(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2)the nature of the copyrighted work;
(3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4)the effect of the use upon the potential market for or value of the copyrighted work.
It's commercial, they use all of the code to built the model and the original code loses its value because you can get through Copilot. 3 of 4, depending on the original license it's 4 of 4 against fair use
Writing a summarize of a book that incorporates 0.1% of the original book is likely fine under fair use.
If you ask a AI to write 1000 unique summaries of the same book, each including a unique 0.1% copy of the book, what you have is a convoluted copying protocol. Asking the AI to write 1000, or 10000, or 10^infinitive number of fragments won't change the fundamentals of what is being done.
In the end you have to ask the question what a judge and jury will say. In the BitTorrent protocol you split a file into tiny fragments of between 32 kB and 16 MB, and in the beginning people did make the claim that such small fragments could not possible be copyrightable. A 32 kB portion of a 10GB movie is so small that it has no significant relationship with the original work. Courts disagreed and people went to jail.
You'd have to keep feeding the book into the AI for it to do that. It hasn't memorized the entire book, and you can't get the whole book back out of it just by asking questions.
Copilot is basically a single interactive summary of all of github.
I would not currently worry about the threat of someone making a thousand wildly different copilots that deliberately memorize different fragments. Especially because I expect the real copilot to be tuned over time to reduce the number of fragments it picks up. But if such a person emerges, it's clear that they are the problematic actor.
Those question was part of the original discussions that the pirate movement made around 2005. Copyright was viewed as being about a single person copying a work. The person who uploaded shouldn't be allowed to be charged with the same crime, and the site that connected the uploaded and downloaded was just a meeting place.
Lobby organizations for rights owners presented their own theories, one was that concept of "making available" a copyrighted work. They argued that the upload was equally if not more guilty of infringement than the downloaded. They also accused the website owners for facilitating and enabling.
Then came the pirate bay case and a glaring issue struck the pirate movement. If technology can make creative solutions using code to bypass copyright, courts can in turn make creative solutions around law. The law that was used to charge the founders of the pirate bay was originally intended to combat bike bars when those places was used as headquarters for illegal gangs, a far step away from a website hosting files which enable two people on the internet to transfer files.
So we can go around and blame the AI for doing the infringement, or even the researcher who invented the math that created AI, but as with any creative technical solution around copyright we have to ask what creative solutions the lawyers and judges will make.
Yeah I think it'll be an uphill battle for copilot, but I'm not 100% convinced yet. One factor can weigh so much more heavily than the others that they still have a chance with 3/4 against them.
The original license of the code used to train on doesn't really matter to the fair use question, that only matters once the fair use defense fails and the court has to decide a remedy.
Comments
Sounds even worse for Copilot
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2)the nature of the copyrighted work; (3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4)the effect of the use upon the potential market for or value of the copyrighted work.
It's commercial, they use all of the code to built the model and the original code loses its value because you can get through Copilot. 3 of 4, depending on the original license it's 4 of 4 against fair use
That's not what "portion used" means. If you summarize a book then the portion used is <1%, not the entire book.
That's not even remotely true. You might get a fragment or two but you have to rebuild a program from scratch to replace it.
And as far as "nature of the copyrighted work" it's a completely different beast. It's a programming tool instead of whatever code was fed into it.
Only commerciality is a clear mark against it, and that factor is far from decisive by itself.
Writing a summarize of a book that incorporates 0.1% of the original book is likely fine under fair use.
If you ask a AI to write 1000 unique summaries of the same book, each including a unique 0.1% copy of the book, what you have is a convoluted copying protocol. Asking the AI to write 1000, or 10000, or 10^infinitive number of fragments won't change the fundamentals of what is being done.
In the end you have to ask the question what a judge and jury will say. In the BitTorrent protocol you split a file into tiny fragments of between 32 kB and 16 MB, and in the beginning people did make the claim that such small fragments could not possible be copyrightable. A 32 kB portion of a 10GB movie is so small that it has no significant relationship with the original work. Courts disagreed and people went to jail.
You'd have to keep feeding the book into the AI for it to do that. It hasn't memorized the entire book, and you can't get the whole book back out of it just by asking questions.
Copilot is basically a single interactive summary of all of github.
I would not currently worry about the threat of someone making a thousand wildly different copilots that deliberately memorize different fragments. Especially because I expect the real copilot to be tuned over time to reduce the number of fragments it picks up. But if such a person emerges, it's clear that they are the problematic actor.
If you ask the AI to do that, is the AI doing the infringement - or are you the human doing the infringement?
Was the creator of the BitTorrent protocol liable? or the person transmitting the file?
Is Xerox liable for the copy made? or the person using the copier?
Those question was part of the original discussions that the pirate movement made around 2005. Copyright was viewed as being about a single person copying a work. The person who uploaded shouldn't be allowed to be charged with the same crime, and the site that connected the uploaded and downloaded was just a meeting place.
Lobby organizations for rights owners presented their own theories, one was that concept of "making available" a copyrighted work. They argued that the upload was equally if not more guilty of infringement than the downloaded. They also accused the website owners for facilitating and enabling.
Then came the pirate bay case and a glaring issue struck the pirate movement. If technology can make creative solutions using code to bypass copyright, courts can in turn make creative solutions around law. The law that was used to charge the founders of the pirate bay was originally intended to combat bike bars when those places was used as headquarters for illegal gangs, a far step away from a website hosting files which enable two people on the internet to transfer files.
So we can go around and blame the AI for doing the infringement, or even the researcher who invented the math that created AI, but as with any creative technical solution around copyright we have to ask what creative solutions the lawyers and judges will make.
Was the creator of Napster liable or only the person using it?
If Xerox would allow to copy money they would be liable.
Yeah I think it'll be an uphill battle for copilot, but I'm not 100% convinced yet. One factor can weigh so much more heavily than the others that they still have a chance with 3/4 against them.
The original license of the code used to train on doesn't really matter to the fair use question, that only matters once the fair use defense fails and the court has to decide a remedy.