So GitHub copilot… correct me if I’m wrong here: it was trained on open source (including GPLed & AGPLed code?) by *spit* Elon Musk’s OpenAI and now it regurgitates said code and this doesn’t violate the GPL/AGPL because…?

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@realcaseyrollins I don’t believe we can speak of “ordinarily” at this point :) (There is no case law to speak of.)

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@aral what the heck is so different about this instance that we would need a new legal precedent for this?

@realcaseyrollins Because it uses machine learning. So Microsoft will argue it’s fair use (based on properties unique to machine learning) and I’d argue, for example, that it is not different to any other use and should come under the terms of the license as a derivative.

@aral Oh I didn't even know there was a question as to whether or not it was derivative. Has anyone argued otherwise? Other than #Microsoft perhaps

@realcaseyrollins No idea. They just released it yesterday and I only saw it today :)

@realcaseyrollins @aral There is now some case law that specifies machine generated "inventions" are not patentable with the ai as inventor, and that violations would follow the "operator" of the ai. Is the output of copilot a "derivative" work, or a "product" of Microsoft is yet to be clearly determined. However, if it is a derivative work, Microsoft would be liable as the "operator". It sounds like a massive undisclosed risk that should have been in their SEC filings...

@realcaseyrollins @aral this seems fertile ground for class action lawyers to come out like sharks smelling blood in the water. The potential liability under existing and crazy US copyright law may well be in the trillions, though a likely class action may well be likely settled for mere billions, and that means easily a billion for the lawyers involved alone.

@realcaseyrollins @aral of course that requires copilot to be a derived work, but if validatable in court, the liability is Microsofts. For the Tenacious Developer that is a member of this class, that means Microsoft will have to pay their rent ;). But more likely, given how long and stalled a huge class action typically is, it may mean if Microsoft does lose they will be paying their social security instead...

@realcaseyrollins @aral surely there must be an ambitious ambulance chaser out there with some spare time who likes playing the long odds, especially given the potential payout. If so, I would be happy to participate as an initial member of such a class to help the scoundrel establish legal standing to sue. Of course German lawyers don't even need copyright holder to participate under German law. Time to get popcorn...

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