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Comment by endisneigh | Hacker News Reader

Either these things stop or software licensing is meaningless. Pick one.

People somehow arguing that both things can be untrue are delusional imo. If copilot is ok, then obfuscating code in order to get around a license is ok.

Copilot can produce agpl code verbatim, and per the license copilot should also be agpl, but that’s not going to happen practically, so copilot will probably be shut down.

This is to say nothing of commercial code.

Best way to think of it is like - if copilot was a group of people manually writing and sending code would it be ok? No.

Why should big tech be able to effectively reproduce the work of the little guy without following the licenses they set?

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There is also the option that MS claims: Copilot may be perfectly fine as it is, BUT you may not be allowed to distribute (or even use internally) code it generates for you.

This is what the current terms of service of Copilot say: you as the user are responsible for ensuring you are not breaking anyone's copyright when you accept an auto-completion from Copilot. How you would know that it just spit out someone else's code is unspecified, of course.

Of course, similar tools that make it easy to infringe others' copyright are less accepted when they don't come from corporate behemoths (cough Popcorn Time cough), but such is the world we live: copyright protection for me but not for thee.

>> This is what the current terms of service of Copilot say: you as the user are responsible for ensuring you are not breaking anyone's copyright when you accept an auto-completion from Copilot. How you would know that it just spit out someone else's code is unspecified, of course.

This is the key point.

If they were confident that the "generated" code did not violate any copyright or licenses then they would be using Copilot internally or offering indemnity for commercial users of Copilot.

Is Microsoft or Github using Copilot for the proprietary software products they sell? (that is, are they "dog-fooding" Copilot?)

What corporate legal team would be willing to sign off on the use of Copilot for a software product that is sold and distributed?

If the "generated" code is licensed under the GPL and it gets mixed into a proprietary software product then the terms of the GPL have been violated and the proprietary code falls under the GPL.

> or offering indemnity for commercial users of Copilot

Their enterprise offering is not available yet, so we don't if that is the case or not

> Is Microsoft or Github using Copilot for the proprietary software products they sell? (that is, are they "dog-fooding" Copilot?)

Yeah, that's my question. Are MS devs allowed to use Copilot? For, say, developing Windows? Edge? Office? If no, then I'm gonna continue to stay the hell away from it.

I think companies have gotten so relaxed about indemnity because of things like section 230 protection and the typical EULA claiming no responsibility that they're now trying to extend it where it doesn't belong.

In any other industry, MS WOULD offer indemnity protection or it would be dead-in-the-water and no company would even attempt what MS is attempting to do.

Big tech really needs to be reigned in.

Where is this? The terms of service I could find for Copilot state:

> The code, functions, and other output returned to you by GitHub Copilot are called “Suggestions.” GitHub does not claim any rights in Suggestions, and you retain ownership of and responsibility for Your Code, including Suggestions you include in Your Code.

It's not super clear ("retain"?) but I understand it as claiming that you own the copyright on the suggestions you get when you run Copilot.

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

Here it is in their FAQ [0]:

> Other than the filter, what other measures can I take to assess code suggested by GitHub Copilot?

> You should take the same precautions as you would with any code you write that uses material you did not independently originate. These include rigorous testing, IP scanning [IP == intellectual property, in this context - my note], and checking for security vulnerabilities. You should make sure your IDE or editor does not automatically compile or run generated code before you review it.

I believe the "you retain ownership and responsibility for Your Code, including Suggestions" is the part that covers this in the terms of service.

[0] https://github.com/features/copilot#faq-human-oversight

> Copilot may be perfectly fine as it is, BUT you may not be allowed to distribute (or even use internally) code it generates for you.

This will just encourage stolen (and now closed source) code.

> Either these things stop or software licensing is meaningless. Pick one.

I think this is overly simplistic. People routinely write code that bears a lot of similarity to existing code (there's only so many ways you can write "for x in my_list: print(x)") so there's some threshold for originality that's applied. Looking at it from the other side, minor tweaks to otherwise interesting and novel bits of code shouldn't exempt you from the original licensing obligations.

There's a happy medium in there somewhere (though admittedly it's hard to define).

There is a ton of existing court decisions that have addressed theses questions.

I think this is overly simplistic. People routinely write comments that bear a lot of similarity to other comments (there's only so many ways you can write words in English) so there's some threshold for originality that's applied.

Looking at it from the other side, minor tweaks to otherwise interesting and novel comments shouldn't exempt you from scrutiny.

There might be a happy medium in there somewhere, but it's hard to know for sure.

Now I wonder if copyright for source-code should have its own “satire” exception...

I've never seen someone independently recreate exact comments with a persons name in it, have you? Do you find that reasonable as an excuse for independent creation?

Github cannot independently create code, we know this. Comparing Github to humans writing code is disingenuous at best.

The entire system is arbitrary. That's the problem: Microsoft is benefiting both front the enforcement of copyright and the violation of it.

Why should Microsoft be free to use the work of the little guy and not vice versa? It really needs to go both ways or neither.

Or it's fair use. Fair use is what enables the use of samples in musics or the use of photographs by the likes of Andy Warhol to create new works of art. You can also cite literature and other texts. It's a pretty broad notion.

