GitHub is sued, and we may learn something about Creative Commons licensing • Hacker News Board

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

#311

Post by elil17 » Fri, Jan 06, 2023, 6:36 PM UTC

pantalaimon wrote: post #138

elil17 wrote: post #87

Earlier quoted context omitted.

>And even expression can be copied if it is small enough This is what I would argue if I was Microsoft's lawyer. You can't win a copyright lawsuit over one bar of music, one dance move, or a few words. Similarly, copilot can't be considered to be infringing on anyone's copyright because the snippets it might copy verbatim are too short to be copyrightable.

> You can't win a copyright lawsuit over one bar of music Actually, Kraftwerk did https://www.factmag.com/2019/07/30/kraftwerk-sample-lawsuit-...

In Europe - not where this lawsuit is happening

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

#312

Post by judge2020 » Fri, Jan 06, 2023, 6:37 PM UTC

smoldesu wrote: post #176

judge2020 wrote: post #92

Earlier quoted context omitted.

Technically the GitHub TOS is in itself a license; much like how you can dual-license code, uploading to GitHub is its own license grant separate from the license of the code you're granting to anyone who wants to use it for their own purposes. LICENSE.txt/md is not the only way to grant access to code you write.

GitHub is still subject to the terms of your license though; they can impose whatever rules they want on you service-wise, but their use of your software should be dictated by the accompanying LICENSE file. To illustrate: GitHub could delete any project they want, and there would be no real recourse for the project's author. That is a service decision that they reserve the right to impose via their TOS. However, if t…

> GitHub is still subject to the terms of your license though; they can impose whatever rules they want on you service-wise, but their use of your software should be dictated by the accompanying LICENSE file.

Again, the LICENSE file in the repo is not the only license for that code. A copyright holder can grant people licenses to their work with or without documentation and with or without that license being accompanied within their work itself.

By uploading code to GitHub, you are asserting that you can legally grant GitHub a license to that code for hosting as described below.

> If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post; that you will only submit Content that you have the right to post; and that you will fully comply with any third party licenses relating to Content you post.

Note that this is literally only limited to the provisions set below; uploading to GH doesn't allow them to import or use your code in Windows or the Github codebase or anything like that, doing so would indeed be bound by the license terms you've granted the world via the repo's LICENSE file.

> 4. License Grant to Us 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.

https://docs.github.com/en/site-policy/github-terms/github-t...

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

#313

Post by elil17 » Fri, Jan 06, 2023, 6:40 PM UTC

jcranmer wrote: post #117

elil17 wrote: post #87

Earlier quoted context omitted.

>And even expression can be copied if it is small enough This is what I would argue if I was Microsoft's lawyer. You can't win a copyright lawsuit over one bar of music, one dance move, or a few words. Similarly, copilot can't be considered to be infringing on anyone's copyright because the snippets it might copy verbatim are too short to be copyrightable.

> You can't win a copyright lawsuit over one bar of music, one dance move, or a few words. Actually... The smallest successful copyright claim is I believe over 10 words or so.

Yes, this case: https://fkks.com/news/can-borrowing-ten-words-be-copyright-i...

However, this definitely pushed the boundaries of copyright law. Audi never appealed the $1m verdict, so it's hardly settled case law.

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

#314

Post by rockemsockem » Fri, Jan 06, 2023, 6:41 PM UTC

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…

Wait, what do you mean Google couldn't get that argument to fly? Google won the case. Are you referring to the fact that the SCOTUS didn't directly address the copyrightability of APIs and instead ruled in favor of Google on the basis that Google's use was fair use *even if* APIs are copyrightable?

https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_....

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

#315

Post by judge2020 » Fri, Jan 06, 2023, 6:41 PM UTC

yladiz wrote: post #160

judge2020 wrote: post #92

Earlier quoted context omitted.

Technically the GitHub TOS is in itself a license; much like how you can dual-license code, uploading to GitHub is its own license grant separate from the license of the code you're granting to anyone who wants to use it for their own purposes. LICENSE.txt/md is not the only way to grant access to code you write.

I’m skeptical of this interpretation since it seems to imply that you could upload copyrighted code and now GitHub has a license to do whatever they want with the code, which is obviously not true. An example would be someone uploading Microsoft Windows source code illegally, and GitHub can’t just use it because it was uploaded to their service. I would argue that this then extends to CoPilot, in that just because th…

The license is quite limited, but does include "improving the service over time" which might be their key to CoPilot being okayed by their legal team, at least originally:

> 4. License Grant to Us 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.

https://docs.github.com/en/site-policy/github-terms/github-t...

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

#316

Post by bastardoperator » Fri, Jan 06, 2023, 6:44 PM UTC

mhitza wrote: post #245

dspillett wrote: post #68

Earlier quoted context omitted.

> 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…

The service is displaying code... also I'm unaware of any TOS/EULA that cannot be amended or changed post agreement.

