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All public GitHub code was used in training Copilot

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Re: All public GitHub code was used in training Copilot

#261

Post by jrm4 »

AaronFriel wrote: post #193
keonix wrote: post #185

If the training set contains verbatim (A)GPL code does this mean that Copilot also should be distributed by Microsoft under GPL? Because without it Copilot (as it is distributed by Microsoft) couldn't be built, wouldn't it make it a derivative work of GPL'd code (and obviously every other license)? I see a lot of people comparing human learning to machine learning in the comments, but there is a huge difference - we…

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 befo…

You're strongly and incorrectly implying that "Fair Use" is a clear (and relatively immutable) concept within copyright law, which couldn't be further from the truth. Even if this or that particular case sets out what appears to be solid grounds, one shouldn't take that as gospel by any means.

This mostly has to do with the nature of the wishy-washy nature of the 4 part Fair Use test, which, unlike decent legal tests, doesn't actually have discrete answers. The judge looks at the 4 questions, talks about them while waving her hands, and makes a decision.

Comparing to, e.g., Patent, where you actually do have yes-or-no questions. Clean Booleans. Is it Novel? Is it Non-Obvious? Is it Useful? If any of the above is "No", then no patent for you.

As for the execution of Fair Use, while I haven't gone too deep into Software, I can assure that for music, the thing is just a silly holy-hell mess; confirmed most recently by the "Blurred Lines" case, where NO DIRECT COPYING (e.g. sampling or melody taking) was alleged, merely that the song sounded really similar to "Got to give it up" and that was enough.

So then, I'd say everything either is, or should be, up in the air, when it comes to Fair Use and software.

Re: All public GitHub code was used in training Copilot

#262

Post by tyre »

otterley wrote: post #234
AaronFriel wrote: post #193

Earlier quoted context omitted.

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 befo…

If this issue is eventually litigated, we will see. The law in the Second Circuit (where the final judgment was rendered before the case was eventually settled) may well be different than the law in a different circuit. If there is a split in the circuit courts, then the Supreme Court may have to weigh in on this issue. When fair use is an issue, the courts look at the facts in context each time. These are obviously…

This could either be:

1. a fascinating Supreme Court opinion.

2. a frustrating ruling because SCOTUS doesn't understand software and code.

3. the type of anti-anticlimactically(?) narrow ruling typical of the Roberts court.

While our Congresspersons can't seem to wrap their minds around technology/social media, I think SCOTUS would understand this one enough to avoid (2).

Re: All public GitHub code was used in training Copilot

#263

Post by extra88 »

echelon wrote: post #204
AaronFriel wrote: post #193

Earlier quoted context omitted.

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 befo…

> 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. For commercial use and derivative works? Authors won't incorporate snippets of books into new works unless they're reviews. Copilot is different.

> Authors won't incorporate snippets of books into new works

Of course they do, previous works are quoted all the time.

Re: All public GitHub code was used in training Copilot

#264

Post by ghoward »

8note wrote: post #237
_Understated_ wrote: post #218

Earlier quoted context omitted.

> You can wipe your ass with the GPL license if your use of the product falls within Fair Use. Is Copilot fair use? It's reading code, generating other code (some verbatim) and making money from it all while not having to release its source code to the world? > That doesn't mean that GitHub has to redistribute Copilot under GPL I wasn't saying that was the case: some of the code that Copilot used may not allow redist…

Making money is irrelevant to fair use

Totally relevant: https://en.wikipedia.org/wiki/Fair_use#1._Purpose_and_charac... .

Re: All public GitHub code was used in training Copilot

#265

Post by formerly_proven »

spywaregorilla wrote: post #184
cool_dude85 wrote: post #161

Earlier quoted context omitted.

Did copilot spring from the aether? Or was it built and trained on licensed code by github? Someone did something.

It's not a violation of copyright to train a model. There are three questions at play though: 1) Can you be liable for violating copyright if you have never seen the work? 2) Can a non-human be held accountable for violating copyright? 3) Can github be held liable for an end user using their tool to violate copyright? https://en.wikipedia.org/wiki/Substantial_similarity wikipedia states: Generally, copying cannot be…

> It's not a violation of copyright to train a model.

