet most js devs have written this verbatim.
JoshTriplett 2y ago
You have a much smaller lobbying budget than the AI industry, and you didn't flagrantly rush to copy billions of copyrighted works as quickly as possible and then push a narrative acting like that's the immutable status quo that must continue to be permitted lest the now-massive industry built atop copyright violation be destroyed. Violate one or two copyrights, get sued or DMCAed out of existence. Violate billions, on the other hand, and you magically become immune to the rules everyone else has to follow.
- nadermx 2y ago
  What about the copyrights purpose of furthering the arts and sciences?
  - JoshTriplett 2y ago
    Copyright has utterly failed to serve that purpose for a long time, and has been actively counterproductive. But if you want to argue that copyright is counterproductive, I completely agree. That's an argument for reducing or eliminating it across the board, fairly, for everyone; it's not an argument for giving a free pass to AI training while still enforcing it on everyone else.
    - idle_zealot 2y ago
      Could these "free passes" for AI training serve as a legal wedge to increase the scope of fair use in other cases? Pro-business selective enforcement sucks, but so long as model weights are being released and the public is benefiting then stubbornly insisting that overzealous copyright laws be enforced seems self-defeating.
    - adra 2y ago
      Without copyright, entire industries would've been dead a long time ago, including many movies, games, books, tv, music, etc. Just because their lobbies tend to push the boundary of copyright into the absurd doesn't mean these industries aren't worth saving. There should be actually respectful lawmakers who seek for a balance of public and commercial interests.
hyperpape 2y ago
From the article: > The most recently dismissed claims were fairly important, with one pertaining to infringement under the Digital Millennium Copyright Act (DMCA), section 1202(b), which basically says you shouldn't remove without permission crucial "copyright management" information, such as in this context who wrote the code and the terms of use, as licenses tend to dictate. > It was argued in the class-action suit that Copilot was stripping that info out when offering code snippets from people's projects, which in their view would break 1202(b). > The judge disagreed, however, on the grounds that the code suggested by Copilot was not identical enough to the developers' own copyright-protected work, and thus section 1202(b) did not apply. Indeed, last year GitHub was said to have tuned its programming assistant to generate slight variations of ingested training code to prevent its output from being accused of being an exact copy of licensed software. So (not a lawyer!) this reads like the point about GitHub tuning their model is not a generic defense against any and all claims of copyright infringement, but a response to a specific claim that this violates a provision of the DMCA. I don't know whether this is a reasonable defense or not, but your intuitions or mine about whether there is a general copyright violation or what's fair are not necessarily relevant to how the judge construes that very specific bit of legal code.
- xinayder 2y ago
  What I got from this is, you can copy someone's copyrighted work provided you tweak a few things here and there. I wonder how this holds up in court if you don't have billions at your disposal.
  - sleepybrett 2y ago
    Weird Al should be in the clear then, he changes probably 85% of all the song lyrics in his covers.
    - sensanaty 2y ago
      Weird Al explicitly seeks out permission from copyright holders and won't do a cover if he doesn't get their go-ahead [1]. Pretty much the exact opposite of all these AI companies :p https://www.weirdal.com/archives/faq/ https://www.weirdal.com/archives/faq/
skybrian 2y ago
The machine alone doesn't do anything. The user and machine together constitute a larger system, and with autocomplete, the user is charge. What's the user's intent? I suspect that a lot of copyright violations are enabled by cut-and-paste and screenshot-taking functionality, and maybe we need to be careful with autocomplete, too? It's the user's responsibility to avoid this. We should be careful using our tools. Do users take enough care in this case? Is it possible to take enough care while still using CoPilot? I've switched from CoPilot to Cody, but I use them the same way, to write my code. There's no particular reason to use CoPilot's output verbatim and lots of good reasons not to. By the time I've adapted it to my code base and code style and refactored it to hell and back, it's an expression of how I want to solve a problem, and I'm pretty confident claiming ownership. Is that confidence misplaced? Are other people more careless?
- BeefWellington 2y ago
  > The machine alone doesn't do anything. By the same token, the machine alone can't download pirated movies. Yet the sites hosting those movies are targeted as the infringers. There's a point at which foisting this responsibility on the users is simply socializing losses. Ultimately Copilot is the one serving the code up - regardless of the user's request. If the user then goes on to republish that work as their own it becomes two mistakes. It'll be interesting to see if any lawyers are capable of articulating that well enough in any of these lawsuits. > Is that confidence misplaced? Are other people more careless? I would say yes, for two reasons. One is that using code of unknown provenance means you're opening yourself to unknown legal risks. The second is if you're rewriting it fully (so as not to run afoul of easily spotted copyright) that's not actually "clean room" and you're still open to problems. I'd also wonder what the point of using a code writing LLM is anyways if you're doing all the authorship yourself. It seems like doing double the work.
  - skybrian 2y ago
