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Analyzing the legal implications of GitHub Copilot

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Re: Analyzing the legal implications of GitHub Copilot

#41

Post by lindenksv85 »

zufallsheld wrote: post #24
lindenksv85 wrote: post #16

Earlier quoted context omitted.

They technically don’t distribute any code. They show it to you in a hosted environment. It’s the user that causes a distribution. They “provide it as part of the service.”

In the same vain streaming sites don't distribute movies, they show them to, you in a hosted environment. and this argument did not hold up in court.

OSS license obligations mostly kick in upon distribution, hence this is a pivotal concept in this context. It’s also important because of the language in the TOS that says the code won’t be used outside the service. The stuff related to streaming is kind of unrelated here because movies aren’t under copyleft licenses and so the question of whether or not there was distribution there is not relevant- the question is whether or not the copyright holder’s monopoly right were violated and those include the right of public performance, public display, as well as distribution. They would have violated other copyright rights even without a finding of distribution.

Re: Analyzing the legal implications of GitHub Copilot

#42

Post by kuratkull »

pc86 wrote: post #22
jefftk wrote: post #10

> If you look at the GitHub Terms of Service, no matter what license you use, you give GitHub the right to host your code and to use your code to improve their products and features. So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward. This doesn't sound right. Alice writes code, and releases it under some restrictive license (GPL, s…

If Bob is unable to give GitHub the rights that GitHub demands, then it means Bob was unable to lawfully upload the code to GitHub in the first place. You're making an argument that Bob violated GitHub's terms, not that GitHub is violating Alice's (though that may also be true).

Violating the TOS is not illegal, Bob would be in breach and GitHub could take measures against Bob's account. Github would be violating Alice's copyright license though, that is legally enforceable

Re: Analyzing the legal implications of GitHub Copilot

#43

Post by guitarbill »

lindenksv85 wrote: post #28
guitarbill wrote: post #9

It would be nice if we moved from a copyright discussion to an ethical one, since it could be years until the law is even tested. Is it ethical to do this, when some licenses are clearly chosen because of e.g. attribution or sharing improvements? Did Microsoft/GitHub consider the ethical implications, for example a chilling effect on code being open sourced in future (i.e. people choosing not to open source stuff so…

I think it’s important to recognize that most ML models will not be built in top of copyleft material. It will mostly use data that we as users have voluntarily provided to someone at some point and to which that platform now claims ownership. So we need to think long and hard about whether or not we believe any of these models should receive any copyright protection at all and in a much broader context. I think if w…

I don't know if by "You’re basically saying" you mean me specifically, but if you do, you're dead wrong. I'm not ok with this at all. However, I'm not so stupid to think me, as a non-IP lawyer can make sense of the current legal situation (which is what copyright is; law) or even propose new laws.

However, as a dev I can think about it and say "to me, this is immoral and unethical", and refuse to use Copilot, not work for any company that uses Copilot, not use GitHub/Microsoft products, pull code from GitHub (if I had any), and decide not to open source stuff in future. Ethics has always been underemphasised in software compared to other engineering disciplines.

Generally, non-technical people are (more) impacted by ML, but in this case it's us as developers and our open source communities. So I hope devs will give it some thought this time. And if this leads to devs thinking about ML more carefully in general, great. Things don't have to be illegal to be unethical.

Re: Analyzing the legal implications of GitHub Copilot

#44

Post by jefftk »

dogleash wrote: post #36
jefftk wrote: post #26

Earlier quoted context omitted.

GitHub's primary business is hosting open source software. There's no way they are going to claim that every user who uploaded code without owning the full rights is violating their TOS.

>There's no way they are going to claim that every user who uploaded code without owning the full rights is violating their TOS. If they're taken to court and that part of the TOS is relevant to the issue, then yes, they can and will argue exactly that.

That would destroy their business.

Re: Analyzing the legal implications of GitHub Copilot

#45

Post by Animats »

sudosysgen wrote: post #27
lindenksv85 wrote: post #20

Earlier quoted context omitted.

If you are putting up code on GitHub to which you don’t have all the rights you’re actually in violation of their TOS and you are violating the rights of other copyright holders. I understand this is common and may not violate community norms or expectations but it is technically a license violation on multiple fronts. Contributors who add to existing GitHub projects are providing the same license to GitHub as the pr…

But legally, they can't provide such a license. So GitHub can't have that license, surely, because they never had the legal authority to bestow it upon Github.

A third party who finds their GPL code on Github but is not themselves a user of Github has a right of action. They're not bound by Microsoft's terms.

Re: Analyzing the legal implications of GitHub Copilot

#46

Post by rjzzleep »

Zambyte wrote: post #14

Google Books is a great parallel to make with Microsoft's Copilot. The key differences between the two is A) Google Books produces verbatim results 100% of the time, while Microsoft's Copilot produces verbatim results some N > 0% of the time (with some % of results greater than N that would be considered a derivative if a human wrote it), and B) Google Books doesn't make the claim that you own the copyright to any gr…

If you copy a quote from Google Books you still have to attribute the original author. It's not magically your text just because it was hosted on Google Books. Why do they even compare these two?

You can compare Github itself with Google Books, but not copilot.

Re: Analyzing the legal implications of GitHub Copilot

#48

Post by rjzzleep »

jcelerier wrote: post #30

> "To the extent you see a piece of suggested code that’s very clearly regurgitated from another source — perhaps it still has comments attached to it, for example — use your common sense and don’t use those kinds of suggestions.” how is "use common sense" even remotely a meaningful thing

Especially coming from a supposed lawyer.

Re: Analyzing the legal implications of GitHub Copilot

#49

Post by sokoloff »

wolverine876 wrote: post #13
dekhn wrote: post #2

These agree with my conclusions- it's fair use or permitted by license, but that it remains untested (as the GPL does in a larger sense) by law. I guess in about 5 years we'll see Softbank v. GitHub CoPilot in the supreme court deciding whether ML can make transformative work.

Why do we accept that the courts are so slow? I don't understand why there isn't a drive to reform courts by accelerating outcomes by an order of magnitude, and by making outcomes not depend on wealth.

A court needs a case. A case requires at least one litigant who is willing to go all the way to the extent of forcing a court hearing (rejecting settlements along the way and risking that a court will decide against them). I don’t see the courts as being the rate-limiting factor when we’re contemplating licenses that are 30 years old last month (GPL v2)

Re: Analyzing the legal implications of GitHub Copilot

#50

Post by rightbyte »

lindenksv85 wrote: post #20
kzrdude wrote: post #8

Earlier quoted context omitted.

What about open source projects where the uploader and github users are not the only copyright holders? As a user i can't grant github any random license for the code, if I maintain for example Linux or python or any other old project there. The ONLY available terms are those given by the license, surely?

If you are putting up code on GitHub to which you don’t have all the rights you’re actually in violation of their TOS and you are violating the rights of other copyright holders. I understand this is common and may not violate community norms or expectations but it is technically a license violation on multiple fronts. Contributors who add to existing GitHub projects are providing the same license to GitHub as the pr…

I guess the Github Copilot authors did not handpick projects they checked were legitimately put on Github. So they are accomplices in that case.
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