I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark. [LWN.net]

I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark.

Posted Mar 26, 2026 21:28 UTC (Thu) by sionescu (subscriber, #59410)
In reply to: I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark. by Wol
Parent article: Vibe-coded ext4 for OpenBSD

Don't be silly. Copyright and contract law establishes that pretty decidedly.

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I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark.

Posted Mar 26, 2026 22:42 UTC (Thu) by Wol (subscriber, #4433) [Link] (7 responses)

So is my output copyright me? That is NOT clear.

What if I do a Mozart, go to a concert, and write out the score from memory?

What if I do what a lot of musicians do, and extemporise a piece where I have no idea where the inspiration came from? If anywhere? There's been a few lawsuits over that!

Cheers,
Wol

I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark.

Posted Mar 27, 2026 10:37 UTC (Fri) by anselm (subscriber, #2796) [Link] (3 responses)

What if I do what a lot of musicians do, and extemporise a piece where I have no idea where the inspiration came from? If anywhere? There's been a few lawsuits over that!

The general stipulation, according to the Berne Convention, which most civilised countries subscribe to, is that new “works” which you – as a human being, capable of creative expression – produce are yours from the moment you “expressed” them. If other people feel that your work seems to be ripped off from their work, they are free to litigate this after the fact.

As a musician you probably know lots of cool tunes by other people and are polite enough not to try to pass those off as your own. OTOH, it is unlikely for you to know every currently-copyrighted tune in the repertoire in order to be able to avoid those in your own work, which is why there are lawsuits about this sort of thing. Although in fairness it must be said that some of these lawsuits are based on fairly fleeting resemblances of someone's very obscure prior work to someone else's more recent very successful smash hit, and this sometimes carries a whiff of people trying to capitalise on others' success. I presume that adjudicating such cases can be quite tricky.

I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark.

Posted Mar 27, 2026 11:39 UTC (Fri) by Wol (subscriber, #4433) [Link] (2 responses)

So we just have to apply the exact same - FUZZY - rules to AI output.

Which makes me think this vibe-coded driver is actually a derivative of the GPL'd Linux driver ...

Cheers,
Wol

I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark.

Posted Mar 27, 2026 13:19 UTC (Fri) by anselm (subscriber, #2796) [Link]

So we just have to apply the exact same - FUZZY - rules to AI output.

For the time being, anyway, AI output flunks the “creative expression by a human being” prerequisite for being able to be copyrighted at all – see the monkey-selfie case. So whether a copyright on the AI output belongs to the AI, its human prompter, the company which pays the human prompter's salary, or the company which put the AI together in the first place is a moot point because there is no copyright to be allotted to begin with.

This can only change if the legal fundamentals of copyright are amended to declare that AI is capable of “creative expression” in the same way human beings are (unlikely, but what do I know), or else if you convince the court that you have put so much of your own creative expression into the work that it should qualify for copyright on those grounds even though an LLM was also involved in its creation in some ancillary capacity. IOW, the “viber” the code, the less likely it is to be eligible for copyright.

Having said that, if you publish code that your AI has produced (with more or less additional input by you), you still run a risk that that code is substantially similar to some other existing work up to a point where the author of said work could reasonably conclude that they have been ripped off, and a lawsuit ensues. (Obviously, the same thing could happen with code that you have personally written completely from scratch.) With strictly human-authored code, the usual defense is to argue that you (the author) have never actually even seen said work and that any resemblance must therefore be coincidental (possibly you worked off an abstract specification written by somebody who has seen the other work, i.e., “clean-room engineering”, but that is generally considered acceptable). Whether that defense will in fact fly in your particular case is anyone's guess, but the same argument is way harder to make if part of your work has been generated by an LLM that was potentially trained on all the visible source code on the Internet but nobody knows for sure what actually went in there.

I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark.

Posted Mar 27, 2026 13:20 UTC (Fri) by daroc (editor, #160859) [Link]

It is, in a sense, not really relevant whether a judge would or would not determine that the new driver is a derivative of the Linux driver; the point is that the OpenBSD project has no particular wish to be dragged into a complicated, fuzzy, expensive legal battle over this code. And that remains a reasonable desire regardless of the actual legal status of the work.

I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark.

Posted Mar 27, 2026 20:06 UTC (Fri) by wahern (subscriber, #37304) [Link] (2 responses)

> What if I do a Mozart, go to a concert, and write out the score from memory?

