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Analyzing the legal implications of GitHub Copilot

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Re: Analyzing the legal implications of GitHub Copilot

#71

Post by heavyset_go »

tompazourek wrote: post #65
tvirosi wrote: post #61

If this really counts as fair use it turns into a giant loophole to steal any IP you want. Just create a website with a github-like TOS, upload some disney copyrighted pictures to it, train a GAN super overfitted on the images, and then claim mickey mouse as your own.

This is interesting. But I think you'd violate Disney's copyright by uploading their pictures to the website. To make it work, Disney would have to upload the pictures themselves and agree to the TOS.

Is GitHub making sure that license terms are being met when they train Copilot on hosted code? Because anyone can rehost code that they don't have the rights to, and it seems like GitHub will still train Copilot on it.

Re: Analyzing the legal implications of GitHub Copilot

#72

Post by invokestatic »

heavyset_go wrote: post #69

> “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,” Downing says. “So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward.” GitHub's Terms of Service doesn't override licensing terms.

Actually, it does. When you upload code to Github, you are effectively "dual licensing" the code to them under Github's terms. Github is not bound to any other licenses you may have applied to your license, because it did not agree to those terms. It only agreed to the terms spelled out in the Terms of Service. Of course, there are edge cases in which you could upload code to Github that you do not own, for which I do not know the answer to.

Re: Analyzing the legal implications of GitHub Copilot

#73

Post by bigwavedave »

lindenksv85 wrote: post #51
kuratkull wrote: post #42

Earlier quoted context omitted.

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

Sort of. DMCA protects service providers against copyright infringement claims related to stuff uploaded to their services by third parties. So long as they adhere to DMCA requests, they’re not violating copyright law themselves.

> Sort of. DMCA protects service providers against copyright infringement claims related to stuff uploaded to their services by third parties. So long as they adhere to DMCA requests, they’re not violating copyright law themselves.

This is probably an extremely stupid question as I'm neither a lawyer nor an ML dev (merely an humble backend developer), but let's say that the above situation applies and that Github has taken down Bob's repo as per Alice's DMCA request. However, let's say that in between Bob uploading the offending code and Alice submitting the DMCA request, Github used Bob's repo as part of a training set for Copilot. Now that they've complied with the takedown request, does Github have to restore Copilot to an earlier state that hadn't yet been trained by Bob's repo? Does this question even make sense since I only know the absolute barest bones of ML?

Re: Analyzing the legal implications of GitHub Copilot

#74

Post by lakecresva »

heavyset_go wrote: post #69

> “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,” Downing says. “So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward.” GitHub's Terms of Service doesn't override licensing terms.

It doesn't have to, the rights you grant Github when you agree to the ToS and upload your work exist independent of any rights you might grant as part of the repo's license.

Re: Analyzing the legal implications of GitHub Copilot

#75

Post by heavyset_go »

kbenson wrote: post #12
SethTro wrote: post #4

I find the first argument, that if you're project is in GitHub then they have the right to train in it, weak. Plenty of projects are hosted elsewhere but have been mirrored by random users (e.g. not the copyright holder) to GitHub

I think they have a right to train in it, but not to present portions verbatim. Do you have a right to look at a bunch of open source code and come to conclusions about good programming practices? Are you prevented from knowing that a specific library in a language is good/common for a specific task because you see others using it? That's analogous to training, where there are associations between things, in my mind.…

You're taking the machine "learning" metaphor literally. A human being learning something is not analogous to training an ML model. Training models is more analogous to compilation or lossy encoding or compression.

Re: Analyzing the legal implications of GitHub Copilot

#76

Post by zja »

phkahler wrote: post #66
tyingq wrote: post #3

“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,” Downing says. “So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward.” I don't know if it's really that straightforward. The TOS includes snippets like th…

Yeah, I don't think bettering their products includes verbatim incorporation of code into those products. Also, for the part about small snippets being non copyrightable. I would suggest looking at the Google/Oracle case. Google was found guilty of infringement for a very small number of lines, but the award to Oracle was IIRC rather a joke (something like one dollar, indicating it was infringing but largely irreleva…

The Supreme Court found Google’s use to be fair, not infringement.

