But that's about as unlikely as the code containing trade secrets.
Plus:
- For copyright infringement, they'd need to actually redistribute the code. Using it for machine learning and distributing short snippets wouldn't be copyright infringement.
- For that trade secret stuff you'd need to prove intent.
IANAL, but I don't think so. In MAI v. Peak[1], the court determined that even loading a program from disk to RAM was a copy, and therefore infringing without a license. Congress has since then added a specific exception for "Machine maintenance and repair", but that's it. Copying from a remote machine and storing it in their disks should certainly qualify.
[1] https://en.wikipedia.org/wiki/MAI_Systems_Corp._v._Peak_Comp....
Unpublished code, is itself a trade secret. Even just the processes, procedures, organisation, tooling, library use, etc in the code provides a competitive advantage. i.e. The 'metadata' is also a trade secret.
The only intent you'd need to prove is that the accused is using the trade secret to the 'economic benefit of anyone other than the owner'.
It seems obvious that Kite is training a proprietary ML algorithm, with trade secrets, for their own economic benefit.