As an aside, that reminds me of an interesting bit of history in the famous Sony Betamax US Supreme Court case. In Justice Stevens first draft opinion, he wrote, "It would plainly be unconstitutional to prohibit a person from singing a copyrighted song in the shower or jotting down a copyrighted poem he hears on the radio". That second scenario, transcribing a poem, gets black letter copyright law dead wrong, at least in the sense he meant--his original opinion argued the Copyright Act didn't apply at all to such private, personal use. IIRC, the other justices had to correct him that that is the very definition of copyright infringement, and the definition of infringement per se never distinguished private from commercial. Fair Use would protect a person from liability (and the First Amendment would likely demand it), but it's nonetheless infringement, per se; Fair Use is a *defense* to infringement.

> What if I do what a lot of musicians do, and extemporise a piece where I have no idea where the inspiration came from?

In the US, at least, you generally prove infringement by showing 1) substantial similarity (to copyrighted material) and 2) access to the copyrighted work. It doesn't matter your intentions or whether you even knowingly copied or made a derivative. Access can be proven by showing that, e.g., a work is effectively universally encountered, e.g. Beatles' songs.

As regards AI or anything else, substantial similarity and access are really all you need to show infringement. Showing access in the case of AI is basically a slam dunk for any published work, given large models have been trained on effectively everything that has been digitized. Copyright cases usually turn on the degree of similarity, or other issues, like whether a work was actually protected by copyright, whether copied material was copyrightable, establishing the rights holder, application of Fair Use, etc. But the question whether infringement could occur is the simplest aspect to copyright law, at least in countries where copyright law derives from common law copyright. Your hypotheticals don't actually pose any sort of challenge to the basic logic of infringement in this regard. The keystone to copyright law is the concept of originality, and answering the question of originality is fundamentally just 1) substantial similarity and 2) access.

I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark.

Posted Mar 30, 2026 10:05 UTC (Mon) by kleptog (subscriber, #1183) [Link] (1 responses)

> But the question whether infringement could occur is the simplest aspect to copyright law, at least in countries where copyright law derives from common law copyright.

In contrast, in Civil Law countries "fair use" is not a defense: copyright law defines an enumerated set of exceptions to the exclusive right of reproduction (e.g. Directive 2001/29/EC (Infosec directive)). They are permissions rather than defenses. So singing in the shower is no infringement. Different folks, different strokes.

And rather than open-ended definitions like "derivative work" it grants author the exclusive right to authorize adaptations of their work (e.g., translations, transformations). So it has to be a transformation of the work, not merely "it looks similar".

There is however case law on this: GEMA v. OpenAI (Munich Regional Court, 2024) [1]. In this case: when the users asked OpenAI for the lyrics of a song, it reproduces them (almost) exactly and this was considered copyright infringement.

> According to the Munich Regional Court, reproducing the song lyrics in question in the models does not constitute text and data mining. Text and data mining aims to generate information. However, in the opinion of the Munich Regional Court, the memorization of the lyrics exceeds this generation of information and is therefore not merely text and data mining. The song lyrics, used as training data, were fully integrated into the model’s parameters, which interferes with the authors’ exploitation interests.

So you can legally scrape all the data you want off the internet and train with it. But that doesn't give a blanket free-pass on the output.

Which is why the discussion of the patch should revolve around: how much does it look like memorisation and how much is constrained by the fact that is has to be interoperable (an exception).

[1] https://www.medialaws.eu/gema-v-openai-decision-of-the-mu...

I can't help but feeling like if we're just going to be talking about copyright, we've jumped the shark.

Posted Apr 3, 2026 22:33 UTC (Fri) by Wol (subscriber, #4433) [Link]

> > But the question whether infringement could occur is the simplest aspect to copyright law, at least in countries where copyright law derives from common law copyright.

> In contrast, in Civil Law countries "fair use" is not a defense: copyright law defines an enumerated set of exceptions to the exclusive right of reproduction (e.g. Directive 2001/29/EC (Infosec directive)). They are permissions rather than defenses. So singing in the shower is no infringement. Different folks, different strokes.

What is "common law copyright"? As has been pointed out in assorted comments here and on Groklaw, copyright apparently came into existence as a means of censorship - a "letters patent on printing". So no common law involvement afaik.

And "fair use" is not a defence in "Common Law countries" either - to the best of my knowledge. It's an American invention, and only exists in America. It also only applies afaik to Civil Law, not Criminal Law. In the UK at least, copyright violations can be criminal offences, and an appeal to fair use would be laughed out of court.

Cheers,
Wol