Live data from Hacker News

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

katedowninglaw.com

131–140 of 182 posts

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

#131
post #63

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"?

Just because machine learning uses the word “learning” doesn’t mean it “learns” in the same way a human mind does — that analogy is doing a lot of load bearing in your argument, and needs proving why the program’s nature of creative remixing (for lack of a better word) is the same as a human’s. Right now it seems like you’re just reusing the same word for two phenomena we don’t understand, and therefore claiming they…

> and needs proving why the program’s nature of creative remixing (for lack of a better word

If I ask Stable Diffusion to create a picture of Elon Musk wielding lightnings and riding a giant blue sparrow over a desert during a storm, the result would be more creative than what could be produced by most humans. I believe that counts as a proof.

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

#132
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…

> 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

That doesn't sound right. Licences can allow sublicensing, and I think all the popular open-source ones do.

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

#133
post #102

Earlier quoted context omitted.

> 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 disco…

> That could, possibly one-day provide public benefits, but it doesn't have to

The text you quote is explicit: the public benefit—promotion of science and useful arts—is the purpose. Providing benefits to creators is a mechanism for acheiving that purpose, not the purpose itself. That’s what I said before, and it remains true, and you’ve just quoted the bit of the Constitution that says it while claiming it is false.

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

#134

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"?

A difference is that I can't just spin up a copy of George Lucas on my GPU in seconds and request it to produce something from a prompt like "a disappointing prequel".

> A difference is that I can't just spin up a copy of George Lucas

... yet.

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

#135

Earlier quoted context omitted.

An interesting though experiment is how keen Microsoft would be to allow Copilot to be trained on the Office or Windows source code. If the output is truly free of copyright from its training materials then if not, why not?

Why would they do that, regardless of whether the output could be restricted via Copyright or not? Also, this case isn't about copyright, as the lawyer clearly explains.

I was more talking about the general morality issue than the specifics of the case.

Why wouldn't they? They are both large important codebases which they can do whatever they like with. If they are confident that Copilot does is akin to learning or at least something transformative then it makes perfect sense.

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

#136
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…

> 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 That doesn't sound right. Licences can allow sublicensing, and I think all the popular open-source ones do.

Sublicensing can only create additional restrictions on top of the existing conditions inside the license. All open source licenses require at minimum that distribution provides attribution and the original copyright notice. License like GPL has additional conditions.

There is also additional problems specific to sublicenses. In the United States, only exclusive licensees are assumed by statute to have a right to sublicense. The theory is that licensees of exclusive licensees are assumed to have the control/authority similar to that of the author. Nonexclusive licensees are not assumed to be granted such a monopoly by the licensor.

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

#137
post #97

Earlier quoted context omitted.

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.

{a_{j}(t+1)=f(a_{j}(t),p_{j}(t),\theta _{j}),}

The mathematics of artificial neural networks is math. It is only math. One can make it very complex or very simple but in the end it is just math and pointers.

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

#138
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…

I also wondered about this when I read the TOS.

e.g. 4. [..] You grant us [..] the right to [..] parse, and display Your Content [..] as necessary to provide the Service, This license includes [...] show it to [...] other users; parse it into a search index or otherwise analyze it

As the Service now includes copilot, publishing anything on Github seems to give them the right to use it in copilot. Maybe even for private repos

Besides of the issue we're currently discussing, I wonder also about:

5. [..] you grant each User of GitHub a [..] license to use, display, and perform Your Content through the GitHub Service and to reproduce Your Content solely on GitHub as permitted through GitHub's functionality (for example, through forking).

So if you find GPLed content on github, you might be allowed to violate the GPL as long as it happens only on github. I don't know how bad this is in practice. Their CI presumably allows you to run code for other people without granting them the rights the GPL should give them, but that might be a violation of the Github TOS as this might be abuse of the CI servers.

This might also mean you violate the GPL when publishing someone else's GPLed code on github, as you now granted Microsoft and others rights not included in the GPL.

Clearly, IANAL, don't know how valid this reading is, but publishing anything you didn't wrote yourself might not be on a very stable legal basis.

https://docs.github.com/en/site-policy/github-terms/github-t...

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

#139
post #137

Earlier quoted context omitted.

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.

{a_{j}(t+1)=f(a_{j}(t),p_{j}(t),\theta _{j}),} The mathematics of artificial neural networks is math. It is only math. One can make it very complex or very simple but in the end it is just math and pointers.

I'm not sure I understand your argument.

With math, you can just describe everything, including the human brain.

My original argument was specifically about neural networks, that I don't really see the principal difference in how a human learns from reading code, and how Copilot has learned from reading code.

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

#140
post #129

Earlier quoted context omitted.

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.

It's a good point. Having just read the terms of service, it is completely unclear that GitHub could monetise your code by training ML models on it.

They can analyse it. They say they can't sell it or distribute it outside the service. Even though this can apparently happen with copilot sometimes!

https://docs.github.com/en/site-policy/github-terms/github-t...

Post reply on HN