    It is a lot of work to do a lot of rewrites, but it’s noncommercial and I’m not in a hurry. And autocomplete is still pretty useful.
xorcist 2y ago
Why stop there? Extrapolate that thought, keep generating more variants of the code, claim copyright, and seek rent from other people doing the same thing. To extrapolate full circle, there would be a business opportunity to generate as many variants as possible for the original author, to prevent all this from happening. As long as we're not required to register copyright there's no reason to think the above will play out. International copyright agreements are not limited to verbatim copies only.
- BeefWellington 2y ago
  > Why stop there? Extrapolate that thought, keep generating more variants of the code, claim copyright, and seek rent from other people doing the same thing. To extrapolate full circle, there would be a business opportunity to generate as many variants as possible for the original author, to prevent all this from happening. This has already been done[1] in music, though in their case they released them to the public domain. Admittedly I think that was more of a protest than anything. [1]: https://www.vice.com/en/article/wxepzw/musicians-algorithmically-generate-every-possible-melody-release-them-to-public-domain https://www.vice.com/en/article/wxepzw/musicians-algorithmic...
eftychis 2y ago
Adding to the sibling comments: First: every human is per se doing that already. We have – to handwave – a "reasonable person" bar to separate violations versus results of learning and new innovation. Second: You can be a holder of copyright and your creations result in copyrightable artifacts. Anything generated by the program has been held as uncopyrightable.
_heimdall 2y ago
The actual answer here, regardless of a court ruling, is that you'd go broke if anyone big enough tried to go after you for it. Legal protections for source code are still pretty fuzzy, understandably so given how comparatively new the industry is. That doesn't stop lawyers from racking up huge fees though, it actually helps because they need so much more prep time to debate a case that is so unclear and/or lacking precedent.
griftrejection 2y ago
[dead]
ProAm 2y ago
> How is it any different when a machine does the same thing? Literally the bank account behind the action...
jollofricepeas 2y ago
No clue. But what if the generative AI were used to create music instead of code would the court have ruled differently? CONSIDER: In 2015, a federal judge order Thicke & Pharrell to pay 50% of proceeds to the Marvin Gaye estate for being “too similar” to the song, “Gots to Give It Up”. Comparison and commentary: https://youtu.be/7_UiQueteN4?si=SkClbyBMOcucigRm https://youtu.be/7_UiQueteN4?si=SkClbyBMOcucigRm Comparison of both songs: https://youtu.be/ziz9HW2ZmmY?si=3_VZzfoLT-NrozoK https://youtu.be/ziz9HW2ZmmY?si=3_VZzfoLT-NrozoK
roenxi 2y ago
If you tell a programmer to implement a function foo(a, b) then there are actually only a tiny number of ways to do that, semantically speaking, for any given foo. The number of options narrows quickly as the programmer implementing it gets more competent. Choosing function signatures is an art form but after that "copying" is hard to judge.
- sva_ 2y ago
  > a function foo(a, b) then there are actually only a tiny number of ways to do that I'd argue there are infinite ways to implement any function, just almost all of them are extremely bad.
woah 2y ago
You would not get your ass kicked legally speaking. Copyright is not that broad. It's not a patent.
skissane 2y ago
> I assume that I would get my ass kicked legally speaking. That reads to me exactly like deliberate copyright infringement with willful obfuscation of my infringement. It looks like wilful obfuscation because the obfuscation is so simplistic. But as the obfuscation gets increasingly sophisticated, it becomes ever harder to distinguish wilful obfuscation from genuine originality.
- chii 2y ago
  > But sufficiently complex obfuscation of infringement is very hard to distinguish from genuine originality. for the purposes of copyright, originality is not required, just different expressions. It's ideas (aka, patent) that require originality. The 'sufficiently complex obfuscation' is exactly what people's brains go through when they learn, and re-produced what they learnt in a different context. I argue that AI-training can be considered to be doing the same.
  - skissane 2y ago
    Some different scenarios: (1) You leave your employer, don’t take any code with you, start your own company, reimplement your ex-employer’s product from scratch, but you do it in a very different way (different language, different design choices, different tech stack, different architecture) (2) You leave your employer, take their code with you, start your own company, make some superficial changes to their code to obscure your theft but the copying is obvious to anyone who scratches the surface (3) You leave your employer, take their code with you, start your own company, start very heavily manually refactoring their code, within a few months it looks completely different, very difficult to distinguish from (1) unless you have evidence of the process of its creation (4) You leave your employer, take their code with you, start your own company, download some “infringement obfuscation AI agent” from the Internet and give it your employer’s codebase, within a few hours it has transformed it into something difficult to distinguish from (1) if you didn’t know the history (1) is unlikely to be held to be infringing. (2) is rather obviously going to be held to be infringing. But what about (3)? IANAL, but I suspect if you admitted that is how you did it, a judge would be unlikely to be very sympathetic. Your best hope would be to insist you actually did (1) instead. And then the outcome of the case might come down to whether the judge/jury believes your claim you actually did (1), or the plaintiff/prosecution’s claim you did (3). And (4) is basically just (3) with AI to make it a lot faster and quicker. Such an agent likely doesn’t exist yet, but it could happen. Timing is obviously a factor. If you leave your employer and launch a clone of their app the next week, everyone is going to think either you stole their code, or you were moonlighting on writing it (in which case they may legally own it anyway). If it takes you 12 months, it becomes more believable you wrote it from scratch. But if someone uses AI to launder code theft, maybe they can build the “clone” in a few days or weeks, and then spend a few months relaxing and recharging before going public with it
