All public GitHub code was used in training Copilot

> It’s not copyright violation to train ML on content.

The training is not a copyright violation. That seems to be settled case law. Whether the verbatim copying as a result of that training is a copyright violation I think is less tested.

Let’s flip the domains. Say we had an ML algorithm that could auto generate news stories and it at some point (not all the time) copied verbatim a Wall Street Journal article and posted it to a blog. Copyright violation?

With copilot, we’re sometimes seeing “paragraphs” of source lines copying verbatim, so this analogy is not such a stretch.

I think we need to think about how much our sharing culture in programming has tinted our view of the legality of this enterprise.

No, see Authors Guild v. Google. Even without a license or permission, fair use permits the mass scanning of books, the storage of the content of those books, and rendering verbatim snippets of those books. The Google Books site is not a derivative work of the millions of authors they copied from, and if they did copy any coincidentally GPL, AGPL, or creative commons copyleft work, the fair use exception applies before we reach the question of whether Google is obligated to provide anything beyond what it is doing.

By comparison, Copilot is even more obviously fair use.

I've had this conversation quite a few times lately, and the non-obvious thing for many developers is that fair use is an exception to copyright itself.

A license is a grant of permission (with some terms) to use a copyrighted work.

This snippet from the Linux kernel doesn't make my comment here or the website Hacker News a GPL derivative work:

    ret = vmbus_sendpacket(dev->channel, init_pkt,
        sizeof(struct nvsp_message),
        (unsigned long)init_pkt, VM_PKT_DATA_INBAND,
        VMBUS_DATA_PACKET_FLAG_COMPLETION_REQUESTED);

This snippet from an AGPL licensed project, Bitwarden, does not compel dang or pg to release the Hacker News source code:

    await _sendRepository.ReplaceAsync(send);
    await _pushService.PushSyncSendUpdateAsync(send);
    return (await _sendFileStorageService.GetSendFileDownloadUrlAsync(send, fileId), false, false);

Fair use is an exception to copyright itself. A license cannot remove your right to fair use.

The Free Software Foundation agrees (https://www.gnu.org/licenses/gpl-faq.en.html#GPLFairUse)

> Yes, you do. “Fair use” is use that is allowed without any special permission. Since you don't need the developers' permission for such use, you can do it regardless of what the developers said about it—in the license or elsewhere, whether that license be the GNU GPL or any other free software license.

> Note, however, that there is no world-wide principle of fair use; what kinds of use are considered “fair” varies from country to country.

(And even this verbatim copying from FSF.org for the purpose of education is... Fair use!)

I'm really hoping some big corp whose codebase is source-available and on GitHub but still under copyright, takes the piss out of them for this

Copilot isn't strange from a technical prespective.

The strange bit is how they are allowed to use other peoples code to create derivative works (this is how I see it from my non-legal perspective anyway).

Even if it's legal (to the letter of the law, not the spirit) it leaves a sour taste.

Would that mean I can start sampling songs if they get fed through a neutral network? It'll be fine if I train it on whatever is playing on the radio right? Doing the same for poems?