So, it's not as black and white as people seem to insist things must be by their limited & flawed understanding of copyright law as it exists in various countries (the world is bigger than the US, and people use co-pilot outside the US).

If you ever copied code from a book or a web page, you are doing exactly the same thing as github co-pilot is doing. And it's fine and legal to do so because that is fair use. That's why fair use exist: so we can actually use the information that is shared with us via copyrighted works. You can't restrict fair use with a license; so the original license is not relevant here. It applies to distributing the whole copyrighted work, not bits and pieces of it.

The only legal question that might exist around Github co-pilot is whether it can be defended as fair use. It probably is but it would need to be challenged in a court to get that verified. So, we might know in a decade or so if somebody actually feels like spending a few million on kick-starting that process (best of luck!). And you'd actually have to go after users of github co-pilot as Github neatly deflects responsibility to the end user. All they do is show you some code.

training on OSS may be considered fair use (that hasn't been challenged in courts yet, but it would probably hold).

But that says nothing about its output being fair use, and that definitely won't hold up in court anymore than the output of a human retyping a novel word-for-word would hold up as fair use.

This, everyone seems to have forgotten or never known that “open source” isn’t a license. Commercial entities can make code open but with a closed license. The main example being UC Berkeley and BSD Unix. Seems like the copilot people confused “public” code and having a free or “open” license to the code.

Code which is publicly viewable but available under a license which doesn't meet the Open Source Definition[1] is commonly called "shared source" rather than "open source".

They aren't really confused about the licensing. Microsoft suggests that no matter what the license is for training code, generated code is not infringing — either because Copilot training is "fair use", because the similarity isn't strong enough, or because the amount copied is de minimis. However, the risk is primarily borne by the users, not by Microsoft.

[1] https://opensource.org/osd

> Microsoft suggests that no matter what the license is for training code, generated code is not infringing

They claim no such thing. They claim that Copilot itself is not infringing any license by being trained on code - that their own use of the code for AI training purposes is fair use and that the Copilot NN is not a derivative work of any code in the training set.

But they explicitly warn you that code that Copilot generates may infringe others' copyright, and that you should use "standard IP scanning tools" to ensure you are not infringing copyright by using the code Copilot spit out.

...Which are clearly conflicting statements.

How can it be fair use to train a dataset whose output is infringing copyright? It's obvious how: it can't be.

That's not clear at all. Training a model on a copyrighted dataset might not be infringing, even if the output of that model is potentially infringing. It's an important question that hasn't yet been resolved, AFAIK.

If Copilot is infringing just by training on copyrighted data, then so is Stable Diffusion.

You - and many others, including Microsoft - are assuming some incredible inability to understand what ML is and does.

Microsoft's position basically distills to laundering:

At the entrance to the black box, there are assets being appropriated in a way that is difficult to criticize. At the exit, the same assets - trivially manipulated - are presented as if they were invented by the box itself.

It doesn't matter what the box is or does. It's clearly deriving its output from its input. An appeal to the complexity of the box as its own moral ground leaves us with nowhere to stand.

You are missing my point.

In your analogy, does copyright infringement occur when the box is created, or does it only occur when the box is used?

This seems like a very important, but unresolved, legal distinction. If the former, then Microsoft is liable. If the latter, then only users of the box are liable.

It's only being made important in order to obfuscate the process.

Imagine I took a hose, and put a sprinkler on one end and left that in my yard; then attached the other end to the spigot of my neighbor's house.

My neighbor comes to me to complain, "You're stealing my water!"

"Oh, but I've tangled the hose so much that even I can't prove where the water is coming from! Furthermore, I've gotten permission from our other neighbor Dave, and you can plainly see that I'm using his water. Maybe some of yours has been mixed in, but the courts have deemed that 'fair use'. After all, I can be responsible for tracking down where every drop of water comes from!"

"You attached the hose right here to my spigot! Water is flowing out of my house into your hose!"

"As I stated before, no one - not even I - can prove whose water is flowing through my hose. You can't compel me to untangle my hoses!"

---

This situation is obvious. I have left my hose tangled in order to dodge responsibility for taking your water. When someone does this with money, it's called "laundering". The only difference here is that it's an asset (copyrighted source code) and not a currency (dollars) being laundered.

It's further complicated by the fact that you can't "take away" source code. But the entire premise of copyright is to pretend that you can: to violate copyright is to use the assets created by someone else, thereby ignoring their arbitrary monopoly.

Fair use allows us to accidentally or incidentally use copyrighted works, but that clearly isn't what Microsoft has done. They are just using all the code they can get their hands on, and laundering it through ML.

I wonder if you'd just answer my question, rather than coming up with another analogy. When does the copyright infringement occur?

Across the whole thing. Tangling the hose did not separate the flow into separate actions.

Imaginary Property is logically inconsistent when you dig in to it.

Care to elaborate on that claim?

Can we get rid of licenses please. They were always meaningless

Only if we get rid of copyright first. Copyleft licenses were originally designed as a second best alternative to abolishing or significantly reforming copyright: https://www.gnu.org/philosophy/freedom-or-copyright.en.html

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