[HN Gopher] Microsoft want court to toss lawsuit accusing them o...
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Microsoft want court to toss lawsuit accusing them of abusing open-
source code
Author : ThaDood
Score : 98 points
Date : 2023-02-10 14:47 UTC (8 hours ago)
(HTM) web link (www.reuters.com)
(TXT) w3m dump (www.reuters.com)
| atomicUpdate wrote:
| Why does the post title omit OpenAI, so it no longer matches the
| article's title?
|
| > OpenAI, Microsoft want court to toss lawsuit accusing them of
| abusing open-source code
| Dylan16807 wrote:
| Character limit.
| croes wrote:
| Is it still Fair Use if you make money with it?
| pdonis wrote:
| Not necessarily. For example, you can make money by writing a
| review of a book that includes quotes from the book; that is
| considered fair use. But if you make money by publishing a book
| that consists solely of quotes from other books that others
| have copyrighted, on the grounds that this assembly of quotes
| from other books might be useful to future authors, that would
| _not_ be fair use.
|
| To me, the latter scenario is much closer to what Github is
| doing with Copilot, which is one of the things the plaintiffs
| are alleging violates open source licenses.
| [deleted]
| henryfjordan wrote:
| Making money from the work is one of the factors for Fair Use
| but it is not an automatic-fail kind of situation. A judge/jury
| would need to hear the facts and consider all the factors.
|
| Here's a good link explaining the Fair Use test:
| https://copyright.columbia.edu/basics/fair-use.html
| croes wrote:
| But it's pretty clear from the start that Copilot is neither
| criticism, comment, news reporting, teaching, scholarship,
| nor research which are covered by fair use.
| orra wrote:
| You're forgetting transformative use. Think about search
| engines.
| VanTheBrand wrote:
| Right but a search engine takes in web pages and outputs
| search. copilot takes in code and outputs code.
| henryfjordan wrote:
| The law on fair use says "such as" those categories you
| list but it is not read that you MUST be in one of those
| categories to enjoy fair-use. In fact, it goes on in the
| next sentence to say you need to consider the 4 factor test
| in every case.
|
| > The fair use of a copyrighted work ... for purposes such
| as criticism, comment, news reporting, teaching (including
| multiple copies for classroom use), scholarship, or
| research, is not an infringement of copyright. In
| determining whether the use made of a work in any
| particular case is a fair use the factors to be considered
| shall include ...
|
| https://www.law.cornell.edu/uscode/text/17/107
| croes wrote:
| 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
| henryfjordan wrote:
| 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.
| Dylan16807 wrote:
| > they use all of the code to built the model
|
| That's not what "portion used" means. If you summarize a
| book then the portion used is <1%, not the entire book.
|
| > the original code loses its value because you can get
| through Copilot
|
| 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.
| nerdponx wrote:
| In the USA, yes. For example, the unanimous ruling in Campbell
| v. Acuff-Rose Music, Inc. determined that parody is fair use,
| even if the parody is of a commercial nature:
|
| > Held: 2 Live Crew's commercial parody may be a fair use
| within the meaning of SS 107. Pp. 574-594.
|
| The ruling states explicitly that commercial usage can be a
| determining factor in determining whether usage is fair or not,
| but that it does not in and of itself make the use "unfair".
|
| https://supreme.justia.com/cases/federal/us/510/569/
| klyrs wrote:
| I don't think that question is particularly relevant to the
| case. A newspaper can publish, for profit, a book review which
| quotes excerpts. As far as I understand it, the case hinges on
| the distribution of major portions of copyrighted works and
| derivatives thereof, in violation of their licenses. Likewise,
| see Aaron Swartz, sci-hub, etc -- distribution of copyrighted
| works need not be for profit to be a violation.
| silverwasthere wrote:
| https://en.m.wikipedia.org/wiki/Licence_laundering
|
| Seems pretty obvious to me but we'll see how it goes in the
| court.
| [deleted]
| ThaDood wrote:
| Huh, I always had this concept in my mind but never knew it
| actually had a phrase with some legal precedent.
| User23 wrote:
| Breaking news: litigant wants to win lawsuit.
|
| They probably didn't rigorously track the licensing issue, but
| I'm pretty sure training a LLM is completely acceptable use of
| source under Freely licensed code. It would be somewhat amusing
| though if CoPilot is forced to spit out the license for every
| piece of code used to develop the derivative work, along with
| copyright notices and whatever else the licenses may require.
