One interesting aspect, that I thing will make it difficult for GitHub to argue and justify its not a a license violation would be the answer to the following question: Was Copilot trained using Microsoft internal source code or will it be in the future ? As GitHub is a Microsoft company and OpenAI although a non-profit just got a massive one billion investment from Microsoft (presumably not for free), will it start…
They don't claim it wouldn't be a license violation, they claim licensing is irrelevant because copyright protection doesn't apply.
> And if it was NOT trained on Microsoft source code, because it could starting suggesting some of it...Is that not a validation that the results it produces are a derivative work based on the work of the open source code corpus it was trained on ?
No, that would just show them to not want to expose their proprietary code. It doesn't prove anything about derivative works.
Also, their own claim is not that the results aren't a derivative work but that training an AI is fair use, which is an exception to the exclusive rights under copyright, including the exclusive right to create derivative works.