bawolff 2y ago
> How is it any different when a machine does the same thing? I think the argument is that the machine is not doing that, or at least there isn't evidence that it is doing that. Specificly no evidence that github is doing both 1 and 2 at the same time. There might be cases where it makes trivial changes to code (point 2) but for code that does not meet the threshold of originality. Similarly there might be cases with copyrighted code where the idea of it is taken, but it is expressed in such a different way that it is not a straightforward derrivitave of the expression (keeping in mind you cannot copyright an idea, only its expression. Using a similar approach or algorithm is not copyright infringement) And finally, someone has to demonstrate it is actually happening and not just in theory could happen. Generally courts dont punish people for future crimes they haven't comitted yet (sometimes you can get in trouble for being reckless even if nothing bad happens, but i dont think that applies to copyrighg infringement)
constantcrying 2y ago
>I assume that I would get my ass kicked legally speaking. Why? This is no different than copy pasting and modifying a bit of code from some documentation/other project/tutorial/SO. Surely if that were a basis for copyright infringement most semi-large software projects would be infringing on copyright. I don't think anyone here should be willing to open the can if worms that is copy pasting small snippets of code and modifying them. The judge seems to argue that the non-identical copies are at issue here and that they only happen under contrived circumstances. My moral opinion is that this is irrelevant and that even the defendant is the wrong person. Even verbatim copies of code snippets shouldn't be copyright infringement and suing the company providing the AI is wrong to begin with, as the AI or its providercan not possibly be the one to infringe.
ExoticPearTree 2y ago
I don't think it works that way. During the course of your professional career as a developer you change jobs. And let's say that at every job you create APIs. Besides the particular functions those API provide, the API code itself (how you interact with clients, databases etc.) will be pretty much the same as whatever you did at previous jobs. Does this constitute copyright experience or is just experience? My analogy is that if Copilot doesn't provide 100% code from another repository it is OK to be used by other people trained with code available on GitHub.
sim7c00 2y ago
it depends on how much tax you are paying really. if you pay billions in taxes annually, they might see past it. if the company you copied from pays billions in taxes anually. you will go to jail. if this isn't painfuly obvious by now...
- account42 2y ago
  Doesn't seem that taxes are the deciding factor seing as how little the government cares about tax dodging done by corporations and the rich.
Kuinox 2y ago
You are taking the plaintiff statement as is, which is wrong. You can blame the media that didn't made it clear that it was a statement from the plaintiff.
isodev 2y ago
It would. And this is where some legislation "in the spirit of" would have helped. So Microsoft's huge legal arm can't just wiggle their way out on technicalities. Clearly, the law is not prepared to face the challenge of copyright violations on the scale created by the LLMs. I also think it's not just copyright. It's simply not right to create a product on top of the collective work of all open source developers monetize them on the absurt scale Microsoft operates and never ever credit the original creators.
bmitc 2y ago
Regardless of the details here, it's become quite clear that the judicial system is for corporations. It doesn't matter whether they win, lose, or settle, as they win regardless, since the monetary benefits of what got them in court in the first place far outweigh any punishment or settlement cost.
zephyr9 2y ago
It seems the total disregard that the tech community showed toward copyright when it was artists losing out has come back to bite. Face-eating leopards, etc.
bena 2y ago
I agree. I don’t see the difference. That’s the entire reason “clean room reverse engineering” is done. Using nothing but the binary itself, work out how things are done. Making sure that the reverse engineers don’t even have access to any material that could look like it came from the other organization in question. And that it is provable.
alickz 2y ago
who gets to copyright claim the various array sorting algorithms then?
kjellsbells 2y ago
Days like this, I wonder what Borges would have made of such questions. "Pierre Menard, author of redis" I know from experience that parents are aggressively pushing their children into STEM to maximize their chances of being economically secure, but, I really feel that we need a generation of philosophers and humanists to sift through the issues that our technology is raising. What does it mean to know something? What does authorship mean? Is a translated work the same as the original? Borges, Steiner, and the rest have as much to contribute as Ellison, Zuckerberg, and Altman.
p0w3n3d 2y ago
How is it anything different? You have no money. And Microsoft has. The problem on this is that it will give a huge leverage to rich companies over poor, because those rich can steal (memorize with AI) anything including music