| jen20 wrote:
| As you describe, a perfectly acceptable outcome is that
| licenses are respected with respect to attribution and where
| necessary propagation to derived works.
| jimmaswell wrote:
| Reading a source then writing your own code with the same
| ideas in mind isn't a derived work and shouldn't need
| attribution. It will be a crying shame if Copilot output is
| mired in unwarranted legal trouble with how much of a
| productivity booster it is.
| velcrovan wrote:
| When a computer is fed human-developed code and then
| reproduces it verbatim elsewhere (which copilot has been
| shown to do) it is called "copying".
| silverwasthere wrote:
| I thought everyone knew the person that reads the code can
| only describe it to someone else who writes the new code.
| Having the same party do it would make it a copy, if the
| purpose and construction is the same.
|
| At least that's how compaq beat IBM and started all this
| monkey business.
|
| Granted I could be full of it, I wasn't alive yet.
| davorak wrote:
| > I thought everyone knew the person that reads the code
| can only describe it to someone else who writes the new
| code. Having the same party do it would make it a copy,
| if the purpose and construction is the same.
|
| The same party can do it and not have it count as a copy,
| but it could be a copy if the party was not careful. So a
| company that wants to avoid potentially being sued will
| not allow one party to do both. So jimmaswell is correct
| to my understanding but a company may want extra legal
| armor/padding.
| jen20 wrote:
| Well that is indeed the legal question to be answered. The
| post I replied to asserted the derivative nature.
|
| The ability to copyright-launder via an API will lead to
| some interesting consequences for sure: I wouldn't want to
| be elastic search or mongodb relying on source-available
| licensing if it comes about.
| jimmaswell wrote:
| I think a more appropriate IP model for code is closer to
| how patents work. The code must be filed and becomes
| available to/usable by the public after the protection
| expires.
| jen20 wrote:
| Maybe that is more appropriate but it is not the reality
| of today.
| AlexandrB wrote:
| All intellectual property law is a tradeoff between
| efficiency and monetizability. It would be a huge
| productivity booster to copy/paste source code wholesale as
| well. Or to implement existing patents instead of having to
| work around them. But then the market for software would
| look very different than it does today.
|
| If that's the future people want, that's fine - but
| everyone should play by the same rules.
| joxel wrote:
| [flagged]
| AlexandrB wrote:
| And the people who decided to go ahead with implementing
| it probably need help filing a motion in court. Are you
| just railing against specialization?
| joxel wrote:
| Yeah because thinking its ridiculous people who don't
| know how to open email decide the future of software
| cases is railing against specialization :/
| candiddevmike wrote:
| That's the point though, if you recreate the code you need to
| follow it's license, which typically involves some kind of
| attribution. Copilot should be forced to spit out a list of all
| licenses it referenced. That would actually be pretty valuable.
| randombits0 wrote:
| Hold on, there is a difference between "recreate" and "copy".
| Copyright only applies to creative expressions. If the code
| is trivially "recreated", it's not particularly creative.
|
| Copyrighted content can be used without the holder's
| permission under "Fair Use".
|
| Don't assume all code can be copyrighted. Purely functional
| expressions are not copyrightable. Code is math.
|
| There's a lot here to unpack.
| [deleted]
| User23 wrote:
| By the Curry-Howard correspondence no code should be able
| to be copyrighted since every program is a formal
| mathematical proof. However judges aren't usually
| mathematicians with a background in Computing Science so
| it's of little consequence.
| henryfjordan wrote:
| No algorithm should be copyright-able but your expression
| of that algorithm should. Programming language choice,
| variable names, comments, code-style, etc are all
| creative expressions which are relatively independent of
| the underlying math.
| kosievdmerwe wrote:
| Furthermore, the language model itself is clearly a for
| profit derivative work and so would be subject to the wants
| of the original copyright owners and it is clearly a
| derivative work since without the inputs of the copyrighted
| code in its training it would be different and likely less
| effective.
|
| There's a more interesting question about the copyright
| status of the code it outputs, since the language model is
| sort of like a compiler, but also not like a compiler since
| the output is based on other people's copyrighted code.
|
| I feel a lot of people get caught up on the output code and
| completely ignore the fact that copilot itself is likely a
| massive copyright violation.
| henryfjordan wrote:
| It is absolutely not clear that an ML model is a derivative
| work. It might be for-profit but there's good arguments
| that it is incredibly transformative, and that each
| individual work the model is trained on is minimally
| important to the model (if you trained the model on every
| other document in the training set except the one being
| sued over, the model would perform very similarly). These
| are factors which will weigh against the copyright holder.
