That's irrelevant to the case being made against GitHub, which is why it is addressed in the decision.
> Just a few weeks ago a very similar suit for stable diffusion had its motion to dismiss copyright infringement claims denied.
The case against Midjourney, SAI, and RunwayML is based on a very different legal theory -- it is a simple direct copyright violation case ("they copied our work onto their servers and used it to train models") whereas the Copilot case (the copyright part of it) is a DMCA case claiming that Copilot removes copyright information management information.
It's not really surprising that the Copilot case was easier to dispose of without trial; it was a big stretch that had the advantage for the plaintiffs that, were it allowed to go forward, it doesn't admit a fair use defense the way a traditional direct copyright violation case does.
They aren't really "similar" except that both are lawsuits against AI service/model providers that rest some subset of their claims on some part of Title 17 of the US Code.
Substituting a human for a computer changes some aspects of the situation (e.g., the LLM cannot hold copyright over the works it creates), but it's useful because it leaves the real human's actions unchanged. However, for more complex questions that interact with things like work-for-hire contract law, you may need to take a more sophisticated approach.
Beyond that, it seems like you'd need a highly expressive language for this to work well. You can effectively scan for plagiarism in English because it's so varied that it really is an outlier to see several lines of text that are identical to each other from different sources, but maybe it's not that strange to see entirely identical files, or at least very similar code, in totally distinct, say, React or Ruby-on-Rails projects.
I think of code methodologies as more like construction techniques. Maybe some pieces and parts are patentable, and some can even be productized as tools, but a lot of it is just convention and technique.
But frankly one could ask whether this would be closer to 'Sampling'...
Presumably OpenAI would be committing copyright infringement by even displaying that code to you, if it does not have a license to do so.
Might get out of it depending on specifics but you'd be a party.
OTOH, I -thought?- that part of at least enterprise Copilot was that they would defend in such cases.