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Comment by lubujackson | Hacker News Reader

"Copilot is a commercial product, therefore, Github can only use code that the owners make available for commercial use."

IANAL, but this doesn't sound quite right. There is a difference between "using" code (running it in a commercial product) and manipulating it as arbitrary data within a commercial product.

It definitely can be a gray area, but let's say I use Amazon's service where I email a PDF to my Kindle - is it Amazon's responsibility to know the copyright status of the PDF, or mine? In both cases a commercial product is manipulating copywritten data for the benefit of a user.

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Maybe you're right, maybe you're wrong.

I'll give the best example, the one task that off the top of my head that I would like some AI help with.

I would really like to replicate the functionality of Java's SSLEngine, but for C#.

If I used Co-Pilot to help, at best, I would need to pay for a legal team to do some form of 'clean room' review of whatever was generated to make sure it did not infringe on the OpenJDK code that is out there. At worst, I would be having to defend myself from Oracle's legal team -anyway-.

And yeah, I'm assuming in this case that Copilot would be 'smart' enough to be able to make the right inferences of that java code and put it into workable C# construct. Stepping back, though, one could still ask the question; what's the risk of a Java developer accidentally getting some OpenJDK code a little too closely? There's an order of magnitude difference between even a smaller AGPL developer and Oracle.

If Microsoft/GH was willing to go to bat and agree to pay for the defense of users of Copilot, I would be far less concerned with the implications of all of this.

> Stepping back, though, one could still ask the question; what's the risk of a Java developer accidentally getting some OpenJDK code a little too closely? There's an order of magnitude difference between even a smaller AGPL developer and Oracle.

It would be extremely interesting to know how much accidental and non accidental code infringement happens and in what proportion of those cases go to the courts. I would guess that both cases happen utterly constantly and it is only a tiny minority of those cases where legal action is taken. If that's the case right now, then nothing has changed with this tool except the possibility of playing hot potato with liability when those few cases that do happen make it to courts. Even if the developer actually wrote the code that infringed, copilot could make a useful scapegoat and every case will have plausible deniability if copilot lacks really good explainability.

> every case will have plausible deniability if copilot lacks really good explainability.

Out of pure curiosity, and please do take it as a candid question; do you intend to mean that "I don’t know how what I used works" is a good defence?

Even if it's legal for Copilot to do what it does, does it not violate GPL to take pieces of GPL'ed code and use them in a commercial product?

Yes.

The basis of the GPL is copyright, so what you're really asking is whether you can use part of a copyrighted work in another work without infringing.

And the answer as always is "it depends".

If I use Copilot and it suggests a large block of GPL2'ed code for my project, which I then include, then that is a GPL2 license violation.

Whether the GPL2 will hold up in court, or whether the courts will uphold this specific case (e.g. can you prove intent? Do you need to?), is a separate issue entirely.

The next question is, can I use GPL'ed code in my product and then claim that it was injected by Copilot to avoid repercussions of my actions if caught?

> If I use Copilot and it suggests a large block of GPL2'ed code for my project

But why would copilot do this? It's a language model not a database.

> If I use Copilot and it suggests a large block of GPL2'ed code for my project, which I then include, then that is a GPL2 license violation

Not necessarily. Even 11k lines of copied code might fall under fair use, as Oracle recently discovered ;)

There are plenty of SAAS that use GPL'd code on the backend. That's fine.

The claim (which I'm not qualified to judge) is that this use falls under fair use. The point of fair use is to allow some use of copyrighted works even if the copyright owner does not license it to you and even if the owner is explicitly hostile towards your usage. If it is indeed fair use, then the license doesn't matter because that's not the thing that's allowing you to use the work.

You mean like Red Hat Enterprise Linux, that kind of commercial product based on GPL'd code?

The proprietary model is a representation of lots of harvested open source code snippets. Without the model copilot is nothing. Arguably, the code snippets are part of the product....

Your example doesn't quite match what's happening in real life though. You're not "using copilot as a mechanism to ferry around code". Co-pilot is making recommendations for what code to use and then also giving that exact code (the text) to you. A more apt example would be if Amazon had some UI which said "What kind of book do you want to read on your kindle?", you click the button labeled "biography", and then Amazon sends your Kindle an AI generated book which is the biography of a famous person, and it just so happens that the "generated" book being sent to you is an exact copy of someone elses book (or incorporates exact copies of chapters/paragraphs of someone elses book), legal disclaimers and all.

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