| supriyo-biswas wrote:
| To add on to this discussion, the scale matters too, and
| this is something many people tend not to factor in.
|
| Copilot breaks the assumptions about the lossy nature of
| human memorization, so a lawsuit challenging the merits of
| the activity is at least warranted.
| wonks wrote:
| Wait, are you saying that there is legal precedent for training
| an LLM with open source code to generate proprietary code?
| User23 wrote:
| That depends. Odds are good some GPL code slipped in
| somewhere, so using the GPL for the whole thing is an option
| in that case. And sure you can derive proprietary code from
| GPL code, so long as you don't publish binaries.
| shagie wrote:
| I would point to the Oracle vs. Google Supreme Court
| decision.
|
| https://www.cnn.com/2021/04/05/tech/google-oracle-supreme-
| co...
|
| > Writing for the Court, Breyer said that while it is
| difficult to apply traditional copyright concepts in the
| context of software programming, Google copied "only what
| was needed to allow users to put their accrued talents to
| work in a new and transformative program."
|
| > A world where Oracle was allowed to enforce a copyright
| claim, Breyer added, "would risk harm to the public"
| because it would establish Oracle as a new gatekeeper for
| software code others wanted to use.
|
| The fair use tests that were used in the SCOTUS case, I
| believe, would fall on the side of "developers using GPT or
| Copilot to generate code do not generate substantial parts
| of the code and are below the amount of work needed to show
| sufficient creativity in writing it."
|
| The example is
| https://horstmann.com/unblog/2010-11-15/NodePolicyImpl.html
|
| If that is not a copyright violation and considered to be
| fair use, then the code generated by GPT or Copilot likely
| also falls in the the same bucket.
|
| I don't necessarily agree with that, but that's my reading
| of the tea leaves.
| spookie wrote:
| I'm not so sure on whether or not it's completely acceptable to
| train a LLM under GPL, for example. To bring the point home,
| reverse engineering efforts follow the clean-room design
| technique. This is done in an effort to not infringe
| copyrights.
|
| Would love to see this being done on decompiled proprietary
| code. Training done on it. And released into the wild.
|
| But the amount of data necessary, and computing power to do it
| might not be available for the common person.
| mapme wrote:
| Is there a OSS license that specifically precludes its use in
| LLMs or effectively does so?
| colejohnson66 wrote:
| The thing about fair use is that there's nothing a license can
| do to prevent it. After all, that's the whole _point_ of fair
| use: to say that there's valid reasons to use pieces of IP
| without regards to their licenses.
|
| So, if the courts find in Microsoft and OpenAI's favor (which
| remains to be seen despite the many armchair lawyers here),
| your license would mean jack squat.
| jsnell wrote:
| Is there anything out of the ordinary here? Doesn't basically
| every lawsuit have the defendant file a motion to dismiss, based
| on any halfway plausible reason?
| lostmsu wrote:
| Perhaps a meta discussion is needed here regarding the
| potential ability to dismiss a lawsuit in a scenario like this
| where everyone understands the existence of a legal problem in
| the need of future guidance.
| TheRealPomax wrote:
| There is not. This is standard operating procedure. Getting a
| case thrown saves _so_ much money that it is entirely worth
| having your legal team try to make it happen before the real
| work starts.
| klyrs wrote:
| To those interested in watching the particulars of this case,
| this is not a surprising development. But the play-by-play is
| interesting. Sports announcers manage to talk _continuously_
| during a game, and don 't sit there silently and say "team A
| won with 20 points to team B's 5 points, what a game" at the
| very end. Personally, I don't care for the sportsguy blathering
| about a game nor the end results, and prefer to read about
| legal shenanigans.
| nimbius wrote:
| it was a successful strategy for VMWare when approached by a
| German developer about improper licensing for his open source
| code. VMWare managed to get the original case tossed on a
| technicality, as well as the appeal, which bought them enough
| time to drop the linux code entirely and avoid a discovery
| where they would most certainly be found in violation.
|
| https://www.zdnet.com/article/linux-developer-abandons-vmwar...
|
| https://www.zdnet.com/article/vmware-sued-for-failure-to-com...
|
| https://en.wikipedia.org/wiki/Vmlinux
| AlbertCory wrote:
| Not only is the answer "no, the defendant _always_ files a
| motion to dismiss, " it's a good strategy because it forces the
| plaintiff to say something on the record.
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