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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

#151

Post by rlpb »

robinsonb5 wrote: post #51
rlpb wrote: 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.)

> ...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.

The defence would probably claim that GitHub effectively invite users to post AGPL code (this being a pretty fundamental part of their business model), including when they don't hold the copyright, so it is implied that the ToS indemnity cannot be interpreted to include this situation. If GitHub tried to claim otherwise, they'd have to contradict themselves and courts usually find that kind of thing unacceptable.

The indemnity would stand for other cases of course, such as users posting code without permission of a license.

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

#152

Post by belorn »

albertzeyer wrote: post #139
belorn wrote: post #137

Earlier quoted context omitted.

{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.

The science to understand and map the human brain has come quite far, but we have yet to make a functional mathematical model where one can input a bunch of number and then compute what a human person is thinking. People have theorized and written novel about the idea of uploading the human mind into the computer for several decades now, but we are unlikely to even reached 1% of the road to get there. Among technology philosophers it is still highly debated if we will ever get there.

Right now it is impossible to accurate describe the human brain in the form of math. What we can do is write simplified models that either describe or mimics behavior for which, if we apply abstractions, we can call predictive models. Their effectiveness are quite poor but that has never stopped people from trying to use poor predictions models to predict the future.

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

#153

Post by 1MachineElf »

tryre wrote: post #120
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."

Ah, so she is an "open source lawyer" in an OSI Foundation sense...

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

#154

Post by belorn »

hyperman1 wrote: post #138
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…

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 priva…

> 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.

Yes. This was one of the legal theories behind why Apple refuse to allow GPL in the Mac App Store. The TOS that apple required from developers givens Apple specific rights which the GPL do not grant, and thus any software that get uploaded must be assumed as providing the software under two separate licenses. Given that many free and open source projects has multiple authors, it is a rather large assumption that the person who uploads the software has the complete authority to provide the software under multiple conflicting licenses.

It is after all the distributor that has to do the due diligence to confirm that they are in the right to distribute.

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

#155

Post by albertzeyer »

belorn wrote: post #152
albertzeyer wrote: post #139

Earlier quoted context omitted.

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.

The science to understand and map the human brain has come quite far, but we have yet to make a functional mathematical model where one can input a bunch of number and then compute what a human person is thinking. People have theorized and written novel about the idea of uploading the human mind into the computer for several decades now, but we are unlikely to even reached 1% of the road to get there. Among technolog…

Yes but how is that relevant to my arguments?

My statement on human brain was: In principle, you can describe it with math. This doesn't mean that we know how to do that yet.

My statement on Copilot was: Comparing learning of the human brain to learning of the artificial neural network, both are still very similar, much more similar to other (machine or other) learning methods. Sure, there are differences. But my point is: Those differences, why are they relevant for the copyright question?

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

#156

Post by TuringTest »

rwmj wrote: post #124
TuringTest wrote: post #110

Earlier quoted context omitted.

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.

> We don't know if the way humans study code is the same way that Copilot learns.

It may well be so. I was arguing with respect to your previous post, in which you stated as a relevant difference merely the size of the job.

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

#157

Post by throwaway290 »

albertzeyer wrote: post #155
belorn wrote: post #152

Earlier quoted context omitted.

The science to understand and map the human brain has come quite far, but we have yet to make a functional mathematical model where one can input a bunch of number and then compute what a human person is thinking. People have theorized and written novel about the idea of uploading the human mind into the computer for several decades now, but we are unlikely to even reached 1% of the road to get there. Among technolog…

Yes but how is that relevant to my arguments? My statement on human brain was: In principle, you can describe it with math. This doesn't mean that we know how to do that yet. My statement on Copilot was: Comparing learning of the human brain to learning of the artificial neural network, both are still very similar, much more similar to other (machine or other) learning methods. Sure, there are differences. But my poi…

Since you equate human mind with a neural network (questionable to me but OK), let's swap this around and call them both minds and see how it works out:

The mind that can acknowledge and appreciate your work in this scenario (Copilot) does literally nothing of its own free will except 1) take your code and 2) give it to me, possibly combined with someone else's code. This is the sole purpose of its entire existence and full range of its capabilities. Is this enough of a difference compared to a human mind when copyright is concerned?