singleshot_ 2y ago

The guy who owns the machine is really rich, while you are more or less (all due respect of course) not worth suing. That’s why I think the opposite of what you claim is true: if you were to do this, absolutely nothing would happen. When they do it, they will get sued over and over until the law changes and they can’t be sued, or they enter some mutually-beneficial relationship with the parties who keep suing.

beeboobaa3 2y ago
> if you were to do this, absolutely nothing would happen Read up on the DMCA and the impact it has on e.g. nintendo emulators and the developers thereof
- dmix 2y ago
  Those emulators are very popular though to the point of potentially impacting another business's bottom line. Where an individual putting it out a small block of code isn't exactly going to attract expensive lawyers. I'm skeptical Github Copilot reproducing a couple functions potentially used by some random Github project is going to be a threat to another party's livelihood. When AI gets good enough to make full duplicates of apps I'd be more concerned about the source. Thousands of smaller pieces drawn from a million sources and being combined in novel ways is less worrying though.
  - BadHumans 2y ago
    There is no impact to a company's bottom line when you are emulating a product they do not sell.
    - lcouturi 2y ago
      Yuzu, the emulator that was sued by Nintendo, was emulating the Nintendo Switch, which is a product Nintendo does sell.
      - BadHumans 2y ago
        Yuzu is not the only emulator taken down by Nintendo and Nintendo is not the only company that has gone after emulators.
        lcouturi 2y ago
        In that case, could you clarify what instances of this you're referring to? The death of Citra wasn't really a deliberate action on the part of Nintendo, it was collateral damage. Citra was started by Yuzu developers and as part of the settlement they were not able to continue working on it. Citra's development had long been for the most part taken over by different developers, but the Yuzu people were still hosting the online infrastructure and had ownership of the GitHub repository, so they took all of it down. Some of the people who were maintaining Citra before the lawsuit opened up a new repository, but development has slowed down considerably because the taking down of the original repository has caused an unfortunate splintering of the community into many different forks. There is some speculation Nintendo was involved with the death of the Nintendo 64 emulator UltraHLE a long time back, but this was never confirmed. If indeed they did go after UltraHLE, then this would just like Yuzu be a case of them taking down an emulator for a console they were still profiting from, as UltraHLE was released in 1999. The most famous example of companies going after emulators is Sony, which went after Connectix Virtual Game Station and Bleem!. Both were PS1 emulators released in 1999, a period during which Sony was still very much profiting from PS1 sales. Sony lost both lawsuits and hasn't gone after emulators since. In 2017, Atlus tried to take down the Patreon page for RPCS3, a PS3 emulator. However, Atlus only went after the Patreon page, not the emulator itself, which they did because of their use of Persona 5 screenshots on said page. The screenshots were simply taken down and the Patreon page was otherwise left alone. Of note is that Atlus is a game developer, so they were never profiting from PS3 sales. However, they were certainly still profiting from Persona 5 sales, which had only released in 2016. These are the only examples I can remember. Did I miss anything?
- singleshot_ 2y ago
  I enjoy how you removed the “I think” qualifier which suggested that it’s very possible that you’re right. I’m quite well read on the DMCA but admit you probably know far more about how Nintendo wields it. Still, I suggest that it’s a lot more likely that GitHub is going to get sued than you or GP. Finally, I believe using the legal system to bully independent software developers is, in legal terms, super lame. We are probably in the same side here.
  - bawolff 2y ago
    DMCA (at least the take down requests part) is not really suing someone and not really about making money. Its about getting certain works off the internet. You are probably more likely to be on the wrong end of a dmca take down request as a poor person since you dont have the resources to fight it, and its not about recovering damages just censorship.
    - singleshot_ 2y ago
      We are really losing the plot of what this thread is about here, but: DMCA takedown requests that are ignored or wheee the site does not comply with the process are subject to private civil action. Obviously, a takedown request is distinct from suing someone. And the way that the rights holder forces the site to remove the content is under threat of monetary penalties.

beeboobaa3 2y ago

Rules for thee but not for me (rich companies). Think of the shareholders!

Analemma_ 2y ago

> How is it any different when a machine does the same thing? Because intent matters in the law. If you intended to reproduce copyrighted code verbatim but tried to hide your activity with a few tweaks, that's a very different thing from using a tool which occasionally reproduces copyrighted code by accident but clearly was not designed for that purpose, and much more often than not outputs transformative works.

archontes 2y ago
Not in copyright. The work speaks for itself, and the function of code is not a copyrightable aspect.
- bawolff 2y ago
  The intent of the work can matter when determining if de minimis applies as well as fair use.
  - archontes 2y ago
    Part of my point is that fair use doesn't apply. Training a model doesn't involve reproducing a copyrighted work, preparing a derivative work, distributing that work, or performing that work. Fair use isn't required because none of the exclusive rights afforded by copyright apply.
olliej 2y ago
Um, the entire intent of these "AI" systems is explicitly to reproduce copyrighted work with mechanical changes to make it not appear to be a verbatim copy. That is the whole purpose and mechanism by which they operate. Also the intent does not matter under law - not intending to break the law is not a defense if you break the law. Not intending to take someone's property doesn't mean it becomes your property. You might get less penalties and/or charges, due to intent (the obvious examples being murder vs manslaughter, etc). But here we have an entire ecosystem where the model is "scan copyrighted material" followed by "regurgitate that material with mechanical changes to fit the surrounding context and to appear to be 'new' content". Moreover given that this 'new' code is just a regurgitation of existing code with mutations to make it appear to fit the context and not directly identical to the existing code, then that 'new' code cannot be subject to copyright (you can't claim copyright to something you did not create, copyright does not protect output of mechanical or automatic transformations of other copyrighted content, and copyright does not protect the result of "natural processes", e.g 'I asked a statistical model to give me a statically plausible sequence of tokens and it did'). So in the best case scenario - the one where the copyright laundering as a service tool is not treated as just that, any code it produces is not protectable by copyright, and anyone can just copy "your work" without the license and (because you've said if you weren't intending to violate copyright it's ok) they can say they could not distinguish the non-copyright-protected work from the protected work and assumed that therefore none of it was subject to copyright. To be super sure though they weren't violating any of your copyrights, they then ran an "AI tool" to make the names better and better suit your style. I am so sick of these arguments where people spout nonsense about "AI" systems magically "understanding" or "knowing" anything - they are very expensive statistical models, the produce statistically plausible strings of text, by a combination of copying the text of others wholesale, and filling the remaining space with bullshit that for basic tasks is often correct enough, and for anything else is wrong - because again they're just producing plausible sequences of tokens and have no understanding of anything beyond that. To be very very very clear: if an AI system "understood" anything it was doing, it would not need to ingest essentially all the text that anyone has ever written, just to produce content that is at best only locally coherent, and that is frequently incorrect in more or less every domain to which it is applied. Take code completion (as in this case): Developers can write code without essentially reading all the code that has ever existed just so that they can write basic code, because developers understand code. Developers don't intermingle random unrelated and non-present variables or functions in their code as they write, because they understand what variables are and therefore they can't use non existent ones. "AI" on the other hand required more power than many countries to "learn" by reading as much as possible all code ever written, and then produce nonsense output for anything complex because they're still just generating a string of tokens that is plausible according to their statistical model - the result of these AIs is essentially binary: it has been in effect asked to produce code that does something that was in its training corpus and can be copied essentially verbatim, with a transformation path to make it fit, or it's not in the training corpus and you get random and generally incorrect code - hopefully wrong enough it fails to build, because they're also good at generating code that looks plausible but only fails at runtime because plausible sequence of tokens often overlaps with 'things a compiler will accept'.

