5 ms·

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

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...
- talldayo 2y ago
  > Point is, the legal system is highly selective when it comes to corporate interests. I don't even think it's that. In recent cases like Oracle v. Google and Corellium v. Apple, Fair Use prevailed with all sorts of conflicting corporate interests at play. The Zenimax v. Oculus case very much revolved around NDAs that Carmack had signed and not the propagation of trade secrets. Where IP is strictly the only thing being concerned, the literal interpretation of Fair Use does still seem to exist. Or for a more plain example, Authors Guild. v. Google where Google defended their indexing of thousands of copywritten books as Fair Use.
  - tpmoney 2y ago
    In fact, go to far as to argue your example of Authors Guild v. Google is a good indication that most cases will probably go an AI platform's way. It's a pretty parallel case to a number of the arguments. Indexing required ingesting whole works of copyright material verbatim. It utilized that ingested data to produce a new commercial work consisting of output derived from that data. If I remember the case correctly, google even displayed snippets when matching a search so the searcher could see the match in context, reproducing the works verbatim for those snippets and one could presume (though I don't recall if it was coded against), that with sufficiently clever search prompts, someone could get the index search to reproduce a substantial portion of a work. Arguably, the AI platforms have an even stronger case as their nominal goal is not to have their systems reproduce any part of the works verbatim.
torginus 2y ago
If I were to license a cover of a song for a music video, I'd have to license both the original song and the cover itself. I'd say this is extremely relevant in this case.
- bryanrasmussen 2y ago
  if that is the case why do people ever license covers? to clarify - I thought you just had to negotiate with the cover artist about rights and pay a nominal fee for usage of the song for cover purposes - that is to say you do not negotiate with the original artist, you negotiate with a cover artist and the whole process is cheaper?
  - seanhunter 2y ago
    You're maybe thinking about this in a way that's not helping you to understand the system and why it works the way it does. It's very clear when you think of a specific case. Say you want to make a recording of "Valerie" by the Zutons. You need permission (a license) from the songwriters (the Zutons presumably) to do this. You usually get this permission by paying a fee. Having done that, you can do your recording. Whenever that recording is played (or used) you will get a performance royalty and they will get a songwriting royalty. Say you want to use a cover of "Valerie" by the Zutons in your film or whatever. Say the Mark Ronson version featuring Amy Winehouse. You need permission (a license) from the person who produced that version (Mark Ronson or his company) and will need to pay them a fee, some of which goes to the songwriter as part of their deal with Mark Ronson which gave him the license to produce his cover in the first place. The Zutons don't have the right to sell you a license to Mark Ronson's version so if that's the version you want you have to negotiate with him. Likewise he doesn't have the right to sell you a license like the license he has (ie a license to do a recording/performance) so if you want that you have to negotiate with them.
    - bryanrasmussen 2y ago
      OK it seems exactly what I thought and described, and the opposite of what the parent poster described. The parent poster said that if you want to use the cover of the song you need to negotiate with both the people who did the cover and the original rights owner. The closest I could get to a situation like that would be if I told Band B do a cover of Song A for my movie and I paid the licensing costs as part of my deal with Band B, but still not the same as the parent poster's description.
giamma 2y ago
Software like Blackduck or Scanoss is designed to identify exactly that type of behaviour. It is used very often to scan closed source software and to check whether it contains snippets that are copied from open source with incompatible licenses (e.g. GPL). To be able to do so, these softwares build a syntax tree of what your code snippet is, and compare the tree structure with similar trees in open source software without being fooled by variable names. To speed up the search, they also compute a signature for these trees so that the signature can be more easily searched in their database of open source code.
- cmcaleer 2y ago
  But there has to be a threshold. If a GPL project contains a function which takes two variables and returns x+y, and I have functionally identical code in a project I made with an incompatible license, it is obviously absurd to sue me.
  - ranger_danger 2y ago
    You're right, there is. The threshold is whatever a court decides is "substantial similarity" in that particular case. But there's no way to know that ahead of time as the interpretation/decision is subjective.
  - giamma 2y ago
    You are right but there is no legally defined threshold so it's subjective. As a matter of fact, the Eclipse Foundation requires every contributor to declare that every piece of code is their own original creation and is not a copy/paste from other projects, with the exception possibly of other Eclipse Foundation or Apache Foundation projects because their respective licenses allow that. Even code snippets from StackOverflow are formally forbidden. If I am not mistaken, in the Oracle-Google trial over Java on Android, at the end Google re-implementation of Java API on Android was considered fair-use, because Google kept the original "signatures" of the Java SDK API and rewrote most of the implementation with the exception of copying "0.4% of the total Java source code and was minimal" [1] However the trial came to this conclusion after several iterations in court. [1] https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_Inc https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_....
scott_w 2y ago
While correct, the example given is that they COPY the code, then make adjustments to hide the fact. I suspect this is still a copyright violation. It’s interesting that a judge sees it differently when it’s just run through a programme. I’m not a legal expert so I’m guessing it’s a bit more complex than the headline?
- scott_w 2y ago
  Ok I read the article and it looks like the issue is the DMCA specifically, which require the code to be more identical than is presented. I’m guessing separate claims could still come from other copyright laws?
- itishappy 2y ago
  No copy-paste was explicitly used. They compressed it into a latent space and recreated from memory, perhaps with a dash of "creativity" for flavor. Hypothetically, of course. The distinction is pedantic but important, IMHO. AI doesn't explicitly copy either.
  - scott_w 2y ago
    But isn’t that the same as memorising it and rewriting the implementation from memory? I’m sure “it wasn’t an exact reproduction” is not much of a defence.
    - itishappy 2y ago
      I sure think so. I also think that (to first order) this is exactly what modern AI products do. Is a lossy copy still a copy?
      - scott_w 2y ago
        I would have thought so but I’m not a lawyer. The article suggests DMCA is intended for direct copies so that’s why it failed here. Maybe more general copyright laws would apply for lossy copies.

