No right to relicense this project • Hacker News Board

Re: No right to relicense this project

#381

Post by pas » Sat, Mar 07, 2026, 9:07 AM UTC

PaulDavisThe1st wrote: post #264

I am confused. In the USA, there has been a clear rule that machine-generated code cannot be copyright. If the "new implementation" was in fact created by Claude (which is my impression), then nobody holds any copyright to the code, and it cannot be licensed under any license at all. I am sure I am missing something ... what is it?

The machine cannot get authorship, but just as images created by humans with PhotoShop and all kinds of machinery are still copyrighted to the human creator - unless they explicitly set up some circumstances where the process of creation happens completely without them - code/software produced by a machine instructed by a human should get copyright (either original or derivative).

Unless the human is so far removed from the output. (And how far is far enough is probably very much depends on the circumstances and unless/until case law or Congress gives us some unifying criteria, it's going to be up to how the judge and the jury feels.)

..

For example someone set up a system where their dog ends up promoting some AI to make video games. This might be the closest to the case of that photo.

Though there the court ruled only that PETA (as friend of the monkey) cannot sue the photographer, because the monkey cannot be a copyright holder, but very importantly it didn't rule on the authorship of the photographer. (And thus the Wikimedia metadata which states that the image is in thr public domain, is simply their opinion.)

Re: No right to relicense this project

#382

Post by rerdavies » Sun, Mar 08, 2026, 10:45 AM UTC

nmfisher wrote: post #322

rao-v wrote: post #282

Earlier quoted context omitted.

I’m genuinely surprised to see this not discussed more by the FOSS community. There are so many ways to blow past the GPL now: 1. File by file rewrite by AI (“change functions and vars a bit”) 2. One LLM writes a diff language (or pseudo code) version of each function that a diff LLM translates back into code and tests for input/output parity The real danger is that this becomes increasingly undetectable in closed so…

I’ve never delved fully into IP law, but wouldn’t these be considered derivative works? They’re basically just reimplementing exactly the same functionality with slightly different names? This would be different from the “API reimplementation” (see Google vs Oracle) because in that case, they’re not reusing implementation details, just the external contract.

Because copyrights do not protect ideas. Thankfully. We are free to express ideas, as long as we do so in our own words. How that principle is applied in actual law, and how that principle is a applied to software is ridiculously complicated. But that is the heart of the principle at play here. The law draws a line between ideas (which cannot be copyrighted), and particular expressions of those ideas (e.g. the original source code), which are protected. However, it is an almost fractally complicated line which, in many place, relies on concepts of "fairness", and, because our legal system uses a system of legal precedence, depends on interpretation of a huge body of prior legal decisions.

Not being a trained lawyer, or a Supreme Court justice, I cannot express a sensible position as to which side of the line this particular case falls. There are, however, enormously important legal precedents that pretty much all professional software developers use to guide their behaviour with respect to handling of copyrighted material (IBM vs. Ahmdall, and Google v. Oracle, particularly) that seem to suggest to us non-lawyers that this sort of reimplementation is legal. (Seek the advice of a real lawyer if it matters).

Re: No right to relicense this project

#383

Post by rerdavies » Sun, Mar 08, 2026, 11:57 AM UTC

dmurvihill wrote: post #376

simiones wrote: post #246

Earlier quoted context omitted.

I think this is a bit too broad. There are actually three possible cases. When there is similar code, the only defense possible to prove that you have not copied the original is to show that your process is a clean room re-implementation. If the code is completely different, then clean room or not is indeed irrelevant. The only way the author can claim that you violated their copyright despite no apparent similarity…

The burden of proof is completely uncharted when it comes to LLMs. Burden of proof is assigned by court precedent, not the Copyright Act itself (in US law). Meaning, a court looking at a case like this could (should) see the use of an LLM trained on the copyrighted work as a distinguishing factor that shifts the burden to the defense. As a matter of public policy, it's not great if infringers can use the poor account…

On the other hand, as a matter of public policy, nobody should be able to claim copyright protection for the process of detecting whether a string is correctly formed unicode using code that in no material way resembles the original. This is not rocket science.

Re: No right to relicense this project

#384

Post by rao-v » Sun, Mar 08, 2026, 7:51 PM UTC

rerdavies wrote: post #382

nmfisher wrote: post #322

Earlier quoted context omitted.

I’ve never delved fully into IP law, but wouldn’t these be considered derivative works? They’re basically just reimplementing exactly the same functionality with slightly different names? This would be different from the “API reimplementation” (see Google vs Oracle) because in that case, they’re not reusing implementation details, just the external contract.

Because copyrights do not protect ideas. Thankfully. We are free to express ideas, as long as we do so in our own words. How that principle is applied in actual law, and how that principle is a applied to software is ridiculously complicated. But that is the heart of the principle at play here. The law draws a line between ideas (which cannot be copyrighted), and particular expressions of those ideas (e.g. the origin…

Taking a step back, it seems fairly clear that wherever you set the bar, it should be possible to automate a system that reads code, generates some sort of intermediate representation at the acceptable level of abstraction and then regenerates code that passes an extensive set of integration tests … every day.

At that point our current understanding of open source protections … fails?

Re: No right to relicense this project

#385

Post by rerdavies » Mon, Mar 09, 2026, 5:05 AM UTC

rao-v wrote: post #384

rerdavies wrote: post #382

Earlier quoted context omitted.

Because copyrights do not protect ideas. Thankfully. We are free to express ideas, as long as we do so in our own words. How that principle is applied in actual law, and how that principle is a applied to software is ridiculously complicated. But that is the heart of the principle at play here. The law draws a line between ideas (which cannot be copyrighted), and particular expressions of those ideas (e.g. the origin…

Taking a step back, it seems fairly clear that wherever you set the bar, it should be possible to automate a system that reads code, generates some sort of intermediate representation at the acceptable level of abstraction and then regenerates code that passes an extensive set of integration tests … every day. At that point our current understanding of open source protections … fails?

