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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

#161

> 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…

Why stop there? Extrapolate that thought, keep generating more variants of the code, claim copyright, and seek rent from other people doing the same thing. To extrapolate full circle, there would be a business opportunity to generate as many variants as possible for the original author, to prevent all this from happening.

As long as we're not required to register copyright there's no reason to think the above will play out. International copyright agreements are not limited to verbatim copies only.

Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit

#162

A 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…

> big guys gang up on little guys all the time

And obnoxious individuals gum up enterprises. It's lazy to the point of dismissal to conclude based on bigness.

Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit

#163
post #102

Earlier quoted context omitted.

You might not get your ass kicked. Copyright doesn't protect function, to the point where the court will assess the degree to which the style of the code can be separated from the function. In the even that they aren't separable, the code is not copyrightable. https://www.wardandsmith.com/articles/supreme-court-announce... https://easlerlaw.com/software-computer-code-copyrighted#:~:...

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…

> US copyright does protect for "substantial similarity"

Substantial similarity refers to three different legal analyses for comparing works. In each case what the analysis is attempting to achieve is different, but in no case does it operate to prohibit similarity, per se.

The Wikipedia page points out two meanings. The first is a rule for establishing provenance. Copyright protects originality, not novelty. The difference is that if two people coincidentally create identical works, one after another, the second-in-time creator has not violated any right of the first. (Contrast with patents, which do protect novelty.) In this context, substantial similarity is a way to help establish a rebuttable presumption that the latter work is not original, but inspired by the former; it's a form of circumstantial evidence. Normally a defendant wouldn't admit outright they were knowingly inspired by another work, though they might admit this if their defense focuses on the second meaning, below. The plaintiff would also need to provide evidence of access or exposure to the earlier work to establish provenance; similarity alone isn't sufficient.

The second meaning relates to the fact that a work is composed of multiple forms and layers of expression. Not all are copyrightable, and the aggregate of copyrightable elements needs to surpass a minimum threshold of content. Substantial similarity here means a plaintiff needs to establish that there are enough copyrightable elements in common. Two works might be near identical, but not be substantially similar if they look identical merely because they're primarily composed of the same non-copyrightable expressions, regardless of provenance.

There's a third meaning, IIRC, referring to a standard for showing similarity at the pleadings stage. This often involves a superficial analysis of apparent similarity between works, but it's just a procedural rule for shutting down spurious claims as quickly as possible.

Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit

#164

Earlier quoted context omitted.

You have a much smaller lobbying budget than the AI industry, and you didn't flagrantly rush to copy billions of copyrighted works as quickly as possible and then push a narrative acting like that's the immutable status quo that must continue to be permitted lest the now-massive industry built atop copyright violation be destroyed. Violate one or two copyrights, get sued or DMCAed out of existence. Violate billions,…

What about the copyrights purpose of furthering the arts and sciences?

That ship sailed long ago. While copyright can and is used at times to protect the "little guy", the law is written as it is in order to protect and further corporate interests.

The current manifestation of copyright is about rent-seeking, not promoting innovation and creativity. That it may also do so is entirely coincidental.

Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit

#165

Earlier quoted context omitted.

What about the copyrights purpose of furthering the arts and sciences?

Copyright has utterly failed to serve that purpose for a long time, and has been actively counterproductive. But if you want to argue that copyright is counterproductive, I completely agree. That's an argument for reducing or eliminating it across the board, fairly, for everyone; it's not an argument for giving a free pass to AI training while still enforcing it on everyone else .

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Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit

#166

> 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…

Adding to the sibling comments:

First: every human is per se doing that already. We have – to handwave – a "reasonable person" bar to separate violations versus results of learning and new innovation.

Second: You can be a holder of copyright and your creations result in copyrightable artifacts. Anything generated by the program has been held as uncopyrightable.

Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit

#167
post #136

Earlier quoted context omitted.

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.

You are sorely underestimating the legal resources available to one of the most powerful companies on earth

Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit

#168
post #159

Earlier 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…

> Just because you filter out verbatim copies doesn't mean there isn't still copyright infringement/plagiarism/whatever you want to call it. Actually, it does. The production of the output is what matters here.

If you copy someone else's copyrighted work and then rearrange a few lines and rename a few things, you're probably still infringing.

Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit

#169

Earlier quoted context omitted.

> Someone is likely to design an LLM that is specifically trained to do exactly that. Perplexity AI.

> Perplexity AI. How does this describe Perplexity AI more than any other LLM?

They plagiarize and blame it on the third party service they use for web scraping

https://www.theverge.com/2024/6/27/24187405/perplexity-ai-tw...

Re: Judge dismisses DMCA copyright claim in GitHub Copilot suit

#170

A 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.

Maybe but lack of resources doesn't seem to be the main problem. A handful of devs claim copyright infringement, the Judge says show me and they can't. Maybe if they had millions of lawyers trying to get Copilot to produce their copyrighted code, their case would be stronger.
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