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...

talldayo 2y ago
> Point is, the legal system is highly selective when it comes to corporate interests. I don't even think it's that. In recent cases like Oracle v. Google and Corellium v. Apple, Fair Use prevailed with all sorts of conflicting corporate interests at play. The Zenimax v. Oculus case very much revolved around NDAs that Carmack had signed and not the propagation of trade secrets. Where IP is strictly the only thing being concerned, the literal interpretation of Fair Use does still seem to exist. Or for a more plain example, Authors Guild. v. Google where Google defended their indexing of thousands of copywritten books as Fair Use.
- tpmoney 2y ago
  In fact, go to far as to argue your example of Authors Guild v. Google is a good indication that most cases will probably go an AI platform's way. It's a pretty parallel case to a number of the arguments. Indexing required ingesting whole works of copyright material verbatim. It utilized that ingested data to produce a new commercial work consisting of output derived from that data. If I remember the case correctly, google even displayed snippets when matching a search so the searcher could see the match in context, reproducing the works verbatim for those snippets and one could presume (though I don't recall if it was coded against), that with sufficiently clever search prompts, someone could get the index search to reproduce a substantial portion of a work. Arguably, the AI platforms have an even stronger case as their nominal goal is not to have their systems reproduce any part of the works verbatim.

torginus 2y ago

If I were to license a cover of a song for a music video, I'd have to license both the original song and the cover itself. I'd say this is extremely relevant in this case.

