I mean, it's obvious that uploading code requires you license the hosting provider a license to host it (which is not singing over copyright); although feel free to argue that the license doesn't or shouldn't extend to CoPilot usage.
It is a similar case when a single user uploads a movie or game to a pirate torrent site. The site can have a terms-of-use that gives a license to the hosting provider, but naturally the users who upload the content might not have the permission to grant anything to the hosting provider. Depending on how much the hosting provider is or should be aware, hosting the content can still be illegal.
Then, chances are, it's technically illegal to upload those other contributors' code, although if that code is contributed via GitHub itself then the code in the pull request has already been licensed to GH.
It boils down to copyright/DMCA not requiring that hosting providers ensure the code people say they have the rights to is valid at submission, so GitHub now has tons of examples where people themselves lied about the permission when they uploaded code that wasn't theirs, and this will probably be a valid legal defense, at least only for the argument of "does GitHub have the right to use the source in their ML model" (it might really boil down to "are GH's terms vague enough to where nobody thought they the license included the ability to train artificial intelligence").
In the US what it will be is good evidence to support a claim by GitHub that they were an "innocent infringer"--someone who did not know they were infringing and had no reason to believe that they were.
What that does is in the case where the plaintiff seeks statutory damages (which they almost certainly will¹) is lower the lower limit. Statutory damages are normally $750-30000 (amount determined by the court). If a defendant proves they are an innocent infringer that lower limit drops to $200. If the plaintiff can prove that the infringement was "willful" the upper limit goes up to $150000.
Statutory damages are per work infringed, not per infringement, so we aren't talking $200 or so multiplied by the number of copies GitHub distributed. We are talking of a likely award of $200 or so total (plus maybe attorney fees).
¹It is usually way too hard to determine actual monetary damages in cases like this, and actual damages are likely to be quite low anyway, so plaintiffs almost certainly will go for statutory damages.
Can this be said by microsoft? They explicitly chose to not include hidden repositories by their paid customers, likely because they knew that those customers would sue them if proprietary code was used as training data.
Apple seemed to have chosen not to include GPL in the app store for very similar reasons. Their term of service require a permission which is incompatible with the terms of GPL, and knowing that GPL software tend to include multiple rights owners, Apple chose to go the route of not allowing GPL.
And last, authors has requested to have their works removed from the training data. It is part of the lawsuit. Can Microsoft then still claim that they did not know they were infringing?
I believe GitHub would likely be seen as an innocent infringer in that case.
I doubt Microsoft would make that argument. It is more likely they will argue fair use, but by not using closed repositories owned by paying customers, it seems to show that they themselves have doubt about the legal status of using other peoples copyrighted work for copilot.
Or they're worried about leaking secrets, which is a different matter entirely. The amount of copying needed to leak secrets is far lower than the amount needed to commit copyright infringement.
If Copilot is trained on Microsoft's code and accidentally regurgitates a comment, "// for 2024 Xbox", it has done one but not the other.
Copyright infringement doesn't have a fixed size. It depend on context and what kind of information is copied. It demonstrate that copilot has not actually learned how to code (as many people like to claim), but is simply a algorithm for copying code. If it had learned to code like a human it wouldn't divulge secrets.
> 4. License Grant to Us We need the legal right to do things like host Your Content, publish it, and share it. You grant us and our legal successors the right to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case Your Content is something like music or video.
https://docs.github.com/en/site-policy/github-terms/github-t...
I suspect that the main argument will hinge not on the permission though, but rather if the use of code that is copyrighted in an AI model is transformative enough to fall under fair use. Obviously it's to be decided but I would imagine that because it wasn't a human transforming the code and/or hand selecting the code to put into the AI model, that it won't be considered transformative and therefore the use of the code doesn't fall under fair use.
I'm very curious how this case will play out.
To illustrate: GitHub could delete any project they want, and there would be no real recourse for the project's author. That is a service decision that they reserve the right to impose via their TOS. However, if they were to steal code from a user's private repository and violate the license therein, the author could sue for theft of intellectual property.
Again, the LICENSE file in the repo is not the only license for that code. A copyright holder can grant people licenses to their work with or without documentation and with or without that license being accompanied within their work itself.
By uploading code to GitHub, you are asserting that you can legally grant GitHub a license to that code for hosting as described below.
> If you're posting anything you did not create yourself or do not own the rights to, you agree that you are responsible for any Content you post; that you will only submit Content that you have the right to post; and that you will fully comply with any third party licenses relating to Content you post.
Note that this is literally only limited to the provisions set below; uploading to GH doesn't allow them to import or use your code in Windows or the Github codebase or anything like that, doing so would indeed be bound by the license terms you've granted the world via the repo's LICENSE file.
> 4. License Grant to Us We need the legal right to do things like host Your Content, publish it, and share it. You grant us and our legal successors the right to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it, in case Your Content is something like music or video.
https://docs.github.com/en/site-policy/github-terms/github-t...
I think we're over here in our armchairs weirdly assuming that GitHub doesn't have any lawyers working for them. I think they know they're legally in the clear on CoPilot.
I'm not at all a lawyer, but in my opinion we observe that the non-automated version of AI-generated works (the act of making art and prose in the style of an existing copyright work based on the artist's observation of that work) is not illegal. The only thing that AI introduces is automation.
What I can't understand is people feel locked into Github because of the social features. To me they seem the least important part of Github, particularly with so many OSS projects running communities on Discord or Slack.
Hmm...Automated Inference? Automatic Infringement? Maybe we can make a nice backronym out of this.
IANAL, but I think Copilot is not a reasonable thing to include in these services.
So in a way this would void parts of many TOS agreements where you do relicense your User-Generated Content. If we're uploading memes to Facebook, they're gonna have to work out license terms with the copyright holders, not the uploaders.
Suppose person A comitted a crime, that does not mean you are now allowed to profit from someone else's crime
Same will be for GitHub: if people really didn't have the legal authority to bind someone else's code to GitHub's TOS, then GitHub can go after the $x million of users that have uploaded code they shouldn't have.
Ok, but can they go after them in an efficient manner that doesn't end up costing more than it's worth?
Thats doesnt mean. Getty can keep the money