dmix 2y ago

That's a significant over simplification of how it works though to the point of almost not being a useful analogy. If your analogy was you were a human who memorized every variation of a problem (and every other known problem) and there was a tiny perctange of a chance where you reproduced that exact varation of one you memorized, but then added an after the fact filter so you don't directly reproduce it... It's more like musicians who basically copy a bunch of music patterns or chord progressions before then notice their final output sounds too similar to another song (which happens often IRL) then changes it to be more original before releasing it to the public.

ADeerAppeared 2y ago
> If you analogy was you were a human who memorized every variation of a problem (and every other known problem) This is mere assumption. AI is supposed to work like that, but that's a goal, and not the result of current implementations. Research shows that they do memorize solutions as well, and quite regularly so. (This is an unavoidable flaw in current LLMs; They must be capable of memorizing input verbatim in order to learn specific facts.) > and there was a tiny perctange of a chance where you reproduced that exact varation of one you memorized This is copyright infringement. Actionable copyright infringement. The big music publishers go after this kind of accidental partial reproduction. > but then added an after the fact filter so you don't directly reproduce it... "Legally distinct" is a gimmick that only works where the copyright is on specific identifiable parts of a work. Changing a variable name does not make a code snippet "legally distinct", it's still copyright infringement.
- dmix 2y ago
  Meh I still see that as a big oversimplification. Context matters. Even if the copyright courts often ignore that for wealthy entities. Someone reproducing a song using AI and publishing it as their own copyright infringement, a person specifically querying an AI engine, that sucked up billions of lines of information and generates what you ask it do with a sma probability it will reproduce a small subset of a larger commercial project and sends it to someone in a chatbox is not exactly the same IMO. This is Github Copilot after all. I use it daily and it autocompletes lines of code or generates functions you can find on stackoverflow. It's not letting giving you the source code to Twitter in full and letting you put it on the internet as a business under another name.

archontes 2y ago

You might not get your ass kicked. Copyright doesn't protect function, to the point where the court will assess the degree to which the style of the code can be separated from the function. In the even that they aren't separable, the code is not copyrightable. https://www.wardandsmith.com/articles/supreme-court-announces-broad-separability-test-in-applying-copyright-law-to-useful-articles https://www.wardandsmith.com/articles/supreme-court-announce... https://easlerlaw.com/software-computer-code-copyrighted#:~:text=Another%20landmark%20case https://easlerlaw.com/software-computer-code-copyrighted#:~:...

ADeerAppeared 2y ago
The simple version is that code is copyrightable as an expression. And the underlaying algorithm is patentable. The legal term you're looking for here is the "Abstraction-Filtration-Comparison" test; What remains if you subtract all the non-copyrightable elements from a given piece of code.
- adrian_b 2y ago
  Algorithms have become patentable only very recently in the history of patents, without a rationale being ever provided for this change, and in some countries they have never become patentable. Even in the countries other than USA where algorithms have become patentable, that happened only due to USA blackmailing those countries into changing their laws "to protect (American) IP". It is true however that there exist some quite old patents which in fact have patented algorithms, but those were disguised as patents for some machines executing those algorithms, in order to satisfy the existing laws.
  - mort96 2y ago
    Doesn't really matter, the point is that they're patentable. They clearly shouldn't be IMO, but they are.
tomxor 2y ago
US copyright does protect for "substantial similarity" [0]. And at the other end of the spectrum, this has been abused in absurd ways to argue that substantially different code has infringed. In Zenimax vs Oculus they basically argued that a bunch of really abstract yet entirely generic parts of the code were shared, we are talking some nested for loops, certain combinations of if statements, and due to a lack of a qualitative understanding of code, syntax, common patterns, and what might actually qualify for substantively novel code in the courtroom, this was accepted as infringing. [1] Point is, the legal system is highly selective when it comes to corporate interests. [0] https://en.wikipedia.org/wiki/Substantial_similarity https://en.wikipedia.org/wiki/Substantial_similarity [1] https://arstechnica.com/gaming/2017/02/doom-co-creator-defends-his-code-against-zenimax-copying-accusations/ https://arstechnica.com/gaming/2017/02/doom-co-creator-defen...

ars 2y ago

> I assume that I would get my ass kicked legally speaking. Maybe, maybe not. It's not as simple as you made it out to be. If you write a book with lots of stuff and you got inspiration from other books, and even put in phrases wholesale, but modified to use your own character names instead, I'm not convinced you would lose. The court would look at the work as a whole, not single pieces of it. They would also check if you are just copying things verbatim, or if you memorize a pattern and emit the same pattern - for example look at lawsuits about copying music, where they'll claim this part of the music is the same as that part. It's really not as cut and dry as you make it out to be.