Depends whether you sit on the MIT half of open source, or the GPL side of open source, I suppose.

Re: No right to relicense this project

#386

Post by simiones » Mon, Mar 09, 2026, 11:18 AM UTC

dmurvihill wrote: post #376

simiones wrote: post #246

Earlier quoted context omitted.

I think this is a bit too broad. There are actually three possible cases. When there is similar code, the only defense possible to prove that you have not copied the original is to show that your process is a clean room re-implementation. If the code is completely different, then clean room or not is indeed irrelevant. The only way the author can claim that you violated their copyright despite no apparent similarity…

The burden of proof is completely uncharted when it comes to LLMs. Burden of proof is assigned by court precedent, not the Copyright Act itself (in US law). Meaning, a court looking at a case like this could (should) see the use of an LLM trained on the copyrighted work as a distinguishing factor that shifts the burden to the defense. As a matter of public policy, it's not great if infringers can use the poor account…

The way I see this it looks like this:

1. Initially, when you claim that someone has violated your copyright, the burden is on you to make a convincing claim on why the work represents a copy or derivative of your work.

2. If the work doesn't obviously resemble your original, which is the case here, then the burden is still on you to prove that either

(a), it is actually very similar in some fundamental way that makes it a derived work, such as being a translation or a summary of your work

or (b), it was produced following some kind of mechanical process and is not a result of the original human creativity of its authors

Now, in regards to item 2b, there are two possible uses of LLMs that are fundamentally different.

One is actually very clear cut: if I give an LLM a prompt consisting of the original work + a request to create a new work, then the new work is quite clearly a derived work of the original, just as much as a zip file of a work is a derived work.

The other is very much not yet settled: if I give an LLM a prompt asking for it to produce a piece of code that achieves the same goal as the original work, and the LLM had in its training set the original work, is the output of the LLM a derived work of the original (and possibly of other parts of the training set)? Of course, we'll only consider the case where the output doesn't resemble the original in any obvious way (i.e. the LLM is not producing a verbatim copy from memory). This question is novel, and I believe it is being currently tested in court for some cases, such as the NYT's case against OpenAI.

Re: No right to relicense this project

#387

Post by simiones » Tue, Mar 10, 2026, 10:56 AM UTC

camgunz wrote: post #352

simiones wrote: post #350

Earlier quoted context omitted.

The person I replied to said "No one's arguing they're authoring generated code; the whole point is to not author it.". My point was that people absolutely do think and believe strongly they are authoring code when they are generating it with AI - and thus they are claiming ownership rights over it.

(the person you originally replied to is also me, tl;dr: I think engineers don't think they're authoring, but companies do) The core feature of generative AI is the human isn't the author of the output. Authoring something and generating something with generative AI aren't equivalent processes; you know this because if you try and get a person who's fully on board w/ generative AI to not use it, they will argue the o…

(oops, I didn't check the usernames properly, sorry about that)

I still don't think this is fully accurate.

The view I'm noticing is that people consider that they have a right to the programs they produce, regardless of whether they are writing them by hand or by prompting an LLM in the right ways to produce that output. And this remains true both for work produced as an employee/company owner, and for code contributed to an OSS project.

Also, as an employee, the relationship is very different. I am hired to produce solutions to problems my company wants resolved. This may imply writing code, finding OSS code, finding commercial code that we can acquire, or generating code. As part of my contract, I relinquish any rights I may have to any of this code to the company, and of course I commit to not use any code without a valid license. However, if some of the code I produce for the company is not copyrightable at all, that is not in any way in breach of my contract - as long as the company is aware of how the code is produced and I'm not trying to deceive them, of course.

In practice, at least in my company, there has been a legal analysis and the company has vetted a certain suite of AI tools for use for code generation. Using any other AI tools is not allowed, and would be a breach of contract, but using the approved ones is 100% allowed. And I can guarantee you that our lawyers would assert copyright to any of the code generated in this way if I was to try to publish it or anything of the kind.

Re: No right to relicense this project

#388

Post by camgunz » Tue, Mar 10, 2026, 11:16 PM UTC

simiones wrote: post #387

camgunz wrote: post #352

Earlier quoted context omitted.

(the person you originally replied to is also me, tl;dr: I think engineers don't think they're authoring, but companies do) The core feature of generative AI is the human isn't the author of the output. Authoring something and generating something with generative AI aren't equivalent processes; you know this because if you try and get a person who's fully on board w/ generative AI to not use it, they will argue the o…

(oops, I didn't check the usernames properly, sorry about that) I still don't think this is fully accurate. The view I'm noticing is that people consider that they have a right to the programs they produce, regardless of whether they are writing them by hand or by prompting an LLM in the right ways to produce that output. And this remains true both for work produced as an employee/company owner, and for code contribu…

Every contract I've seen has some clause where the employee affirms they have the right to assign the rights to their output (code, etc) to the company.

I'm not really convinced; I think if I vibe code an app, and you vibe code an app that's very, very similar, and we're both AI believers, we probably both go "yup, AI is amazing; copyright is useless." You know this because people are actively trying to essentially un-GPL things with vibe coding. That's not authoring, that's laundering, and people only barely argue about it. See: this chardet situation, where the guy was like "I'm intimately familiar with the codebase, I guided the LLM, and I used GPL code (tests and API definitions, which are all under copyright) to ensure the new implementation behaved very similarly to the old one." Anything in the new codebase is either GPL'd or LLM generated, which according to the copyright office, isn't copyrightable. If he's right, nothing prevents me from doing the exact same thing to make a new public domain chardet. It's facially absurd.