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

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

#111

Post by TuringTest »

albertzeyer wrote: post #91
jackdaniel wrote: post #52

Earlier quoted context omitted.

I see this argument over and over again, and it is so flawed that it is hard to bear. There is no equal sign between a person and a program. There is also that thing called "scale" that is critical to the interpretation of the action. Is eating meat fine? - maybe. Is eating all animals OK? - Hmm...

The question is not whether a person is equal to a program. The question is whether a person is doing the same as Copilot for this particular case, i.e. reading source code to learn. You have not really given any argument why this is not the case. Or maybe your reference to scale? So only because Copilot has read more code than a human possibly could, that makes it different? But why exactly is reading a bit of code…

> But why exactly is reading a bit of code fine w.r.t. copyright, but reading more code suddenly violates copyright?

In all fairness, the article mentions the Fair Use doctrine. You could make the argument that reading a bit of code is allowed, but doing it at a large scale would not be covered as an exemption to copyright.

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

#112

Post by MattPalmer1086 »

rwmj wrote: post #75
MattPalmer1086 wrote: post #43

Has anyone produced a legally watertight license or clause for other licenses that prevents code being used for training of copilot-like services?

It would be a Field of Endeavor restriction so the resulting license wouldn't be open source, and I don't think (?) Copilot is trained on proprietary code. (Section 6 here: https://opensource.org/osd )

I don't really care if a license meets some arbitrary definition.

Let's say I added a clause to my BSD license that prohibits the copying of this code to train ML models.

Would that not immediately make GitHub in violation of this license?

Or do they only train it where the license is explicitly one of the ones it knows about?

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

#113

Post by kuschku »

hnbad wrote: post #109
robinsonb5 wrote: post #51

Earlier quoted context omitted.

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…

Personally, I believe it may actually hold up in court.

That's why for my own projects, I actually made sure to get approval from all contributors when vendoring a dependency just after the ToS change: https://github.com/justjanne/QuasselDroid-ng/issues/5

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

#114

Post by mjw1007 »

I think this is the most interesting part:

> [Github's Terms of Service] specifically identifies “GitHub” to include all of its affiliates (like Microsoft) and users of GitHub grant GitHub the right to use their content to perform and improve the “Service.” Diligent product counsel will not be surprised to learn that “Service” is defined as any services provided by “GitHub,” i.e. including all of GitHub’s affiliates.

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

#115

Post by jillesvangurp »

Andrew_nenakhov wrote: post #47

A hypothetical question: imagine a filmmaker, who had studied a lot of obviously copyrighted movies by famous renowned directors. This means he has trained his neural network using their copyrighted licensed content. Does he breach copyright when he composes and films a scene? Are visual quotes copyright theft? Homages? Did George Lucas infringe copyright when he was borrowing compositions from "Triumph of the will"?

The beauty of the law is that it does not take such philosophical things into consideration. The only thing that matters is the text of the law and it's documented interpretation in various court cases. That's why copyright is excluded from this court case because there are a lot of documented interpretations of fair use. Which also apply here.

The simple layman's version of copyright is that copyright applies to a specific form of a thing and not about the ideas behind that thing.

So, no, George Lucas was not infringing anything. Nor is hip hop music making use of samples infringing anything. Or Andy Warhol integrating photos into his works. Nor is it illegal to paraphrase or refer other authors. And as Oracle found out by challenging it in court, trying to claim ownership over APIs to prevent third party implementations is also not going to work.

All of that falls under fair use. Fair use is what makes copyright useful. Without it you'd have to live in fear that legal copyright holders might come after you if you apply the ideas that you might have been exposed to via their copyrighted work. Fair use exists such that you can make use of information provided to you via a copyrighted work.

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

#116

Post by albertzeyer »

belorn wrote: post #97
albertzeyer wrote: post #95

Earlier quoted context omitted.

But effectively learning here really means the same thing: Based on the input (source code), you will adapt the synaptic weights between neurons, in a similar way for humans and for the artificial neural networks. Of course, it's not exactly the same. There are some differences in the details, and the artificial neural network is really much more simplified, and thus also less efficient at learning. But why is this r…

I can easily write an simplistic suggestion algorithm by doing the following: Hash the content. If the content has been viewed by the user in the past, halve the numerical hash value. Then sort the list. Doing this to a music list will create a list that is biased toward music the user has listened to before but will still seem random enough to look like intelligent suggestion that the system has learned to identify.…

How is this relevant to what I wrote? You are not learning with a neural network in your example. You are not adapting synaptic weights.

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

#117

Post by jackdaniel »

TuringTest wrote: post #108
jackdaniel wrote: post #78

Earlier quoted context omitted.

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 huma…

The op hypothetical assertion was that there is no difference between person and machine being 'inspired' by some creative work, so if we don't pursue George Lucas then why would we pursue copilot?

And the thing is that the machine does not benefit from the same rights as a person, so we can't absolve MS from responsibility because "it does a similar thing to what people do".

So, to add one more point to spell out: the context matters! ;)

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

#118

Post by badcppdev »

Andrew_nenakhov wrote: post #47

A hypothetical question: imagine a filmmaker, who had studied a lot of obviously copyrighted movies by famous renowned directors. This means he has trained his neural network using their copyrighted licensed content. Does he breach copyright when he composes and films a scene? Are visual quotes copyright theft? Homages? Did George Lucas infringe copyright when he was borrowing compositions from "Triumph of the will"?

I like the scenario: Imagine I've hired an assistant with an eidetic memory who has read loads of books. I pay them to help me write a book and they reproduce a few paragraphs from a different book into my book.

Am I violating copyright? Yes

Imagine they change the character names in those paragraphs. Am I still violating copyright? Yes

At some point you can change enough of the text to not violate copyright. The grey area involves the courts.

It feels very simple to me so I might be missing something.

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

#119

Post by classified »

guntars wrote: post #69
classified wrote: post #54

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?!

A human re-using some code according to its license is not the same as an automated machine snorting up all of the code on the platform ignoring any licenses.

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

#120

Post by tryre »

mjw1007 wrote: post #114

I think this is the most interesting part: > [Github's Terms of Service] specifically identifies “GitHub” to include all of its affiliates (like Microsoft) and users of GitHub grant GitHub the right to use their content to perform and improve the “Service.” Diligent product counsel will not be surprised to learn that “Service” is defined as any services provided by “GitHub,” i.e. including all of GitHub’s affiliates.

No, the misinterpretation of the ToS is not the most interesting part. The part that clearly shows her colors is:

"It looks a lot more like trolling if an otherwise incredibly useful and productivity-boosting technology is being stymied by people who want to receive payouts for a lack of meaningless attributions."

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