williamcotton 2y ago

Just to set the stage and not entirely specific to this complaint... It really depends on what is and isn't subject to copyright for software. Broadly, there is the distinction between expressive and functional code. [1] And then there are the specific tests that have been developed by the courts to separate the expressive and functional aspects of software. [2] [3] In practice it is very expensive for a plaintiff to do such analysis. For the most part the damages related to copyright are not worth the time and money. Plaintiffs tend to go for trade secret related damages as they are not restricted by the above tests. There are also arguments to be made of de minimis infringements that are not worth the time of the court. Most importantly the plaintiff fundamentally has the burden of proof and cannot just say that copying must have taken place. They need concrete evidence. [1] https://en.wikipedia.org/wiki/Idea–expression_distinction https://en.wikipedia.org/wiki/Idea–expression_distinction [2] https://en.wikipedia.org/wiki/Structure,_sequence_and_organization https://en.wikipedia.org/wiki/Structure,_sequence_and_organi... [3] https://en.wikipedia.org/wiki/Abstraction-Filtration-Comparison_test https://en.wikipedia.org/wiki/Abstraction-Filtration-Compari...

wvenable 2y ago

You probably do this all the time. Forget memorizing but undoubtedly you've read code, learned from it, and then likely reproduced similar code. Probably nothing terribly important, just a function here or there. Maybe even reproduced something you did for a previous employer.

Aerroon 2y ago
arr.sort((a, b) => a - b); comes to mind. I bet most js devs have written this verbatim.

JoshTriplett 2y ago

You have a much smaller lobbying budget than the AI industry, and you didn't flagrantly rush to copy billions of copyrighted works as quickly as possible and then push a narrative acting like that's the immutable status quo that must continue to be permitted lest the now-massive industry built atop copyright violation be destroyed. Violate one or two copyrights, get sued or DMCAed out of existence. Violate billions, on the other hand, and you magically become immune to the rules everyone else has to follow.

nadermx 2y ago
What about the copyrights purpose of furthering the arts and sciences?
- JoshTriplett 2y ago
  Copyright has utterly failed to serve that purpose for a long time, and has been actively counterproductive. But if you want to argue that copyright is counterproductive, I completely agree. That's an argument for reducing or eliminating it across the board, fairly, for everyone; it's not an argument for giving a free pass to AI training while still enforcing it on everyone else.
  - idle_zealot 2y ago
    Could these "free passes" for AI training serve as a legal wedge to increase the scope of fair use in other cases? Pro-business selective enforcement sucks, but so long as model weights are being released and the public is benefiting then stubbornly insisting that overzealous copyright laws be enforced seems self-defeating.
  - adra 2y ago
    Without copyright, entire industries would've been dead a long time ago, including many movies, games, books, tv, music, etc. Just because their lobbies tend to push the boundary of copyright into the absurd doesn't mean these industries aren't worth saving. There should be actually respectful lawmakers who seek for a balance of public and commercial interests.

hyperpape 2y ago

From the article: > The most recently dismissed claims were fairly important, with one pertaining to infringement under the Digital Millennium Copyright Act (DMCA), section 1202(b), which basically says you shouldn't remove without permission crucial "copyright management" information, such as in this context who wrote the code and the terms of use, as licenses tend to dictate. > It was argued in the class-action suit that Copilot was stripping that info out when offering code snippets from people's projects, which in their view would break 1202(b). > The judge disagreed, however, on the grounds that the code suggested by Copilot was not identical enough to the developers' own copyright-protected work, and thus section 1202(b) did not apply. Indeed, last year GitHub was said to have tuned its programming assistant to generate slight variations of ingested training code to prevent its output from being accused of being an exact copy of licensed software. So (not a lawyer!) this reads like the point about GitHub tuning their model is not a generic defense against any and all claims of copyright infringement, but a response to a specific claim that this violates a provision of the DMCA. I don't know whether this is a reasonable defense or not, but your intuitions or mine about whether there is a general copyright violation or what's fair are not necessarily relevant to how the judge construes that very specific bit of legal code.

xinayder 2y ago
What I got from this is, you can copy someone's copyrighted work provided you tweak a few things here and there. I wonder how this holds up in court if you don't have billions at your disposal.
- sleepybrett 2y ago
  Weird Al should be in the clear then, he changes probably 85% of all the song lyrics in his covers.
  - sensanaty 2y ago
    Weird Al explicitly seeks out permission from copyright holders and won't do a cover if he doesn't get their go-ahead [1]. Pretty much the exact opposite of all these AI companies :p https://www.weirdal.com/archives/faq/ https://www.weirdal.com/archives/faq/

skybrian 2y ago

The machine alone doesn't do anything. The user and machine together constitute a larger system, and with autocomplete, the user is charge. What's the user's intent? I suspect that a lot of copyright violations are enabled by cut-and-paste and screenshot-taking functionality, and maybe we need to be careful with autocomplete, too? It's the user's responsibility to avoid this. We should be careful using our tools. Do users take enough care in this case? Is it possible to take enough care while still using CoPilot? I've switched from CoPilot to Cody, but I use them the same way, to write my code. There's no particular reason to use CoPilot's output verbatim and lots of good reasons not to. By the time I've adapted it to my code base and code style and refactored it to hell and back, it's an expression of how I want to solve a problem, and I'm pretty confident claiming ownership. Is that confidence misplaced? Are other people more careless?

