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Analyzing the legal implications of GitHub Copilot

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Re: Analyzing the legal implications of GitHub Copilot

#101

Post by 6gvONxR4sf7o »

Regardless of whether it's fair use, copilot wouldn't be possible without the enormous amount of person-hours of work that has gone into writing the code it was trained on. There should be some kind of compensation for the content creators when their work is used to train models. The fair use argument is that "I could see it" is enough to justify no compensation and no say in how their work is used.

Legal? Probably. Should we do better? Probably.

At the very least, it should be opt-in. We'll probably need new IP law to make this kind of thing opt-in.

Re: Analyzing the legal implications of GitHub Copilot

#102

Post by rented_mule »

bigwavedave wrote: post #73
lindenksv85 wrote: post #51

Earlier quoted context omitted.

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…

Also not a lawyer, but I've been around ML for a while. The question makes perfect sense to me!

It takes some amount of time to comply with a takedown notice. For example, time passes between receiving Alice's notice and taking down Bob's repo.

I would expect Copilot's model(s) to be retrained periodically in order to remain relevant. The next retraining could exclude Alice's code. That might be a longer window than the case of the repo takedown, but as long as it doesn't take too long they might be okay?

There are incremental training approaches that evolve models over time rather than completely retraining them. In my experience, complete retraining is a far more common approach because the highly path dependent nature of incremental training can lead to outcomes that are hard to manage. For example, what if you discover bad training data like repos that collect anti-patterns? Or Alice's takedown notice? You typically want your models to be able to "unsee" things and that's hard with purely incremental training. Even when incremental approaches are used, there is often an occasional complete retraining to overcome such issues.

To be clear, I have no idea what training approach is used for Copilot.

Re: Analyzing the legal implications of GitHub Copilot

#103

Post by [deleted] »

btilly wrote: post #89
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…

I don't know if it's really that straightforward. It gets worse. To the extent that it is that straightforward, the correct takeaway is that you do not have permission to include someone else's GPLed code in your Github repository. And that to the extent that GitHub relies on that permission in using the code that they host, they are liable for potential copyright claims from copyright owners that they have no relati…

[deleted]

Re: Analyzing the legal implications of GitHub Copilot

#104

Post by CuriousCosmic »

lindenksv85 wrote: post #32
sudosysgen wrote: post #27

Earlier quoted context omitted.

But legally, they can't provide such a license. So GitHub can't have that license, surely, because they never had the legal authority to bestow it upon Github.

That was a problem before copilot though. And copyright holders have and will continue to have the right to send DMCA take-down notices if they like.

But the thing to note is that a user can have a right to distribute (as with GPL) but does not necessarily have the rights to the license.

So if the user uploads the source to GitHub, they agree to the terms (which they may not actually have the rights to) but that isn't equivalent to the rights owner giving GitHub the rights to distribute the source under a different license.

The TOS can only modify those distribution terms (if it even can be found to be legally binding) if the user uploading the source is the rights owner which in so many cases is not the case.

Re: Analyzing the legal implications of GitHub Copilot

#105

Post by tompazourek »

heavyset_go wrote: post #71
tompazourek wrote: post #65

Earlier quoted context omitted.

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.

If someone is rehosting code that they don't have copyright to, it's like if someone would upload a pirated movie to YouTube.

YouTube will still make money from it for some time (selling ads, luring customers in, ...), then the copyright holder asks YouTube to take it down, and then they take it down.

The difference is that open source authors don't care that much about that. But maybe now they will when they see what GitHub is doing...

Re: Analyzing the legal implications of GitHub Copilot

#106

Post by [deleted] »

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…

[deleted]

Re: Analyzing the legal implications of GitHub Copilot

#107

Post by michaelpb »

heavyset_go wrote: post #75
kbenson wrote: post #12

Earlier quoted context omitted.

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.

The biggest mistake of the ML field is its metaphorical naming. So many people seem to be taking Artificial Intelligence, Machine Learning, Neural Networks etc literally. They don't do this for other concepts in coding (eg for an absurd example, no one is arguing we ride a CPU "bus" to work), but with ML algos its a free-for-all. Grandiose naming conventions might be good for extracting VC money but it's also seriously confusing people.

Re: Analyzing the legal implications of GitHub Copilot

#108

Post by heavyset_go »

tompazourek wrote: post #105
heavyset_go wrote: post #71

Earlier quoted context omitted.

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.

If someone is rehosting code that they don't have copyright to, it's like if someone would upload a pirated movie to YouTube. YouTube will still make money from it for some time (selling ads, luring customers in, ...), then the copyright holder asks YouTube to take it down, and then they take it down. The difference is that open source authors don't care that much about that. But maybe now they will when they see wha…

> YouTube will still make money from it for some time (selling ads, luring customers in, ...), then the copyright holder asks YouTube to take it down, and then they take it down.

YouTube isn't publishing derivative work from the videos it hosts, though, like Microsoft is doing with Copilot and GitHub.

If Copilot was trained on material it doesn't have the license to, it can potentially output that unlicensed code it was trained on, like in this example[1].

Copilot could serve up copyrighted work in the same way YouTube does, but the analogy isn't complete, because YouTube itself isn't a derivative work in the same way the Copilot's model is a derivative of the data it was trained on.

[1] https://twitter.com/mitsuhiko/status/1410886329924194309

Re: Analyzing the legal implications of GitHub Copilot

#109

Post by jolmg »

lindenksv85 wrote: post #20
kzrdude wrote: post #8

Earlier quoted context omitted.

What about open source projects where the uploader and github users are not the only copyright holders? As a user i can't grant github any random license for the code, if I maintain for example Linux or python or any other old project there. The ONLY available terms are those given by the license, surely?

If you are putting up code on GitHub to which you don’t have all the rights you’re actually in violation of their TOS and you are violating the rights of other copyright holders. I understand this is common and may not violate community norms or expectations but it is technically a license violation on multiple fronts. Contributors who add to existing GitHub projects are providing the same license to GitHub as the pr…

> If you are putting up code on GitHub to which you don’t have all the rights you’re actually in violation of their TOS and you are violating the rights of other copyright holders.

I can't find where in the TOS it says that you must "have all the rights [to the code]". It just says that you must not violate copyright nor other laws.[1] FOSS licenses by definition permit redistribution, so uploading to GitHub seems to be in-line with the license granted by the copyright holders.

What are the violations you mention?

> Contributors who add to existing GitHub projects are providing the same license to GitHub as the project maintainer though per the TOS.

Sure, but that's not the only way. If you contribute to a FOSS project elsewhere, those changes go under the same license of the project. Whoever you pass those changes to has liberty to redistribute per the terms of the license. The TOS is unneeded to legally redistribute FOSS-licensed projects with GitHub.

The TOS saying that you must grant GitHub these permissions is only to protect GitHub in cases where people upload projects without licenses.

[1] in addition to content restrictions, like no porn.

Re: Analyzing the legal implications of GitHub Copilot

#110

Post by nomoreplease »

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…

And "and to use your code to improve their products and features,” does not explicitly include "or to create new products and features".

CoPilot is a NEW product, not an existing product (Github itself) that the ToS gives permission to improve.

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