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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

#281

Post by [deleted] »

jrm4 wrote: post #261
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…

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…

[deleted]

Re: All public GitHub code was used in training Copilot

#282

Post by dtech »

IgorPartola wrote: post #210
_Understated_ wrote: post #202

Earlier quoted context omitted.

> By comparison, Copilot is even more obviously fair use. Not sure I see it that way. If I take your hard work that you clearly marked with a GPL license and then make money from it, not quite directly, but very closely, how is that fair use? Or legal? Copying and storing a book isn't recreating another book from it. Copilot is creating new stuff from the contents of the "books" in this case. Edit: I misunderstood fa…

If you view GPL code with your browser would that mean that your browser now has to be GPL as well? In the sense that copilot is not much different than a browser for Stack Overflow with some automation, why would it need to be GPLed? Your own code on the other hand…

If you use your browser to copy some GPL code into your project your project must now be GPL as well.

So following your own argument, even if Copilot is allowed, using it still risks you falling under GPL

Re: All public GitHub code was used in training Copilot

#284

Post by [deleted] »

blendergeek wrote: post #181
schneidmaster wrote: post #162

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. This article[0] does a pretty good job of summarizing the rationale that the courts have provided. My (non-lawyer) take is that GitHub is pushing this just half a step farther -- if computers can consume copyrighted material, and…

> 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…

[deleted]

Re: All public GitHub code was used in training Copilot

#285

Post by extra88 »

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…

Yes to all this.

I think the factor most at risk in a fair use test with Copilot is whether it ever suggests verbatim, code that could be considered the "heart" of the original work. The John Carmack example that's popped up here at least gets closer to this question, it was a relatively small amount but it was doing something very clever and important.

One can imagine a project that has thousands of lines of code to create a GUI, handle error conditions, etc. that's built around a relatively small function; if Copilot spat out that function in my code, it might not be fair use because it's the "heart" of the original work. Additionally, its inclusion in another project could affect the potential market for the original, another fair use test.

But Copilot suggesting a "heart" is unlikely, something that would have to be ruled on in a case-by-case basis and not a reason to shut it down entirely. Companies that are risk-averse could forbid developers from using Copilot.

Re: All public GitHub code was used in training Copilot

#286

Post by shakna »

AaronFriel wrote: post #231
shakna wrote: post #201

Earlier quoted context omitted.

> No, see Authors Guild v. Google. That case required that the output be transformative, in that "words in books are being used in a way they have not been used before". Copilot only fits the transformative aspect if it is not directly reciting code, that already exists in the form that it is redistributing. So long as it does so, it fails to meet the criteria.

Is there any evidence of Copilot producing substantial (100s of lines) verbatim copies of copyrighted works? Absent this, I don't think there's a case. The courts have given extraordinarily wide latitude to fair use and ML algorithms are routinely trained on copyrighted works, photos, etc. without a license. I understand that this feels more personal because it involves our field, but artists and authors have express…

> Is there any evidence of Copilot producing substantial (100s of lines) verbatim copies of copyrighted works?

It doesn't need to be substantial. In Google v. Oracle a 9-line function was found to be infringing.

Re: All public GitHub code was used in training Copilot

#287

Post by dtech »

tyre wrote: post #262
otterley wrote: post #234

Earlier quoted context omitted.

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).

The Google vs Oracle case showed that SCOTUS can handle technical topics

Re: All public GitHub code was used in training Copilot

#288

Post by logifail »

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…

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

...and if you're outside the USA?

Re: All public GitHub code was used in training Copilot

#289

Post by MadcapJake »

PieUser wrote: post #241
_Understated_ wrote: post #223

Earlier quoted context omitted.

> Google did not scan those books and use it to build new books with different titles. The comparison doesn't hold up at all. Not sure if you meant to reply to me but I agree with you: you can't compare what Google did to what Copilot does.

Copilot just suggests code.

If I suggest whole lines of dialogue to you, the screenwriter, did I write those lines or you? If you change names in those lines of dialogue to fit your story, do you now gain credit for writing those lines?

Suggesting code is generating code

Re: All public GitHub code was used in training Copilot

#290

Post by jefftk »

rubyist5eva wrote: post #140

Open source developers need a new kind of license with a ML model training clause, so there is no more ambiguity if they don't want their code to be used in this way.

That doesn't work: your suggestion applies at too late a stage in the flowchart. It looks like:

1. Do you need a license to use materials for training, or to use the output model?

2. If so, does the code's license allow this?

GitHub is claiming 'no' for #1, that they do not need any sort of license to the training materials. This is reasonably standard in ML; it's also how GPT-3 etc were trained.

Now, whether a court will agree with their interpretation is an interesting question, but if they are correct then #2 doesn't come into play.

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