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Comment by joshka | Hacker News Reader

> That's not actually the case at hand here - the agents were given the original source to reference: https://github.com/gitbutlerapp/grit/blob/main/AGENTS.md#sou...

yeah fair - the "The canonical Git source code we're targeting to replicate the functionality of is in the git/ subdirectory." part makes this hard to argue against.

> To the extent the resulting work is a derivative of the test suite it is possibly infringing

It's this bit that I have a problem with. If I run the test, it fails and reports a failure. Now I write code and run the test again. What is the theory there that code that I wrote infringes.

Simplify this down:

Assume the following is copyrighted:

    fn test_sum() {
        assert_eq!(sum(1, 1), 2);
    }

Does writing the following code:

    fn sum(a: u8, b: u8) {
        a + b
    }

infringe on the test copyright?

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Writing

    fn sum(a: u8, b: u8) {
        a + b
    }

Doesn't infringe upon copyright period, because there's no creative element in that work.

Imagine a more substantial example though. Perhaps you have a test that checks that some file written in a binary format is correct, and gives names (creative elements) to each field of the format that it prints when you mess up the field, and has comments describing why the bytes are laid out like they are (the comments being copyrightable even if the facts they describe aren't), and the LLM copies those field names and comments verbatim... Now it's quite likely that the LLMs work is a derivative of the test suite.

> Doesn't infringe upon copyright period, because there's no creative element in that work.

There's likely a threshold at some point. It's helpful to look at a minima and then continue from there though.

I'm curious if there's case law that supports your assertions here?

For that assertion in particular I believe I'm practically parroting a ruling by the district court in Oracle vs Google about some extremely simple Java functions that Oracle claimed Google copied. Though I can't say I checked to make sure I'm remembering right.

You're recalling it right, but there's a nice quote from Judge Alsup in that case that talks about this exact situation:

> “So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification...”

Here given that this is rust and the original expression is C, the implementations cannot be the same by definition.

That's essentially the same thing as modding a game, though. I know there have been lawsuits to stop modding, but I don't think any were successful.

I haven't followed any relevant cases but I would be surprised if there's any serious dispute that the common methods of modding games generally create derivative works. I think the dispute would be downstream of that as to whether or not the mods are covered by fair use.

I'd challenge you here to think about this in terms of the legal aspects rather than reaching specifically for similarities as similar is often meaningless in the law or contracts when specific acts are codified rather than generalized ones.

I'd say what we're talking about here is probably a fair bit different to modding a game in most aspects.

If you did it in a loop until the test passed, maybe?

Your result is essentially impossible without the original. With ffmpeg, your result does not depend on ffmpeg specifically - you can use any video creation tool.

Repetition isn't really a factor in deciding whether something is infringing or not - check the copyright law in your jurisdiction. Here if you look specifically at what an LLM's sampling stage is doing, it's choosing non infringing tokens (i.e. rust source code) over infringing ones (i.e. C source code). So it's making an intentional choice to do something similar rather than creating something that has the same expression. That doesn't seem like it's copyright infringement to me.

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