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Judge dismisses DMCA copyright claim in GitHub Copilot suit
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Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit
#132> Indeed, last year GitHub was said to have tuned its programming assistant to generate slight variations of ingested training code to prevent its output from being accused of being an exact copy of licensed software. If I, a human, were to: 1. Carefully read and memorize some copyrighted code. 2. Produce new code that is textually identical to that. But in the process of typing it up, I randomly mechanically tweak a…
From the article:
> The most recently dismissed claims were fairly important, with one pertaining to infringement under the Digital Millennium Copyright Act (DMCA), section 1202(b), which basically says you shouldn't remove without permission crucial "copyright management" information, such as in this context who wrote the code and the terms of use, as licenses tend to dictate.
> It was argued in the class-action suit that Copilot was stripping that info out when offering code snippets from people's projects, which in their view would break 1202(b).
> The judge disagreed, however, on the grounds that the code suggested by Copilot was not identical enough to the developers' own copyright-protected work, and thus section 1202(b) did not apply. Indeed, last year GitHub was said to have tuned its programming assistant to generate slight variations of ingested training code to prevent its output from being accused of being an exact copy of licensed software.
So (not a lawyer!) this reads like the point about GitHub tuning their model is not a generic defense against any and all claims of copyright infringement, but a response to a specific claim that this violates a provision of the DMCA.
I don't know whether this is a reasonable defense or not, but your intuitions or mine about whether there is a general copyright violation or what's fair are not necessarily relevant to how the judge construes that very specific bit of legal code.
Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit
#133> Indeed, last year GitHub was said to have tuned its programming assistant to generate slight variations of ingested training code to prevent its output from being accused of being an exact copy of licensed software. If I, a human, were to: 1. Carefully read and memorize some copyrighted code. 2. Produce new code that is textually identical to that. But in the process of typing it up, I randomly mechanically tweak a…
The machine alone doesn't do anything. The user and machine together constitute a larger system, and with autocomplete, the user is charge. What's the user's intent?
I suspect that a lot of copyright violations are enabled by cut-and-paste and screenshot-taking functionality, and maybe we need to be careful with autocomplete, too? It's the user's responsibility to avoid this. We should be careful using our tools. Do users take enough care in this case? Is it possible to take enough care while still using CoPilot?
I've switched from CoPilot to Cody, but I use them the same way, to write my code. There's no particular reason to use CoPilot's output verbatim and lots of good reasons not to. By the time I've adapted it to my code base and code style and refactored it to hell and back, it's an expression of how I want to solve a problem, and I'm pretty confident claiming ownership.
Is that confidence misplaced? Are other people more careless?
Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit
#134Earlier quoted context omitted.
> How is it any different when a machine does the same thing? Because intent matters in the law. If you intended to reproduce copyrighted code verbatim but tried to hide your activity with a few tweaks, that's a very different thing from using a tool which occasionally reproduces copyrighted code by accident but clearly was not designed for that purpose, and much more often than not outputs transformative works.
Not in copyright. The work speaks for itself, and the function of code is not a copyrightable aspect.
The intent of the work can matter when determining if de minimis applies as well as fair use.
Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit
#135Earlier quoted context omitted.
US copyright does protect for "substantial similarity" [0]. And at the other end of the spectrum, this has been abused in absurd ways to argue that substantially different code has infringed. In Zenimax vs Oculus they basically argued that a bunch of really abstract yet entirely generic parts of the code were shared, we are talking some nested for loops, certain combinations of if statements, and due to a lack of a q…
> Point is, the legal system is highly selective when it comes to corporate interests. I don't even think it's that. In recent cases like Oracle v. Google and Corellium v. Apple, Fair Use prevailed with all sorts of conflicting corporate interests at play. The Zenimax v. Oculus case very much revolved around NDAs that Carmack had signed and not the propagation of trade secrets. Where IP is strictly the only thing bei…
In fact, go to far as to argue your example of Authors Guild v. Google is a good indication that most cases will probably go an AI platform's way. It's a pretty parallel case to a number of the arguments. Indexing required ingesting whole works of copyright material verbatim. It utilized that ingested data to produce a new commercial work consisting of output derived from that data. If I remember the case correctly, google even displayed snippets when matching a search so the searcher could see the match in context, reproducing the works verbatim for those snippets and one could presume (though I don't recall if it was coded against), that with sufficiently clever search prompts, someone could get the index search to reproduce a substantial portion of a work.
Arguably, the AI platforms have an even stronger case as their nominal goal is not to have their systems reproduce any part of the works verbatim.
Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit
#136A slight aside, but this is the subtitle: > A few devs versus the powerful forces of Redmond – who did you think was going to win? I hate that kind of obnoxious "journalism". Sometimes the little guy is actually wrong. To clarify, I'm not commenting on the specifics of this case, I just hate how fake our online discourse has been by appealing to "big guy evil" before even bringing up the specifics of the case.
I think you're misinterpreting the sentence. I think it merely implies MS has more resources to throw at the legal case.
I don't think that's something you can take away from the little-guy big-guy narrative. Class actions are funded by courts awarding lawyers huge payouts if they win, not directly by the plaintiffs. There should be plenty of resources on both sides of this fight.
Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit
#137Earlier quoted context omitted.
The guy who owns the machine is really rich, while you are more or less (all due respect of course) not worth suing. That’s why I think the opposite of what you claim is true: if you were to do this, absolutely nothing would happen. When they do it, they will get sued over and over until the law changes and they can’t be sued, or they enter some mutually-beneficial relationship with the parties who keep suing.
> if you were to do this, absolutely nothing would happen Read up on the DMCA and the impact it has on e.g. nintendo emulators and the developers thereof
I enjoy how you removed the “I think” qualifier which suggested that it’s very possible that you’re right.
I’m quite well read on the DMCA but admit you probably know far more about how Nintendo wields it.
Still, I suggest that it’s a lot more likely that GitHub is going to get sued than you or GP.
Finally, I believe using the legal system to bully independent software developers is, in legal terms, super lame. We are probably in the same side here.
Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit
#138A slight aside, but this is the subtitle: > A few devs versus the powerful forces of Redmond – who did you think was going to win? I hate that kind of obnoxious "journalism". Sometimes the little guy is actually wrong. To clarify, I'm not commenting on the specifics of this case, I just hate how fake our online discourse has been by appealing to "big guy evil" before even bringing up the specifics of the case.
> Sometimes the little guy is actually wrong. He is, sometimes. Also sometimes, the moon passes exactly between the sun and Earth, a new star appears in the sky, the magnetic field of our planet reverses, a proton decays (jury is still out on that one, actually). Etc. Tools like Copilot are plagiarism machines. We know the data they're being trained on, and a conclusion of "that's plagiarism" is not - or anyway shoul…
One would think if these were "plagiarism machines", that one of the plaintiffs would have been able to produce even a single instance of the copying they alleged.
Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit
#139> The anonymous programmers have repeatedly insisted Copilot could, and would, generate code identical to what they had written themselves, which is a key pillar of their lawsuit since there is an identicality requirement for their DMCA claim. However, Judge Tigar earlier ruled the plaintiffs hadn't actually demonstrated instances of this happening, which prompted a dismissal of the claim with a chance to amend it. I…
Where it gets ethnically dubious is that: 1. The copilot team rushed to slap a copyright filter on top to keep these verbatim examples from showing up, and now claims they never happen. 2. LLMs are prone to paraphrasing. Just because you filter out verbatim copies doesn't mean there isn't still copyright infringement/plagiarism/whatever you want to call it. The copyright filter is only a legal protection, not a pract…
> The copilot team rushed to slap a copyright filter on top to keep these verbatim examples from showing up, and now claims they never happen.
Well if the copyright filter is working they indeed aren't happening. Putting in safe gaurds to prevent something from happening doesn't mean you're guilty of it. Putting a railing on a balcony doesn't imply the balcony with railing is unsafe.
> LLMs are prone to paraphrasing. Just because you filter out verbatim copies doesn't mean there isn't still copyright infringement/plagiarism/whatever you want to call it
Copyright infringement and plagerism are different things. Stuff can be copyright infringement without being plagerized, and can be plagerized without being copyright infringement. The two concepts are similar but should not be conflated, especially in a legal context.
Courts decide based on laws, not on gut feeling about what is "fair".
> They clearly know the problem is real
They know the risk is real. That is not the same thing as saying that they actually comitted copyright infringement.
A risk of something happening is not the same as actually doing the thing.
> "Ner ner ner ner ner, you can't prove it to a boomer judge".
Its always a cop-out to assume that they lost the argument because the judge didn't understand. I suspect the judge understood just fine but the law and the evidence simply wasn't on their side.
Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit
#140Earlier quoted context omitted.
Where it gets ethnically dubious is that: 1. The copilot team rushed to slap a copyright filter on top to keep these verbatim examples from showing up, and now claims they never happen. 2. LLMs are prone to paraphrasing. Just because you filter out verbatim copies doesn't mean there isn't still copyright infringement/plagiarism/whatever you want to call it. The copyright filter is only a legal protection, not a pract…
> 1. Isn't that akin to destruction of evidence?
No more so than scanner/printer manufacturers adding tech to prevent you from scanning and printing currency is destruction of evidence that they are in fact producing illegal machines for counterfeiting.