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Comment by bayindirh | Hacker News Reader

IBM published its initial BIOS code in a manual bundled with the PC. Having any knowledge of it, even if you don't implement it verbatim makes you tainted, and makes you guilty in any of the subsequent cases.

This is why Black Box Reverse Engineering Exists.

Same is true for console reverse engineering. No self respecting reverse engineer reads code leaks from official console development. Otherwise they'd be in a legal hot water.

This is serious stuff and there's no blurry line in this.

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There's no legal concept called "tainting". Black boxing is just a means by which you try to make yourself completely irreproachable (for if you haven't seen something, then it's outright impossible that you copied it). It obviously doesn't follow that the converse is true. If it were, musicians would not listen to other's music nor would painters look at other's paintings!

The part that they're trying to avoid is the "access" in "access and substantial similarity"

https://en.wikipedia.org/wiki/Substantial_similarity

(usual factual elements in determining the possibility of a copyright infringement in U.S. law).

I agree with you that it's possible in principle that copyright infringement would not be found even when there was evidence of access. But I think the courts would usually give the defendant a higher burden in that case. You can see in the Wikipedia article that there has been debate about whether access becomes more relevant when the similarity is greater and less relevant when the similarity is less (apparently the current Ninth Circuit standard on that is "no"?).

I agree with all that (that is on actual legal basis, not personal preferences on societal structure), and it’s all the more frustrating to think about the power asymmetry in the era of LLM trained on basically every written material that can be found out there, and in that case oh yes you absolutely can go with it regardless of how verbatim some code they output can be.

The more disturbing thing about LLMs is, it's "fair-use" to scrape everything for them, but it's a liability for the user to use the code, text, whatever.

If it emits a large block of copyrighted material, you'll be again in legal hot water.

Considering even fair-use can be abused (see what GamersNexus is going through) at-will, it looks even more bleaker than at first glance.

That seems totally reasonable to me. A large part of fair use is about the purpose of the use. It seems like a reasonable compromise that what is fair use in one context might not be in another. I can't think of any alternative to fair use that would make more sense.

I think the only unreasonable part is llm companies are implicitly or sometimes explicitly advertizing their products output as being fit for use in other projects. I think that is a false advertising problem.

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