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

#317

Post by judge2020 » Fri, Jan 06, 2023, 6:45 PM UTC

toast0 wrote: post #294

judge2020 wrote: post #103

Earlier quoted context omitted.

It seems a lot of this stems from how the DMCA does not require that these hosting providers actually check for code ownership at submission, or maybe just how they don't have an explicit checkbox for "I affirm that I can license this code to GitHub" every time someone is uploading code. If it is shown that the license in the TOS is valid, the legal question might boil down to "is the TOS License broad enough to wher…

> how the DMCA does not require that these hosting providers actually check for code ownership at submission How does one check who owns a work if the work does not include the authorship information? (or if the work has been altered to have incorrect authorship information)

That's the tough part, and the technological infeasibility is probably why the DMCA has no such provision. Even for Video, only YouTube has come up with a system that is "mostly right" for "most content" they have to deal with, that being Content ID, and it takes a lot of horsepower and a lot of money to run (and it requires that every rights holder must upload their content to the service for scanning; quite a feat).

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

#318

Post by judge2020 » Fri, Jan 06, 2023, 6:48 PM UTC

EamonnMR wrote: post #264

throwaway4aday wrote: post #210

Earlier quoted context omitted.

Whenever I've used Copilot it never seems to copy whole sections of code. Can you provide examples of this? From what I've seen it is producing fairly generic boilerplate that has been modified based on the rest of the code in my repo so that it works with the other functions and even incorporates other pieces of my code in the same style that I'm using. The boilerplate aspect makes sense because this would be the mo…

Behold: https://twitter.com/StefanKarpinski/status/14109710611816816... Probably helps that this is from a codebase that's been forked quite a bit.

You can't even code search in forked repos so maybe forks were excluded (besides commits on top of the fork)?

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

#319

Post by belorn » Fri, Jan 06, 2023, 6:49 PM UTC

tzs wrote: post #298

belorn wrote: post #249

Earlier quoted context omitted.

"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 se…

The comment I was responding to was about the case where person X uploads code to GitHub, and that code contains code from person Y whose license to X does not give X permission to grant GitHub the rights that GitHub requires from the uploader, and so GitHub's use of Y's code is without copyright permission. I believe GitHub would likely be seen as an innocent infringer in that case.

Would that still be the case if Microsoft know that such infringement is likely to occur? Microsoft has been in the software industry for 50 years, has like Apple a app-store and has distributed software from millions of different rights owners. Can they with good faith argue that they had no idea that software often has multiple rights owner and thus a single person who upload software to github is unlikely to have sole copyright ownership.

I doubt Microsoft would make that argument. It is more likely they will argue fair use, but by not using closed repositories owned by paying customers, it seems to show that they themselves have doubt about the legal status of using other peoples copyrighted work for copilot.

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

#320

Post by gnramires » Fri, Jan 06, 2023, 6:50 PM UTC

kmeisthax wrote: post #234

gnramires wrote: post #202

Earlier quoted context omitted.

> I still think "training is fair use" still has a leg to stand on, though If that's the case, we need to serious re-consider how we reward Open Source as a society (I think that would be fantastic anyway!) -- we have people producing knowledge and others profiting directly from this material, producing new content and new code that's incompatible with the original license. You make GPL code, a make an AI that learns…

> You make GPL code, a make an AI that learns from GPL code, shouldn't its output be GPL licensed as well? If the output (not just the model) can be determined to be a derivative work of the input, or the model is overfit and regurgitating training set data, then yes. It should. And a court would make the same demands, because fair use is intransitive - you cannot reach through a fair use to make an un fair use. So e…

It would be an essential feature, imo, to have this 'near-verbatim check' for copyleft code.

Overall it feels like it's a bit too much of specialized learning on GPL/Copyleft code to be fair. It's not like a human that reads some source code and gets an idea how it works. It's really learning code from scratch on Copyleft code, without which it would likely perform much worse and not generate a number of examples. It's not just copy-paste, but it's closer on the spectrum to copy paste than just super-abstract inspiration to feel fair.

As others have said, I don't think it would be fine (specially from big companies pov.) to decompile proprietary code (or just grab publicly available but illegal to reproduce code) and have AIs learn from that in a way that seems different in scope and ability to human research and reverse engineering.

I think we need a good tradeoff that isn't ludditism (that would reject a benefit for us all, i.e. that is good for everyone), but that still promotes and maintains open source software. In this case it's really a public "good" that's being seized and commercialized, that doesn't seem quite right: make copilot public, or use only permitted code (or share your revenue with developers -- although that would seem more complicated and up to each copyright holder to re-license for this usage). I remember not long ago MS declaring Open Source was a kind of "Cancer", now they're relying on it to sell their programming AIs. I personally think Open Source is quite the opposite of cancer, it is usually an unmitigated social good.

Much of the same could be said for the case of artists an generative AI art.

And this isn't even starting on how we move forward as a society that has highly automated most jobs and needs to distribute the resources and wealth in a good way to enable greatest wellbeing for all beings.