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An open source lawyer’s view on the copilot class action lawsuit

katedowninglaw.com

101–110 of 182 posts

Re: An open source lawyer’s view on the copilot class action lawsuit

#101

HN is so insanely frustrating, so many comments demonstrate that the user didn't read this article at all. Just immediately jumping into a "but what about this argument that I made?".

  Please don't comment on whether someone read an article. "Did you even read the article? It mentions that" can be shortened to "The article mentions that." 
https://news.ycombinator.com/newsguidelines.html

Re: An open source lawyer’s view on the copilot class action lawsuit

#102

Earlier quoted context omitted.

Wrong! At the point of creation something is granted copyright. Publishers in literature and music are right assholes who’ve created this system. Little middle men rent seeking. It does need reform but it is for the creators that’s why it’s tied to the creator and not date of publication. Fix your perspective buckaroo

> It does need reform but it is for the creators No, under the US Constitution it is for a specified public benefit as its purpose, the private benefit is a mechanism to achieve that. Under the Statute of Anne, it was nominally for creators (but this was lobbied for by printers after the expiration of earlier laws, and they were the prime beneficiaries in practice.) The earlier laws were explicitly for printers.

> No, under the US Constitution it is for a specified public benefit as its purpose, the private benefit is a mechanism to achieve that.

Well, that's false. The actual US Constitution in Article I Section 8 Clause 8 says, "[The Congress shall have power] To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

That could, possibly one-day provide public benefits, but it doesn't have to. If public benefits happen, they are side-effects. The purpose is for authors and inventors to have exclusive rights in their writings and discoveries. They are never required to publish or advance anything for the public. This is a private protection not a public benefit for a "specific purpose".

Re: An open source lawyer’s view on the copilot class action lawsuit

#103
post #69

Earlier quoted context omitted.

Copyright protection for the rich and powerful, while those who cannot afford armies of lawyers get their stuff stolen by machine learning models. Sounds credible to me.

I find Copilot most useful for filling out debug statements such as this: println(“foo at {:x} is {:?}”, &foo as *const _ as usize, foo); It almost always writes what I would have. How DARE I steal from open source contributors like that?!

Given how rust-y that looks, are you aware of `dbg!`? Debug printing + file name + line number and it does it properly to stderr

Re: An open source lawyer’s view on the copilot class action lawsuit

#105
post #31

Earlier quoted context omitted.

Github's TOS doesn't infringe on any licenses. https://docs.github.com/en/site-policy/github-terms/github-t... I'm actually surprised they allowed Copilot to happen, given this section: > This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content outside of our provision of the Service, except that as part of the right to arch…

In my memory, when GitHub released it, they were explicit that using data like this “is common practice in machine learning.” Though, I tried to find the quote and couldn’t, so maybe my memory is wrong and I am remembering a blog post from another organization. edit: The exact quote was “Training machine learning models on publicly available data is considered fair use across the machine learning community” if you wa…

Yes, I could claim that pirating music is the "standard" but it doesn't negate the fact that there are copyright laws that could land me with a fine or in jail. GitHub can claim whatever they want, but their policies and the laws surrounding them still stand.

Re: An open source lawyer’s view on the copilot class action lawsuit

#106
post #84

Earlier quoted context omitted.

It's not the license of the model, it's the license of the output. As it stands, Copilot is a black-box which strips copyright from a piece of code. I'd be fine if it were a level playing field and GitHub also trained it on private repositories - that's a signal that they don't care about copyright at all. I'd be fine as a developer who releases GPL'ed code if the output was licensed as GPL - obviously no license vio…

You could also imagine different Copilot models, eg Copilot-GPL, Copilot-MIT etc. Each would be trained only on GPL or MIT code from github. Then which model gets used depends on the license of the file being written at the time.

Attribution is an important part of most licenses, so not only would you need to track the license, but also the authors.

Re: An open source lawyer’s view on the copilot class action lawsuit

#107
A very interesting interpretation of the github TOS. Kate Downin is saying that users of github is giving a special license to GitHub, one that bypasses the original license. However if that is true then any upload of code that users do not have 100% copyright control of is then a copyright violation since the user would not have the authority to grant github that special license. It would be similar to a user uploading a copyrighted movie to youtube, and google using that as a license to use the movie in an advertisement.

I wonder if a court would think that microsoft in this case has done their due diligent to verify that the license grant that they got from users are correct and in order.

Re: An open source lawyer’s view on the copilot class action lawsuit

#108

Earlier quoted context omitted.

> Is eating meat fine? - maybe. Is eating all animals OK? - Hmm... This argument is hardly less flawed than the one you are criticizing. And you statement that 'there is no equal sign ...' is also unconvincing, as we're not equating these two, but the process of learning, which is quite similar.

I've touched two things - that's why they were put in separate paragraphs. Let me spell it out in different words: 1. People have certain rights, duties and prohibitions. Equating the right of George Lucas to use ideas he saw with rights of a machine to do that misses the point by the same measure as asserting that MS enslaves the copilot, but in the opposite direction. 2. Scale does matter. If I'm an ordinary person…

> People have certain rights, duties and prohibitions. Equating the right of George Lucas to use ideas he saw with rights of a machine to do that misses the point

Hardly relevant, given that the machine has no rights, so no one is equating those with anything. The point is that the machine is doing automated learning on behalf of the developers who are training it, so what should be decided is whether those very human people have a right to train their model in that way.

Re: An open source lawyer’s view on the copilot class action lawsuit

#109
post #19

Earlier quoted context omitted.

Consider that you can post somebody else's code to GitHub, and that may be licensed AGPL (or anything else). In that case, somebody else is the copyright holder so clearly the ToS doesn't magically give GitHub any additional rights and the licence applies. The most they could do is transfer any liability back to you for posting it in breach of some term in their ToS. But that would be absurd since posting someone els…

The ToS do give GitHub an indemnity against the consequences of that scenario - so if the actual copyright holder complains about copilot spitting out their code without proper attribution and license, they could indeed transfer to the liability to the uploader. (That scenario could apply to GPL and MIT code, too, not just AGPL.)

FWIW I find it highly unlikely that (at least in my country, Germany) a court would agree that Microsoft/GitHub could hold you liable for uploading a vendored AGPL dependency in your public GitHub repository because Copilot used your repository as part of its training corpus and someone won a lawsuit against Copilot for reproducing the AGPL code without a license.

Just because it's in the Terms of Use doesn't mean it can be upheld in court (or more specifically: in every court). If you uploaded your repository to a service advertising itself as a version control service, the service using your uploaded code to feed a commercial code generation product would likely be ruled as "surprising", which at least in Germany has been used by courts to dismiss claims of Terms of Use violations (e.g. when WhatsApp banned users for using third party apps).

Replace "AGPL" with Old Microsoft's "public source" (i.e. proprietary code published without an open source license) for a more likely scenario.

Re: An open source lawyer’s view on the copilot class action lawsuit

#110
post #79

Earlier quoted context omitted.

What do you mean? What is this definition of "learning" that would exclude machine learning?

Can a human read and learn every single line of code on github?

If an excavator is digging a trench so large that no human could dig it by hand, does that mean that what the excavator is doing can't be called digging?
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