BeefWellington 2y ago
> The machine alone doesn't do anything. By the same token, the machine alone can't download pirated movies. Yet the sites hosting those movies are targeted as the infringers. There's a point at which foisting this responsibility on the users is simply socializing losses. Ultimately Copilot is the one serving the code up - regardless of the user's request. If the user then goes on to republish that work as their own it becomes two mistakes. It'll be interesting to see if any lawyers are capable of articulating that well enough in any of these lawsuits. > Is that confidence misplaced? Are other people more careless? I would say yes, for two reasons. One is that using code of unknown provenance means you're opening yourself to unknown legal risks. The second is if you're rewriting it fully (so as not to run afoul of easily spotted copyright) that's not actually "clean room" and you're still open to problems. I'd also wonder what the point of using a code writing LLM is anyways if you're doing all the authorship yourself. It seems like doing double the work.
- skybrian 2y ago
  It is a lot of work to do a lot of rewrites, but it’s noncommercial and I’m not in a hurry. And autocomplete is still pretty useful.

xorcist 2y ago

Why stop there? Extrapolate that thought, keep generating more variants of the code, claim copyright, and seek rent from other people doing the same thing. To extrapolate full circle, there would be a business opportunity to generate as many variants as possible for the original author, to prevent all this from happening. As long as we're not required to register copyright there's no reason to think the above will play out. International copyright agreements are not limited to verbatim copies only.

BeefWellington 2y ago
> Why stop there? Extrapolate that thought, keep generating more variants of the code, claim copyright, and seek rent from other people doing the same thing. To extrapolate full circle, there would be a business opportunity to generate as many variants as possible for the original author, to prevent all this from happening. This has already been done[1] in music, though in their case they released them to the public domain. Admittedly I think that was more of a protest than anything. [1]: https://www.vice.com/en/article/wxepzw/musicians-algorithmically-generate-every-possible-melody-release-them-to-public-domain https://www.vice.com/en/article/wxepzw/musicians-algorithmic...

eftychis 2y ago

Adding to the sibling comments: First: every human is per se doing that already. We have – to handwave – a "reasonable person" bar to separate violations versus results of learning and new innovation. Second: You can be a holder of copyright and your creations result in copyrightable artifacts. Anything generated by the program has been held as uncopyrightable.

_heimdall 2y ago

The actual answer here, regardless of a court ruling, is that you'd go broke if anyone big enough tried to go after you for it. Legal protections for source code are still pretty fuzzy, understandably so given how comparatively new the industry is. That doesn't stop lawyers from racking up huge fees though, it actually helps because they need so much more prep time to debate a case that is so unclear and/or lacking precedent.

griftrejection 2y ago

[dead]

ProAm 2y ago

> How is it any different when a machine does the same thing? Literally the bank account behind the action...

jollofricepeas 2y ago

No clue. But what if the generative AI were used to create music instead of code would the court have ruled differently? CONSIDER: In 2015, a federal judge order Thicke & Pharrell to pay 50% of proceeds to the Marvin Gaye estate for being “too similar” to the song, “Gots to Give It Up”. Comparison and commentary: https://youtu.be/7_UiQueteN4?si=SkClbyBMOcucigRm https://youtu.be/7_UiQueteN4?si=SkClbyBMOcucigRm Comparison of both songs: https://youtu.be/ziz9HW2ZmmY?si=3_VZzfoLT-NrozoK https://youtu.be/ziz9HW2ZmmY?si=3_VZzfoLT-NrozoK

roenxi 2y ago

If you tell a programmer to implement a function foo(a, b) then there are actually only a tiny number of ways to do that, semantically speaking, for any given foo. The number of options narrows quickly as the programmer implementing it gets more competent. Choosing function signatures is an art form but after that "copying" is hard to judge.

sva_ 2y ago
> a function foo(a, b) then there are actually only a tiny number of ways to do that I'd argue there are infinite ways to implement any function, just almost all of them are extremely bad.

woah 2y ago

You would not get your ass kicked legally speaking. Copyright is not that broad. It's not a patent.

skissane 2y ago

> I assume that I would get my ass kicked legally speaking. That reads to me exactly like deliberate copyright infringement with willful obfuscation of my infringement. It looks like wilful obfuscation because the obfuscation is so simplistic. But as the obfuscation gets increasingly sophisticated, it becomes ever harder to distinguish wilful obfuscation from genuine originality.

