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Comment by katmannthree | Hacker News Reader

How exactly does Copilot not open Microsoft up to significant legal liability, when it has been demonstrated that copilot will regurgitate entire blocks of scanned code?

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It's unclear whether MS would be directly liable for copyright infringement; the Aereo case[0] perhaps expanded a device-maker's direct liability for user actions. MS would likely escape secondary copyright liability because the verbatim suggestions are really rare, and the standard under the Sony VCR case[1] is whether the device is "capable of substantial non-infringing uses."

EDIT: The user would perhaps be the direct infringer as the person who made a copy of the code, even unwittingly.

Source: current law student taking copyright and writing a paper about Copilot.

[0] https://en.wikipedia.org/wiki/American_Broadcasting_Cos.,_In....

[1] https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Unive....

Fascinating, thank you! I imagine this would make it even more likely that large orgs would ban the use of VS Code.

Ya, I'd be curious to hear how orgs are thinking about it. It could be that the risk of a copyright judgment against the org is outweighed by the efficiency gains from Copilot. The risk involved has an element of discoverability – how the heck is the OSS developer whose small snippet of code gets sucked into a closed-source project going to learn of the infringement?

Other stuff within copyright makes infringement of a small Copilot snippet less likely too, and the recent Google v. Oracle decision reinforced the fact that copyright is an awkward fit within copyright and may sometimes get less protection than things like fictional books. Fair use also comes in here, too; remember something as "egregious" as Google copying 37 Java packages worth of package / class / method declarations into Android was held a fair use. Declaring code is sort of special because it's more like an interface, but the Court really reinforced the notion that it likes cool new technology stuff that opens new markets, makes new products, etc., and a fair use finding for small snippets of code is in line with that as adapting copyright doctrine in the face of tech changes like AI / ML.

I may add that like in my case it doesn't have to be an entire block of code. I think most people have this idea that copilot just alters the content enough so it is basically doing the same thing without being a literal copy of the original. Perhaps adjusting to the project at hand.

Part of the problem is much simpler actually. Copyrighted text can cited without permission or product names become public before release, revealing disclosed information to competitors.

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