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GitHub is sued, and we may learn something about Creative Commons licensing

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Re: GitHub is sued, and we may learn something about Creative Commons licensing

#241

Post by speeder »

chrismorgan wrote: post #216
zozbot234 wrote: post #175

Earlier quoted context omitted.

Not "excellent" at all. This Richard Roe plaintiff is trying to use the notorious DMCA as an end-run around having to prove copyright infringement and withstand a possible fair use defense. That shouldn't be allowed, as a matter of Constitutionally-relevant protections.

But hang on, there would only be a DMCA violation if copyright infringement had in fact occurred, right? So fair use would be a perfectly legitimate defence, causing the DMCA not to apply. Look, proving copyright infringement is downright trivial here, if copyright law applies. And that shows where GitHub’s defence will—must—lie. (And for other readers unfamiliar with the parent comment’s phrasing: “end-run” is appar…

That unfortunately, is not how the DMCA works.

DMCA was designed to catch not just normal pirates that share the copied content, but also "crackers" that figure out how to share content that is protected somehow, as such it offers various ways to infringe it without infringing the copyright itself.

Basically they are accusing MS of behaving like crackers, by removing stuff from code to allow it to get shared illegally.

Re: GitHub is sued, and we may learn something about Creative Commons licensing

#242

Post by chrismorgan »

elondaits wrote: post #206
mukesh610 wrote: post #182

Earlier quoted context omitted.

IMO fair use is still not a strong argument for Microsoft. They commercialized the product and made money out of it. Fair use is only allowed if the work you're doing is purely for the greater good. I might be wrong though, IANAL.

It might be a problem to treat it as copyright. Copyright applies to reproduction, distribution, public performance... if I go to a library or bookstore and I read books and look at their covers, copyright does not apply. Would an android that walks around learning things be subject to copyright? To what extent does it need a body and mobility to be more like a person and less as a scraper? It might seem stupid, but…

Funny thing is that recreations are not necessarily covered by copyright law. The clearest example of this is fonts, where (using imprecise terminology but I think it’ll be clear enough) the US only grants copyright protection to font files, but not the shapes—so tracing a commercial font is perfectly legal, even if you happened to end up with an identical result (though good luck proving to a court that that’s what you did).

Re: GitHub is sued, and we may learn something about Creative Commons licensing

#243

Post by naasking »

jcranmer wrote: post #99
visarga wrote: post #53

Copyright covers expression, but not the ideas themselves. So it should be ok to mine ideas from projects, open or not, as long as the model doesn't reproduce expression. And even expression can be copied if it is small enough, trivial, public knowledge, the only obvious way to do something or an API call. If you want idea protection you need to look at patents.

Google couldn't get this argument to fly for software APIs-are-not-copyrightable at SCOTUS. And that was for an argument where pretty much every computer person except Oracle agreed that Google was right. Arguing that AI is mining ideas and not expressions is going to be a lot less successful when you've got a large pool of expert witnesses who are going to be able and willing to say that AI is only capable of mimick…

If Sally wrote a program that generated a giant dataset of token frequencies and associations by analyzing Github source code, that doesn't violate copyright and she could sell that.

If Bob wrote a program that took Sally's dataset and produced source code from prompts, that too would in principle not violate copyright and he could sell that.

But you're suggesting that if one person did both at once, that would violate copyright?

Re: GitHub is sued, and we may learn something about Creative Commons licensing

#244

Post by naasking »

NicoleJO wrote: post #60
ergonaught wrote: post #9

If it reaches a decision, I’m curious how it will affect “education”. If you study a hundred repos to learn how to do a thing, and then produce something of your own that happens to be similar (because that’s how you learned), are you under any particular obligations? One hopes Oracle et al are not further inspired by such an outcome.

Humans aren't machines, so it won't affect education at all. This argument is a distraction.

Humans are machines actually. Whether what Copilot does can actually qualify as "learning" vs. merely generating derivative works might actually be relevant.

