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

I don't want Github or any other megacorp-backed entity abusing the open source community in the way micro$oft is here, it's as simple as that. If they wish to train it on entirely proprietary Microsoft code, then by all means go nuts, but to take the work of open source projects and to hide behind the pretense of the mathematical model behind the A"I" learning something is simply ridiculous to me.

I find it quite curious that they're not doing that (training it on their own codebase). Perhaps they're afraid of their little intelligence spitting out proprietary code verbatim like it's been shown to do many times with licensed open source code.

This is wrong on so many levels.

1. Copyright grants a limited set of rights to the copyright holder. "Use" typically doesn't fall into that set. Everyone has the right to "use" copyrighted material for any purpose that isn't some kind of copy or distribution.

2. Even when we consider uses which are actually covered by copyright, a license is not the only way to legally copy the material. Fair use exists.

3. There is no such thing as "the license attached to it". Licenses do not "attach" to copyrighted works. A license is an individual agreement between the copyright holder and each and every person who wants to use the material (within the scope of copyright rights and outside of fair use). Those agreements can be different in every instance, if the licensor and licensee have so agreed.

The only thing a LICENSE file or other similar way of indicating a license on code does is make a (binding) offer to license the work under the specified terms to all comers. Once anyone actually has a license by any means, including a separately negotiated license, then the LICENSE file no longer has anything to do with them or their use of the material. In the case of github, they have separately negotiated (by making a binding offer of their own in their ToS) a license to use the material for the provision of their service; therefore the LICENSE file has nothing to do with them (unless they want to use the offered license instead of the one they negotiated, and they haven't negotiated away the right to use the license offered in the LICENSE file).

You have apparently misunderstood copyright licenses as being something that attaches to a copyrighted work and now must be respected by all users of that work. But that is totally incorrect.

Licenses are individual agreements between copyright holders (or licensees who have been granted the right to re-license) and people who want to exercise one of the rights normally withheld under copyright. A LICENSE file is nothing but an offer to grant a license with specified terms to anyone who might want to use the work, without having to nag the licensor to sign an agreement. The existence of that offer doesn't have anything to do with any other agreement the licensor and a (potential) licensee might make.

In the GitHub case, GitHub has negotiated a different license with the uploader. (That negotiation happened to take the form of a ToS, which is another kind of binding offer.) The LICENSE file has nothing to do with it. It hasn't been overridden, it's just irrelevant. It doesn't add or subtract any terms from the separate and distinct license GitHub negotiated.