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

katedowninglaw.com

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

#121

Post by MattPalmer1086 »

insanitybit wrote: post #94
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?

The article addresses this in a number of ways. For example, > That rings a bit like the Facebook memes of yesteryear promising users that if they just copy and paste these magical sentences onto their timelines, then Facebook won’t be able to do something or other with their data or accounts.

I'm not sure I understand your point.

The only legal way you can use copyrighted code is due to the license attached to it by the copyright holder.

If a license specifically prohibits copying the code for a purpose, then it is a violation of the copyright to copy the code for that purpose. You have no other legal way to do it.

These aren't magic words, they are legal obligations. Ok, well maybe legal obligations are magic words. But it is magic that works :). Otherwise things like GPL could not function.

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

#122

Post by dathinab »

belorn wrote: post #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 upload…

It also falls under the aspect of "hidden surprises" which could mean that this part of the TOS wrt. this specific aspect might not be legally binding/valid. At least in the EU. Or it might.

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

#123

Post by throwaway290 »

NavinF wrote: post #53
throwaway290 wrote: post #28

Earlier quoted context omitted.

Excellent, let's see how your client critiques and improves on a song, an artwork or some source code suggested by Copilot. (By the way, do you have an objection to my point? I must have missed it.)

You didn't make a point. Training generative models on their own output after filtering for quality is a well known technique for improving image quality for a single mode. This can happen automatically when generated images become popular on the internet. "Excellent, let's see how your car goes faster when you push the gas pedal"

If you are saying that hypothetical client knows a better song/artwork/code from worse, boy are you in for disappointment...

My point was that insane amounts of curated fully original works were required to get the output of these generative tools to the "occasionally impressive" level it is at now, and those original works exist precisely thanks to copyright. To say "oh we don't need copyright now" is to saw off the branch on which this hinges.

If you are into this stuff and want to see it become better you should rather promote copyright and differentiation of fully original works.

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

#124

Post by rwmj »

TuringTest wrote: post #110
rwmj wrote: post #79

Earlier quoted context omitted.

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?

We can see that the way a human digs and the way an excavator digs are similar, except for the matter of scale. We don't know if the way humans study code is the same way that Copilot learns. Learning methods aside, humans do seem to be far more sophisticated about the ways they use code (understanding subtleties of copyright, attribution and so on) compared to Copilot.

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

#125

Post by dathinab »

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"?

If him "composing a scene" means copy pasting clips of the movies he studied and smooth things over, then yes that would be obvious infringement.

And that is what copoilots AI mostly does.

It doesn't "understand the concepts and reproduce something alike" in the sense a human does. It might understand some concepts here and there but it also does a lot of heavy lifting my verbatim "remembering" (i.e. copy pasting) code.

This is also why some people argue that the cases for copilot and some of the image generation networks are different as some of the image generation networks get much closer to "understanding and reproducing a style". (Through potentially just by it being much easier to blend over copy-pasted snippets in images to a point its unrecognizable.)

One of the main problems GitHub has IMHO is that anyone who has studied such generative methods knows that:

1) they are prone to copy-pasting

2) you don't know what they remembered (i.e. stored copies of in a obscure human unreadable encoding, i.e. just distributing such a network can be a copyright infrigement)

3) you don't know when they copy past

4) the copy pasted code often is a bit obscured, ironically (and coincidentally) often comparable with how someone who knowingly commits copyright theft would obscure the code to avoid automated detection

Which means GitHub knowingly accepted and continued with tricking its copilote users into committing copyright infringement under the assumption that such infringement is most times obscured enough to evade automatic detection....

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

#126

Post by muraiki »

hfglanx wrote: post #104

Quoted post unavailable.

Or it could be that she is experienced with both software and law, and that her assessment is different than yours.

> Kate’s passion for open source began in law school, under the tutelage of Eben Moglen, long-time attorney for the Free Software Foundation, founder of the Software Freedom Law Center, and author of the GPL 3. She interned at the Electronic Frontier Foundation and helped write the first complaint against the NSA for warrantless wiretapping.

> At VMware and ServiceNow, she dedicated her time to designing, building, and testing internal compliance tools in collaboration with their respective internal tools teams. She is no stranger to writing specs, creating wireframes, and massive amounts of QA. So much so, that Kate and her husband, Steve Downing, co-founded Critterdom LLC, a software company whose Open Sorcerer product substantially cuts down the time it takes to manually review source code for licenses and create a customer-facing disclosure of that source code.

https://katedowninglaw.com/about/

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

#127

Post by albertzeyer »

TuringTest wrote: post #111
albertzeyer wrote: post #91

Earlier quoted context omitted.

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.

But where is the limit then?

Counting all the code I have read in my life, it's also quite a lot.

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

#128

Post by ISL »

visarga wrote: post #80
david_allison wrote: post #68

Earlier quoted context omitted.

I have ~400KLOC changed on GitHub. 1% of the time happens multiple times a day given scale. Pragmatically, people are already knowingly committing commercially viable copyright violations of my work. I'd rather it wasn't encouraged further by a US-based 'big tech', especially if the people using my code aren't aware that they're doing anything questionable. Some months, I earn over 100x less from OSS than I would in…

It's the wild west phase, after it settles down there will probably be ways to signal you don't want to allow training on your code. But I think it's just like taking your grain of sand from the beach so nobody else can have it. The beach is going to be just the same.

As part of the wild-west phase, it is possible that the inclusion of a single identifiable AGPL project in the training set leads to the licensing of Copilot as AGPL. Such an outcome might lead hastily to the future you imagine.

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

#129

Post by ISL »

MattPalmer1086 wrote: post #121
insanitybit wrote: post #94

Earlier quoted context omitted.

The article addresses this in a number of ways. For example, > That rings a bit like the Facebook memes of yesteryear promising users that if they just copy and paste these magical sentences onto their timelines, then Facebook won’t be able to do something or other with their data or accounts.

I'm not sure I understand your point. The only legal way you can use copyrighted code is due to the license attached to it by the copyright holder. If a license specifically prohibits copying the code for a purpose, then it is a violation of the copyright to copy the code for that purpose. You have no other legal way to do it. These aren't magic words, they are legal obligations. Ok, well maybe legal obligations are…

The (insightful) point is that if the copyright holder is the one who uploads something to GitHub, that person has also agreed to the ToS. That was something I hadn't considered before reading the article.

That line of argument might defang any claims I might have against Copilot, as I have personally uploaded much of my public open-source code to GitHub.

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