bryanrasmussen 2y ago
if that is the case why do people ever license covers? to clarify - I thought you just had to negotiate with the cover artist about rights and pay a nominal fee for usage of the song for cover purposes - that is to say you do not negotiate with the original artist, you negotiate with a cover artist and the whole process is cheaper?
- seanhunter 2y ago
  You're maybe thinking about this in a way that's not helping you to understand the system and why it works the way it does. It's very clear when you think of a specific case. Say you want to make a recording of "Valerie" by the Zutons. You need permission (a license) from the songwriters (the Zutons presumably) to do this. You usually get this permission by paying a fee. Having done that, you can do your recording. Whenever that recording is played (or used) you will get a performance royalty and they will get a songwriting royalty. Say you want to use a cover of "Valerie" by the Zutons in your film or whatever. Say the Mark Ronson version featuring Amy Winehouse. You need permission (a license) from the person who produced that version (Mark Ronson or his company) and will need to pay them a fee, some of which goes to the songwriter as part of their deal with Mark Ronson which gave him the license to produce his cover in the first place. The Zutons don't have the right to sell you a license to Mark Ronson's version so if that's the version you want you have to negotiate with him. Likewise he doesn't have the right to sell you a license like the license he has (ie a license to do a recording/performance) so if you want that you have to negotiate with them.
  - bryanrasmussen 2y ago
    OK it seems exactly what I thought and described, and the opposite of what the parent poster described. The parent poster said that if you want to use the cover of the song you need to negotiate with both the people who did the cover and the original rights owner. The closest I could get to a situation like that would be if I told Band B do a cover of Song A for my movie and I paid the licensing costs as part of my deal with Band B, but still not the same as the parent poster's description.

giamma 2y ago

Software like Blackduck or Scanoss is designed to identify exactly that type of behaviour. It is used very often to scan closed source software and to check whether it contains snippets that are copied from open source with incompatible licenses (e.g. GPL). To be able to do so, these softwares build a syntax tree of what your code snippet is, and compare the tree structure with similar trees in open source software without being fooled by variable names. To speed up the search, they also compute a signature for these trees so that the signature can be more easily searched in their database of open source code.

cmcaleer 2y ago
But there has to be a threshold. If a GPL project contains a function which takes two variables and returns x+y, and I have functionally identical code in a project I made with an incompatible license, it is obviously absurd to sue me.
- ranger_danger 2y ago
  You're right, there is. The threshold is whatever a court decides is "substantial similarity" in that particular case. But there's no way to know that ahead of time as the interpretation/decision is subjective.
- giamma 2y ago
  You are right but there is no legally defined threshold so it's subjective. As a matter of fact, the Eclipse Foundation requires every contributor to declare that every piece of code is their own original creation and is not a copy/paste from other projects, with the exception possibly of other Eclipse Foundation or Apache Foundation projects because their respective licenses allow that. Even code snippets from StackOverflow are formally forbidden. If I am not mistaken, in the Oracle-Google trial over Java on Android, at the end Google re-implementation of Java API on Android was considered fair-use, because Google kept the original "signatures" of the Java SDK API and rewrote most of the implementation with the exception of copying "0.4% of the total Java source code and was minimal" [1] However the trial came to this conclusion after several iterations in court. [1] https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_Inc https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_....

scott_w 2y ago

While correct, the example given is that they COPY the code, then make adjustments to hide the fact. I suspect this is still a copyright violation. It’s interesting that a judge sees it differently when it’s just run through a programme. I’m not a legal expert so I’m guessing it’s a bit more complex than the headline?

scott_w 2y ago
Ok I read the article and it looks like the issue is the DMCA specifically, which require the code to be more identical than is presented. I’m guessing separate claims could still come from other copyright laws?
itishappy 2y ago
No copy-paste was explicitly used. They compressed it into a latent space and recreated from memory, perhaps with a dash of "creativity" for flavor. Hypothetically, of course. The distinction is pedantic but important, IMHO. AI doesn't explicitly copy either.
- scott_w 2y ago
  But isn’t that the same as memorising it and rewriting the implementation from memory? I’m sure “it wasn’t an exact reproduction” is not much of a defence.
  - itishappy 2y ago
    I sure think so. I also think that (to first order) this is exactly what modern AI products do. Is a lossy copy still a copy?
    - scott_w 2y ago
      I would have thought so but I’m not a lawyer. The article suggests DMCA is intended for direct copies so that’s why it failed here. Maybe more general copyright laws would apply for lossy copies.