Many people on HN assert this based on the Authors Guild vs. Google case, but it's quite important to keep in mind that that case was about Google creating a search algorithm, which is not generating "new" output.

We are talking about a very different kind of system here and in many other cases. Claiming the Authors Guild case sets precedent for these very different systems seems unbased to me.

Re: All public GitHub code was used in training Copilot

#266

Post by jefftk »

indymike wrote: post #212
AaronFriel wrote: post #193

Earlier quoted context omitted.

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 befo…

Books (mostly) are not distributed under the GPL.

The GPL only gives you additional permissions relative to what you would have by default. The books included in that suit were more strongly restricted, since there was no license at all.

Re: All public GitHub code was used in training Copilot

#267

Post by _Understated_ »

schneidmaster wrote: post #214
_Understated_ wrote: post #178

Earlier quoted context omitted.

I don't doubt that an army of lawyers has poured over this but they have size on their side: the cost of litigation vs potential revenue will be a massive factor. Edit: > There's a decent bit of caselaw indicating that computers reading and using a copyrighted work simply "don't count" in terms of copyright infringement. That means their computer can read any code it wants, do whatever it wants with the code, then th…

Again, not a lawyer, just a guy who likes reading this stuff. The devil is usually in the details of copyright cases. The Turnitin case hinged substantially on whether Turnitin's use of copyrighted essays was "fair use". There are four factors[0] which determine fair use; the two more relevant factors here are "the purpose and character of your use" and "the effect of the use upon the potential market". The court fou…

I thought I understood fair use but turns out I was wrong...

That being said, creating a transformative work from something else is considered fair use. So, for example, if I read a whole bunch of books and then, heavily influenced by them, create my own, similar book, that would be fair use I suppose... that makes sense.

But, where does the derivative works come in? Where do you draw the line?

If I am heavily influenced by billions of lines of other people's GPL code (ala Copilot!), then I create my own tool from it and keep my code hidden, does that not mean I am abusing the GPL license?

Re: All public GitHub code was used in training Copilot

#268

Post by [deleted] »

ghoward wrote: post #215
rambambram wrote: post #188

I'm a programmer and also studied law for some time. These stories make me - once more - realize the old adage: "Possession is nine tenths of the law." Don't host that code in the cloud (or a better term, someone else's dirty bucket). What happened to developers hosting stuff on their own website!?

This is why I have now moved my code off of GitHub.

[deleted]

Re: All public GitHub code was used in training Copilot

#269

Post by ska »

AaronFriel wrote: post #193
keonix wrote: post #185

If the training set contains verbatim (A)GPL code does this mean that Copilot also should be distributed by Microsoft under GPL? Because without it Copilot (as it is distributed by Microsoft) couldn't be built, wouldn't it make it a derivative work of GPL'd code (and obviously every other license)? I see a lot of people comparing human learning to machine learning in the comments, but there is a huge difference - we…

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 befo…

> By comparison, Copilot is even more obviously fair use.

You are correct about (US specific) the fair use exception, but it is in no way as clear as you suggest that what copilot is doing entirely falls under fair use. Fair use is always constrained.

I suspect some variant of this sort of thing will have to be tested in court before the arguments are really clear.

Re: All public GitHub code was used in training Copilot

#270

Post by ghoward »

someone7x wrote: post #251
blendergeek wrote: post #181

Earlier quoted context omitted.

> There's a decent bit of caselaw indicating that computers reading and using a copyrighted work simply "don't count" in terms of copyright infringement -- only humans can infringe copyright. I have read variations of "computers don't commit copyright" more times than I can count in the past few days. How is Copilot different from a compiler? (Please give me the legal answer, not the technical answer. I now the diffe…

You just blew my mind with that analogy. I can only imagine some hair-splitting logic to rationalize a distinction.

The analogy goes even further if you consider compiler optimizations: https://gavinhoward.com/2021/07/poisoning-github-copilot-and... .
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