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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

#31

Post by junon »

Havoc wrote: post #14

What’s the point of licenses if TOS overrides it?

Github's TOS doesn't infringe on any licenses.

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

I'm actually surprised they allowed Copilot to happen, given this section:

> 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, except that as part of the right to archive Your Content, GitHub may permit our partners to store and archive Your Content in public repositories in connection with the GitHub Arctic Code Vault and GitHub Archive Program.

One could make the argument they had no intrinsic right to use the software for Copilot except under the terms laid out under the respective softwares' licenses. This means any GPL code they copied by error is now in violation of the GPL by default. But IANAL.

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

#32

Post by Xylakant »

NicoJuicy wrote: post #12
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…

Their service is hosting code, not writing code. That's why it's GitHub, not CodeScribe ( or something)

It’s definitely more than just hosting code - GitHub offers issue/PR management, light weight project management, an online IDE for collaborative editing and CI services at least. Arguing that GitHub provides services that aim to improve developer/development team productivity is not a stretch. And arguing that ML-assisted development support is part of that definition isn’t particularly far out either.

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

#34

Post by World177 »

junon wrote: post #31
Havoc wrote: post #14

What’s the point of licenses if TOS overrides it?

Github's TOS doesn't infringe on any licenses. https://docs.github.com/en/site-policy/github-terms/github-t... I'm actually surprised they allowed Copilot to happen, given this section: > 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, except that as part of the right to arch…

In my memory, when GitHub released it, they were explicit that using data like this “is common practice in machine learning.” Though, I tried to find the quote and couldn’t, so maybe my memory is wrong and I am remembering a blog post from another organization.

edit: The exact quote was “Training machine learning models on publicly available data is considered fair use across the machine learning community” if you want to search for it.

edit 2: https://web.archive.org/web/20210629142841/http://copilot.gi...

> Frequently Asked Questions -> Training Set -> Why was GitHub Copilot trained on data from publicly available sources?

> Training machine learning models on publicly available data is now common practice across the machine learning community. The models gain insight and accuracy from the public collective intelligence. But this is a new space, and we are keen to engage in a discussion with developers on these topics and lead the industry in setting appropriate standards for training AI models.

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

#35

Post by World177 »

amarant wrote: post #17
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…

Probably the ToS. You've granted GitHub specifically license to use your code under the terms of the ToS, they effectively have 2 licenses. They can therefore choose under which licence they want to use your code, and will choose the most permissive one, or the one they have the best understanding of: in this case the ToS. Other parties are not granted license under the ToS, and so will have to abide by the AGPL.

License takes precedence when you don’t own the copyright. ToS takes precedence when legally allowed and you do own the copyright.

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

#36

Post by nomilk »

fhd2 wrote: post #30
geysersam wrote: post #20

Earlier quoted context omitted.

1. Humans are not neural networks. 2. Humans are not allowed to directly copy even rather short snippets of licenced code. 3. Humans do not have the capacity to memorize the entirity GitHub.

I can't shake the feeling that a lot of the logic around ML models having more or less the same "rights" as humans comes from misleading marketing that they, in any shape or form, resemble human intelligence. AI is a buzzword applied to any kind of algorithm for an activity that people previously thought couldn't be automated. Back when I was young, graph pathfinding algorithms where called AI. A few decades later th…

An argument in favour of legality of web scraping is if a human can look at websites and collect data, then why shouldn't they be allowed to do the same programatically?

This is the same but for use of open source code: if humans are allowed to use one specific (organic) neural network to read, process, and use open source code, then why shouldn't they be allowed to use some other neural network, artificial or otherwise.

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

#38

Post by david_allison »

az226 wrote: post #29
david_allison wrote: post #21

Earlier quoted context omitted.

It's not the license of the model, it's the license of the output. As it stands, Copilot is a black-box which strips copyright from a piece of code. I'd be fine if it were a level playing field and GitHub also trained it on private repositories - that's a signal that they don't care about copyright at all. I'd be fine as a developer who releases GPL'ed code if the output was licensed as GPL - obviously no license vio…

But Copilot doesn't take your code at best it has learned from a fraction of a fraction of your code and synthesized it with tens or thousands of like examples and the output may look similar to your code because it's trying to achieve the same thing. It's not like Copilot takes your entire repo and clones it and says "we washed the onerous license requirements away for ya".

There's a minimum level of complexity and creativity which constitutes a copyright violation. It's up to a legal professional to draw the line, but I believe it can be a single line of code (`i = 0x5f3759df - ( i >> 1 );`)

If I saw 100 LOC which was very similar to something which I wrote, AND contained a log statement copied verbatim, it's very easy to imply that the entire piece of code is a derivative work.

Let's say I write FizzBuzz:

    // Copyright (c) 2022 David Allison. All rights reserved.

    for num in range(100):
        if num % 3 == 0 and num % 5 == 0:
            print("DA: fizzbuzz")
        elif num % 3 == 0:
            print("DA: fizz")
        elif num % 5 == 0:
            print("DA: buzz")
        else:
            print(num)
If I found the modified FizzBuzz algorithm in the wild with one line containing the "DA" prefix, it may have been learned from a fraction of a fraction of my code but it still contains my 'unique' creativity, is that a copyright violation?

Aside: Due to some uniquely named code I've contributed to, I strongly suspect that Copilot would output my GitHub username. I don't really want to open Pandora's box here, but I'd be curious.

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

#39

Post by ranguna »

az226 wrote: post #29
david_allison wrote: post #21

Earlier quoted context omitted.

It's not the license of the model, it's the license of the output. As it stands, Copilot is a black-box which strips copyright from a piece of code. I'd be fine if it were a level playing field and GitHub also trained it on private repositories - that's a signal that they don't care about copyright at all. I'd be fine as a developer who releases GPL'ed code if the output was licensed as GPL - obviously no license vio…

But Copilot doesn't take your code at best it has learned from a fraction of a fraction of your code and synthesized it with tens or thousands of like examples and the output may look similar to your code because it's trying to achieve the same thing. It's not like Copilot takes your entire repo and clones it and says "we washed the onerous license requirements away for ya".

Copilot used (for training) copyrighted code without respecting the license and can generate pieces of copyrighted code verbatim without respecting the original license as well.

I pay for copilot and this is very much the truth, but let's see what the court rules out.

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

#40

Post by VBprogrammer »

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?
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