[AaronFriel]

Is there any evidence of Copilot producing substantial (100s of lines) verbatim copies of copyrighted works?

Absent this, I don't think there's a case. The courts have given extraordinarily wide latitude to fair use and ML algorithms are routinely trained on copyrighted works, photos, etc. without a license.

I understand that this feels more personal because it involves our field, but artists and authors have expressed the same sentiment when neural nets began making pictures and sentences.

The question here is no different than "Is GPT-3 an unlicensed, unlawfully created derivative work of millions, if not billions of people?"

No, I'm quite confident it is not.

[shakna]

> Is there any evidence of Copilot producing substantial (100s of lines) verbatim copies of copyrighted works?

It doesn't need to be substantial. In Google v. Oracle a 9-line function was found to be infringing.

[AaronFriel]

If I recall correctly, the nine line question wasn't decided by the supreme court, but the API question was.

The Supreme Court did hold that the 11,500 lines of API code copied verbatim constituted fair use.

https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf

[shakna]

> The Supreme Court did hold that the 11,500 lines of API code copied verbatim constituted fair use.

Yes, because it was _transformative_, in a clear way. Because an API is only an interface. Which makes that part of that decision largely irrelevant to the topic at hand.

> Google’s limited copying of the API is a transformative use. Google copied only what was needed to allow programmers to work in a different compu-ting environment without discarding a portion of a familiar program-ming language. Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and tocreate a platform—the Android platform—that would help achieve and popularize that objective.

> If I recall correctly, the nine line question wasn't decided by the supreme court, but the API question was.

It was already decided earlier, and Google did not contest it, choosing instead to negotiate a zero payment settlement with Oracle over the rangeCheck function. There was no need for the Supreme Court to hear it.

[AaronFriel]

A $0 settlement means there is no binding precedent and signals to me that Oracle's attorneys felt they didn't have a strong argument and a potential for more.

If they felt the nine line function made Google's entire library an unlicensed derivative work, they would have pressed their case.

[shakna]

> A $0 settlement means there is no binding precedent and signals to me that Oracle's attorneys felt they didn't have a strong argument and a potential for more.

That's not the case. It wasn't an out-of-court-settlement, but an agreement about the damages being sought, the court had already found it to be infringing, and that was part of the ruling.

But none of that changes that 9-lines is substantial enough to be infringing. It isn't necessary to be a large body of work.

> If they felt the nine line function made Google's entire library an unlicensed derivative work, they would have pressed their case.

No... It means the rangeCheck function was infringing. The implication you seem to have inferred here wouldn't be inferred by any kind of plagiarism case.

[AaronFriel]

I think we agree then, and appreciate the correction on the lower court settlement.

If Copilot is infringing, I suspect it's correctable (by GitHub) by adding a bloom filter or something like it to filter out verbatim snippets of GPL or other copyleft code. (And this actually sounds like something corporate users would want even if it was entirely fair use because of their intense aversion to the GPL, anyhow.)

[b3morales]

The point of Copilot -- its entire value as a product -- is to produce code that matches the intent and semantics of code that was in the input. In other words, very deliberately not transformative in purpose.

[infogulch]

Why did you choose the standard of "substantial" = "100s of lines"? Especially since we've already seen examples of verbatim output in the dozens of lines range, that choice of standard is rather conveniently just outside what exists so far. If we find a case with 200 lines of verbatim output will you say the only reasonable standard is 1000s of lines?

I don't think your argument is as strong as you're making it out to be.

[AaronFriel]

Just a fairly arbitrary number. It's easy to produce a few lines from memory, up to 10s of lines and that's "obviously" fair use. I would be surprised if many of haven't inadvertently "copied" some GPL code in this way!

This goes to the "substantial" test for fair use. Clips from a film can contain core plot points, quotes from a book can contain vital passages to understanding a character, screen captures and scrapes of a website can contain huge amounts of textual detail, but depending on the four factors for fair use, still be fair use. (There have been exceptions though.)

The reaction on Hacker News to a machine producing code trained on their works is no different than the reactions artists and writers have had to other ML models. I suspect many of us are biased because it strikes at what we do and we think that our copyrights (because we have so many neat licenses) are special. They are not.

I think it would need to get to that level of "Copilot will emit a kernel module" before it's not obviously fair use.

After all, Google Books will happily convey to me whole pages from copyrighted works, page after page after page.

https://www.google.com/books/edition/Capital_in_the_Twenty_F...

[jcelerier]

> Just a fairly arbitrary number. It's easy to produce a few lines from memory, up to 10s of lines and that's "obviously" fair use.

it's anything but obvious. https://www.copyright.gov/fair-use/

> there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

9 lines of very run-of-the-mill code in Oracle / Google weren't considered fair use.

[BlueTemplar]

A big difference is that software is both is and isn't an artistic work.