Re: Analyzing the legal implications of GitHub Copilot

#77

Post by LeifCarrotson »

grawprog wrote: post #21
tyingq wrote: post #3

“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,” Downing says. “So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward.” I don't know if it's really that straightforward. The TOS includes snippets like th…

> to use your code to improve their products and features >It also does not grant GitHub the right to otherwise distribute or use Your Content I'm curious. Copilot isn't actually part of github. It's a plugin for Visual Studio wouldn't that mean copilot is distributing code hosted on github, outside of github? You can't use copilot without visual studio. How is this not Microsoft just parasitizing all the code hosted…

I think it all depends on who 'they' are and what 'their products' re. The definition says:

> 'GitHub,' 'We,' and 'Us' refer to GitHub, Inc., as well as our affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees.

Does that also include OpenAI? Does it include the Visual Studio team? All of Microsoft?

The license granted by users to Github is:

> We need the legal right to do things like host Your Content, publish it, and share it. You grant us and our legal successors the right to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case Your Content is something like music or video.

> This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content outside of our provision of the Service...

IANAL, but naively, Github appears to be a code hosting platform. If they need to analyze my code to make it work with Git and with their code hosting features, that makes sense. For example, they might have a feature to prevent inadvertent commits of private keys, and would need to parse my code to do so. Maybe my code contains stuff that doesn't work with their generic private-key-finding parser, and they need to specifically run a subset of my code on their platform through their parser in a debugger to fix the feature. That's a sensible license to grant to a code hosting platform, they're not a no-knowledge encrypted storage provider.

They don't appear to be a software vendor that sells code to other private parties for use in closed-source applications. Their license appears to specifically deny them the right to sell snippets of my code to others.

I suspect, however, that this isn't a black-and-white factual issue, rather, one for a court to decide. One could probably hire an attorney to argue any possible angle on the legality of Copilot. And by a similar mechanism to the "Winner's curse", the company who developed a tool like Copilot would always have been one where their internal counsel advised them that what they were doing was totally legal.

Re: Analyzing the legal implications of GitHub Copilot

#78

Post by BeefWellington »

tyingq wrote: post #3

“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,” Downing says. “So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward.” I don't know if it's really that straightforward. The TOS includes snippets like th…

An interesting thought experiment around this whole topic: If I were to take all the scripts of profitable films rated G or PG and train an AI on it, generate a bunch of scripts, then made movies out of those scripts, would I lose in court?

Tangibly, how is this AI method substantially different from non-clean-room implementations?

In terms of business use, it seems incredibly risky to me to even just *use* GitHub since their license agreement/ToS permit them to use my code to improve their tools which now apparently includes tooling where it may copy your code wholesale as someone else's suggestion.

Re: Analyzing the legal implications of GitHub Copilot

#79

Post by ghoward »

pedrocr wrote: post #31

Given this fair use argument that the work is probably transformative enough here's what I'll be doing next. I'll take the Windows and Office source code, run it through a decompiler and then train a neural network on that output. This sequence of steps should be at least as transformative of Microsoft's copyright as what Copilot is doing with the open-source corpus, probably much more so. I will then use that neural…

I am doing something very similar: https://twitter.com/GavinDHoward/status/1415380847537135620 . We'll see if they answer.

Re: Analyzing the legal implications of GitHub Copilot

#80

Post by fhajm »

This lawyer does not understand GitHub. Half of the code is uploaded by third parties who do not hold any copyright.

These people either think that for ideological reasons everything should be on GitHub or they want Google links to their companies.

Furthermore "improve their services" reasonably only applies to their core service that was present when people agreed to the TOS and not to some new code laundering AI.

It is frightening that this matter could be decided by such lawyers in the US. People should just all leave GitHub, then Microsoft can play with its own AI and enjoy the silence.

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