It spares me from knowing that you exists, that you wrote a library that does this thing I need, that I can contribute to it, etc. In such a scenario, what is the motivation for you to make your library publicly available in the first place (other than generate revenue for Microsoft or whoever I pay for access to the network)? Does copyright have relevance to OSS now?

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

#158

Post by IshKebab »

VBprogrammer wrote: post #40
steve_gh wrote: post #10

Hmmm. I'm interested in the GitHub ToS, which (if I understand correctly) basically says that GitHub and it's affiliates (MS) can use anything you post on GitHub to improve their service. What if I build an AGPL licenced service, using GitHub to coordinate development. According to the ToS MS could offer a version my service because I posted the code on GitHub, and they are using it to improve their service to me. Ac…

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?

The output isn't guaranteed to be free of copyright from its training materials. It just usually is. There have been clear demonstrations of it regurgitating code from the training set verbatim, which would of course still be covered by the original license.

Microsoft isn't going to train Copilot on Windows code for the same reason it didn't train it on private repos: the code is private and they don't want to risk leaking private code.

I imagine there would be no problem training it on e.g. the Unreal Engine code which is not open source but is available to read.

The big practical issue is that there's no warning when Copilot produces code that might violate copyright, so you're taking a bit of a risk if you use it to generate huge chunks of code as-is. I imagine they are working on a solution to that though. It's not difficult conceptually.

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

#159

Post by dragonwriter »

hooby wrote: post #148
dragonwriter wrote: post #26

Earlier quoted context omitted.

> Copyright was originally intended to protect the creators of a work. No, it wasn’t. Copyright was originally intended to protect the publishers of a work. It was later transformed to nominally focus on the creators, but even this was lobbied for by publishers in their own self-interest after the old law directly protecting them was allowed to lapse, and because it still had the same net effect since realizing value…

> Copyright was originally intended to protect the publishers of a work. You are talking about modern US copyright law. But copyright laws (laws around copy) predate the existence of publishers and the declaration of independence of the United States by over a 1000 years.

> You are talking about modern US copyright law.

No, I’m talking mostly about British copyright law prior to the nominal prioritization of creators in the Statute of Anne (1710).

(Techhically, it was focussed on printers rather than publishers, but the separation of function of those is a more modern arrangement.)

You can tell the part you target isn't about modern US copyright law because I later in the same post distinguish all US copyright law under the Constitution (which includes modern US copyright law) from it.

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

#160

Post by lindenksv1 »

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…

Kate Downing here. This is an excellent question. So, just like YouTube, GitHub would likely argue that they are protected by the DMCA and that so long as they comply with DMCA take-down requests, they are not liable for copyright infringement (direct or indirect) for third party content posted to GitHub by people other than the copyright owners. Remember that the DMCA effectively shifts that due diligence you speak of away from providers of online services and onto copyright holders themselves. Without the DMCA, many businesses that rely on user-generated content just wouldn't exist because that due diligence isn't possible at scale - it's often not even possible for individual pieces of content because the publication of any copyrighted work can be very obscure and because in the US you can hold a copyright without formally registering it.

In practice, I think the entire open source world knows that people post each other's open source code on GitHub. Even projects that have very purposefully chosen to primarily use other services or self-host their source code are well aware that their code gets mirrored on GitHub and/or included in other people's repos on GitHub. Up until now, I don't think this has been controversial and I don't think GitHub gets a lot of takedown requests for this practice. I think most developers see this as a feature, not a bug. Copilot might make people rethink whether or not they want to start sending take-down requests but that'll be a tough call for a lot of people because withholding code from GitHub to avoid its usage in Copilot also effectively means making their code less easily available to the rest of the world. It may be very disruptive to other projects that include the copyright owner's code in their own projects.

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