chii 2y ago
> But sufficiently complex obfuscation of infringement is very hard to distinguish from genuine originality. for the purposes of copyright, originality is not required, just different expressions. It's ideas (aka, patent) that require originality. The 'sufficiently complex obfuscation' is exactly what people's brains go through when they learn, and re-produced what they learnt in a different context. I argue that AI-training can be considered to be doing the same.
- skissane 2y ago
  Some different scenarios: (1) You leave your employer, don’t take any code with you, start your own company, reimplement your ex-employer’s product from scratch, but you do it in a very different way (different language, different design choices, different tech stack, different architecture) (2) You leave your employer, take their code with you, start your own company, make some superficial changes to their code to obscure your theft but the copying is obvious to anyone who scratches the surface (3) You leave your employer, take their code with you, start your own company, start very heavily manually refactoring their code, within a few months it looks completely different, very difficult to distinguish from (1) unless you have evidence of the process of its creation (4) You leave your employer, take their code with you, start your own company, download some “infringement obfuscation AI agent” from the Internet and give it your employer’s codebase, within a few hours it has transformed it into something difficult to distinguish from (1) if you didn’t know the history (1) is unlikely to be held to be infringing. (2) is rather obviously going to be held to be infringing. But what about (3)? IANAL, but I suspect if you admitted that is how you did it, a judge would be unlikely to be very sympathetic. Your best hope would be to insist you actually did (1) instead. And then the outcome of the case might come down to whether the judge/jury believes your claim you actually did (1), or the plaintiff/prosecution’s claim you did (3). And (4) is basically just (3) with AI to make it a lot faster and quicker. Such an agent likely doesn’t exist yet, but it could happen. Timing is obviously a factor. If you leave your employer and launch a clone of their app the next week, everyone is going to think either you stole their code, or you were moonlighting on writing it (in which case they may legally own it anyway). If it takes you 12 months, it becomes more believable you wrote it from scratch. But if someone uses AI to launder code theft, maybe they can build the “clone” in a few days or weeks, and then spend a few months relaxing and recharging before going public with it

bawolff 2y ago

> How is it any different when a machine does the same thing? I think the argument is that the machine is not doing that, or at least there isn't evidence that it is doing that. Specificly no evidence that github is doing both 1 and 2 at the same time. There might be cases where it makes trivial changes to code (point 2) but for code that does not meet the threshold of originality. Similarly there might be cases with copyrighted code where the idea of it is taken, but it is expressed in such a different way that it is not a straightforward derrivitave of the expression (keeping in mind you cannot copyright an idea, only its expression. Using a similar approach or algorithm is not copyright infringement) And finally, someone has to demonstrate it is actually happening and not just in theory could happen. Generally courts dont punish people for future crimes they haven't comitted yet (sometimes you can get in trouble for being reckless even if nothing bad happens, but i dont think that applies to copyrighg infringement)

constantcrying 2y ago

>I assume that I would get my ass kicked legally speaking. Why? This is no different than copy pasting and modifying a bit of code from some documentation/other project/tutorial/SO. Surely if that were a basis for copyright infringement most semi-large software projects would be infringing on copyright. I don't think anyone here should be willing to open the can if worms that is copy pasting small snippets of code and modifying them. The judge seems to argue that the non-identical copies are at issue here and that they only happen under contrived circumstances. My moral opinion is that this is irrelevant and that even the defendant is the wrong person. Even verbatim copies of code snippets shouldn't be copyright infringement and suing the company providing the AI is wrong to begin with, as the AI or its providercan not possibly be the one to infringe.

ExoticPearTree 2y ago

I don't think it works that way. During the course of your professional career as a developer you change jobs. And let's say that at every job you create APIs. Besides the particular functions those API provide, the API code itself (how you interact with clients, databases etc.) will be pretty much the same as whatever you did at previous jobs. Does this constitute copyright experience or is just experience? My analogy is that if Copilot doesn't provide 100% code from another repository it is OK to be used by other people trained with code available on GitHub.

sim7c00 2y ago

it depends on how much tax you are paying really. if you pay billions in taxes annually, they might see past it. if the company you copied from pays billions in taxes anually. you will go to jail. if this isn't painfuly obvious by now...

account42 2y ago
Doesn't seem that taxes are the deciding factor seing as how little the government cares about tax dodging done by corporations and the rich.

Kuinox 2y ago

You are taking the plaintiff statement as is, which is wrong. You can blame the media that didn't made it clear that it was a statement from the plaintiff.

isodev 2y ago

It would. And this is where some legislation "in the spirit of" would have helped. So Microsoft's huge legal arm can't just wiggle their way out on technicalities. Clearly, the law is not prepared to face the challenge of copyright violations on the scale created by the LLMs. I also think it's not just copyright. It's simply not right to create a product on top of the collective work of all open source developers monetize them on the absurt scale Microsoft operates and never ever credit the original creators.

bmitc 2y ago

Regardless of the details here, it's become quite clear that the judicial system is for corporations. It doesn't matter whether they win, lose, or settle, as they win regardless, since the monetary benefits of what got them in court in the first place far outweigh any punishment or settlement cost.

zephyr9 2y ago

It seems the total disregard that the tech community showed toward copyright when it was artists losing out has come back to bite. Face-eating leopards, etc.

bena 2y ago

I agree. I don’t see the difference. That’s the entire reason “clean room reverse engineering” is done. Using nothing but the binary itself, work out how things are done. Making sure that the reverse engineers don’t even have access to any material that could look like it came from the other organization in question. And that it is provable.

alickz 2y ago

who gets to copyright claim the various array sorting algorithms then?

kjellsbells 2y ago

Days like this, I wonder what Borges would have made of such questions. "Pierre Menard, author of redis" I know from experience that parents are aggressively pushing their children into STEM to maximize their chances of being economically secure, but, I really feel that we need a generation of philosophers and humanists to sift through the issues that our technology is raising. What does it mean to know something? What does authorship mean? Is a translated work the same as the original? Borges, Steiner, and the rest have as much to contribute as Ellison, Zuckerberg, and Altman.

p0w3n3d 2y ago

How is it anything different? You have no money. And Microsoft has. The problem on this is that it will give a huge leverage to rich companies over poor, because those rich can steal (memorize with AI) anything including music