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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

#171

Post by frumper »

MattPalmer1086 wrote: post #112
rwmj wrote: post #75

Earlier quoted context omitted.

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?

If you upload it to GitHub, you've already granted them a license to use it to improve their service. You aren't sharing it with GitHub under your custom BSD license, you're sharing it with GitHub users under that.

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

#172

Post by MattPalmer1086 »

frumper wrote: post #170
MattPalmer1086 wrote: post #121

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…

You give GitHub the right to use anything you upload to improve their service. What you're trying to say is after you create your GitHub account and agree to that, you're posting magic words(OSS License) that somehow binds GitHub which already has a more permissive license that you granted to them. It's articulated in the blog post.

Oh you certainly grant github some rights necessary to operate the service. Here is a relevant part:

"This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content outside of our provision of the Service"

Now, I read that to mean they can't sell my content. But apparently they can if they store it in a machine learning model to a greater or lesser accuracy!

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

#173

Post by MattPalmer1086 »

puffoflogic wrote: post #167
MattPalmer1086 wrote: post #121

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

You make some fair points, although I wasn't trying to be legally accurate.

I agree that use isn't governed by copyright, copying is. However, to "use" code is to make a copy of it (multiple times usually).

As far as attachment goes, I think the common sense meaning was clear. On GitHub, you can attach a license. I wasn't claiming that "attachment" was some feature of copyright law!

On fair use, I agree with your point entirely.

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

#174

Post by MattPalmer1086 »

frumper wrote: post #171
MattPalmer1086 wrote: post #112

Earlier quoted context omitted.

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?

If you upload it to GitHub, you've already granted them a license to use it to improve their service. You aren't sharing it with GitHub under your custom BSD license, you're sharing it with GitHub users under that.

Thanks. I finally understood its a separate license grant to GitHub.

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

#175

Post by VBprogrammer »

IshKebab wrote: post #158
VBprogrammer wrote: post #40

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?

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 l…

Private isn't a useful distinction though right? Even open source code often has a licence and conditions on how you can reuse or integrate it into your own code. Someone owns it.

If you sell a product which can regurgitate large parts of code who's licence doesn't allow it to be completely freely used and modified then this kind of outcome seems a foregone conclusion.

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

#176

Post by frumper »

MattPalmer1086 wrote: post #174
frumper wrote: post #171

Earlier quoted context omitted.

If you upload it to GitHub, you've already granted them a license to use it to improve their service. You aren't sharing it with GitHub under your custom BSD license, you're sharing it with GitHub users under that.

Thanks. I finally understood its a separate license grant to GitHub.

Also, apologies for responding to you twice with the same thing. I think I mixed something up and didn't intend to do that

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

#177

Post by jillesvangurp »

BeefWellington wrote: post #145
jillesvangurp wrote: post #115

Earlier quoted context omitted.

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 s…

All those examples you give are transformative in some way or other. It's an interesting test of open source licensing because I'm not aware of any other area of copyright where works come with an explicit "if you use this somewhere else you must credit me as the initial author" in the implied/provided license. Comparing music, literature, etc. to code is difficult because of both this difference and the existence of…

Actually, it might be challenging to programmers to grasp but it's a lot easier for a non technical judge. Same difference and easy comparison: Specific form and fair use. Nothing else matters. Two very simple concepts with a long history of being challenged in courts. There's nothing new here for a judge to consider. The specific form here is small blurbs of code that are suggested to end users by Github. Does that constitute a copyright violation? Answer no, because it's a small sample that falls under fair use.

It doesn't matter whether it's music, literature, or code. Fair use is fair use. And it's been challenged so often that no judge is going to make any exceptions just because we are now dealing with software.

End of story. No basis for any copyright infringement here. Not even worth trying out in a court because you'd be laughed away. The plaintiffs in this case clearly realized that and did not bother with even trying to prove otherwise.

Software patents are not part of this court case either for the obvious reason that the vast majority of copyright holders in this case don't actually hold any patents whatsoever. And if they would, it would not be Github's problem but the problem of those creating possibly infringing products without a license. Github just gives people access to (public) knowledge here. That's what a patent is: public knowledge. It's up to the user to decide if they are OK shipping products that include that. And it's their problem to do any due diligence.

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

#178

Post by 6stringmerc »

dragonwriter wrote: post #133
IncRnd wrote: post #102

Earlier quoted context omitted.

> 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.

Chicken-egg it exists and is so far from written intention by coincidentally both artists and publishers to be a mutant, it’s just such a mess.

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

#179

Post by IncRnd »

dragonwriter wrote: post #133
IncRnd wrote: post #102

Earlier quoted context omitted.

> 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.

You are assuming that promoting the progress of science and useful arts is for the public benefit, but it can easily happen in private. That is why public benefits are not primary. That is what I pointed out to you in my earlier post, but you continue to make that same flawed assumption.

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

#180

Post by ghoward »

lindenksv1 wrote: post #160
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…

I am an Open Source developer. My code is not on GitHub and never will be.

If my code was uploaded on GitHub, I would DMCA it because of Copilot, but it wouldn't matter because the information is already in the model. So the DMCA does not help here.

The only way it would help is if I could DMCA the entire model and force them to retrain without my code. As it stands, this lawsuit is the only way for GitHub to be reined in; I don't have the resources to do so on my own.

IANAL.

Also, about high impact, suppose Copilot has 1 million users that use it on average 10 times a day, 5 days a week. You claim that less than 1% of uses of Copilot would result in copyright violation. Let's assume 0.1%. How many times would copyright violation happen per day? It would happen 10,000 times per day. For five days a week.

It would take a mere twenty weeks (less than six months) to reach a million violations.

That seems impactful.

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