Re: GitHub is sued, and we may learn something about Creative Commons licensing

#245

Post by mhitza »

dspillett wrote: post #68
jacquesm wrote: post #3

Excellent. GitHub is in my opinion crossing a whole pile of lines here that should not have been crossed without the authors explicit permission, regardless of the utility of the tool they built. Copyright is not something that can be signed over by a terms-of-use change of a hosting provider, the expectation is that your host does not automatically claim the rights to anything that you store there. Such projects sho…

> Copyright is not something that can be signed over by a terms-of-use change of a hosting provider Agreeing to GitHub's terms doesn't try to assign copyright over your code, it grabs licence to use your code however they see fit which is¹ legally quite different. Of course the real fun comes if someone agrees to their terms then uploads some of my code which they have to right to assign the licence to GitHub for. Wh…

> Agreeing to GitHub's terms doesn't try to assign copyright over your code, it grabs licence to use your code however they see fit which is¹ legally quite different.

I disagree, IANAL, and I'm happy they are getting sued. The fact that they are are foremost a code hosting/collaboration company and the terms of service we all agreed to when creating our accounts was to have them host our code, and use it however they need in order to provide the service. The fact that they changed, post agreement, the service provided (from mere hosting/collaboration to feeding it into Copilot) should be an opt-in. I hope it's tested in court what the service is, because if you have a feature that (let's say) 1% of your users use, that's not the service, is it?

Re: GitHub is sued, and we may learn something about Creative Commons licensing

#246

Post by [deleted] »

mpoteat wrote: post #228
jacquesm wrote: post #3

Excellent. GitHub is in my opinion crossing a whole pile of lines here that should not have been crossed without the authors explicit permission, regardless of the utility of the tool they built. Copyright is not something that can be signed over by a terms-of-use change of a hosting provider, the expectation is that your host does not automatically claim the rights to anything that you store there. Such projects sho…

If this lawsuit succeeds, I have a startup idea that I think would be effective. Create a for-profit copyright registry for code snippets that are long enough to qualify for copyright protection. You can be the canonical owner of the copyright for a given piece of code! For a premium fee, we can generate and submit a patent on your behalf as well. Once I have a large corpus (perhaps millions of entries of code, most…

[deleted]

Re: GitHub is sued, and we may learn something about Creative Commons licensing

#248

Post by corysama »

marginalia_nu wrote: post #217
naasking wrote: post #209

Earlier quoted context omitted.

> But it doesn't save GitHub Copilot because they're not merely training a model; they're selling access to its outputs and telling people they have "full commercial rights" to its outputs (i.e. sublicensing). But if you read the source code of 100 different projects to learn how they worked and then someone hired you to write a program that uses this knowledge, that should be legit. I'm not sure if the law currently…

That's not necessarily true at all. There's even techniques designed to demonstrably avoid such knowledge-contamination. https://en.m.wikipedia.org/wiki/Clean_room_design

That kind of legal ass-covering is expedient when you are going to explicitly reproduce someone else’s source-available work. It’s cheaper in that case to go through the whole clean room hassle than to risk getting into an intractable argument in court about how your code that does exactly the same thing as someone else’s code came to resemble the other people’s code so much.

But, for the general case, the argument still stands. I have looked at GPL code before. I might have even learned something from it. Is my brain infected? Am I required by law to license everything I ever make as GPL for the remainder of my days?

Re: GitHub is sued, and we may learn something about Creative Commons licensing

#249

Post by belorn »

tzs wrote: post #181
judge2020 wrote: post #97

Earlier quoted context omitted.

> They can't give out permissions that they themselves do not have. Then, chances are, it's technically illegal to upload those other contributors' code, although if that code is contributed via GitHub itself then the code in the pull request has already been licensed to GH. It boils down to copyright/DMCA not requiring that hosting providers ensure the code people say they have the rights to is valid at submission,…

"The person who uploaded the code lied about their permissions" won't be a valid defense in a copyright lawsuit by the actual copyright owner, at least in the case where there is no other copy of that code also on GitHub that was uploaded by the copyright holder. In the US what it will be is good evidence to support a claim by GitHub that they were an "innocent infringer"--someone who did not know they were infringin…

"someone who did not know they were infringing and had no reason to believe that they were."

Can this be said by microsoft? They explicitly chose to not include hidden repositories by their paid customers, likely because they knew that those customers would sue them if proprietary code was used as training data.

Apple seemed to have chosen not to include GPL in the app store for very similar reasons. Their term of service require a permission which is incompatible with the terms of GPL, and knowing that GPL software tend to include multiple rights owners, Apple chose to go the route of not allowing GPL.

And last, authors has requested to have their works removed from the training data. It is part of the lawsuit. Can Microsoft then still claim that they did not know they were infringing?

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