Software Freedom Conservancy: Give Up GitHub: The Time Has Come!

Maybe your annoyance with such discourse comes from lacking the usage of the https://en.wikipedia.org/wiki/Principle_of_charity -- a principle that is very useful in a respectful and beneficial dialogue. "Be strict on what you produce and lax on what you consume", like Unix :-) ...

It depends. Making a pun with the name "Fox News" is what you wrote. Calling it "Murdoch TV" is an extremely important reminder that it's "free" only because _you_ are the product - without making fun of the name or smearing anything.

I find "Musktown" closer to the latter.

The message ID is usually in the URL, but (at least nowadays) there's usually a "Reply to thread" Button.

> tracking status of things

That's kind of a "you" problem. Some people do, and some people don't. And those who don't can usually follow better through the WebUI and use the aforementioned Reply to thread button

> mountains of spam

Reject text/html and you don't have spam.

> corporate email servers mangling plain text emails

What in the everloving bleep?! No mailserver should modify an emails content unless there's good reason (like a virus) because that will mess up PGP or – in corpo world – S/MIME signatures, so I somewhat doubt there's a lot of this behaviour.

Which search engines like Google will love. It (and I'm quite happy with this) makes it legal for them to have huge search databases.

But there's a very big difference between using that mined data to direct people back to the original source document, and outputting something based on that source (essentially creating a derived document) to be passed on to a third party without the first party knowing anything about it.

Maybe the grounds for feeling that way have changed, but I still feel that actually *using* the output from Copilot for pretty much anything other than study is a very dangerous occupation, and maybe even using it for study ...

Cheers,
Wol

As an example, if you have a neural network that identifies the music style of an input song, I understand you may use copyrighted stuff for training your system. In real world usage, a user may input some song, and your system may respond "that's likely country music". But the inverse, where user input is "country music" and your system starts giving away excerpts of copyright protected songs...

Copyleft only exists because copyright exists. I think we can agree on this point.

People use copyleft licenses because they want their work to remain free.

IF copyright didn't exist and all software source was public domain, we'd all be very glad that copilot was there to help writing code that would be free.

However copyright does exist, and copilot is going to be used mostly to write copyrighted proprietary software, using copyleft software. This is clearly something that the authors of copyleft software didn't want.

Not using github is not a solution because anyone (including microsoft itself) has every right to just mirror whatever on github.

Now you claim (and have an economical interest in claiming so) that copilot does not infringe. However you aren't a judge. And while I do agree that creating the model does not infringe, the output generated from the model is another thing entirely, and that might be infringing.

In any case people who wrote GPL code know that their work is going to be used in proprietary code, which goes against the license and against their wishes when they chose that license.

You are just betting that a future lawsuit will say that you are right. But even if you are wrong it will be the users of copilot being in violation, so microsoft is betting that it will be very hard to find who to sue and no lawsuit will ever happen.

To respond to your comment, no, having your license terms respected is not "bleak". Microsoft would be very free to train copilot on their internal code but didn't… don't you find that interesting? Instead they chose to build copilot on other people's works, which are indeed copyrighted.

The law to train a ML model doesn't say anything about using that model to generate new content.

I have very hard time seeing that repeating whenever someone discovers there was a few kilobytes of non-free code in the input.

How is this different to anyone looking at copylefted code in Github for inspiration to solve a problem they're having, and then using that idea, written in their own way, in their own program? Copyright is focussed on the copying of expression, not the copying of ideas. As long as you can argue the model is copying the idea, not the expression, copyright is completely irrelevant.

The whole issue comes down to the distinction we've made in copyright law between what compilers do (which is considered pure manipulation having no effect on copyright), and what people do (which is looking at pieces of source code to learn and use that to make more source code). Isn't the rule of thumb: if you're copying from one source it's plagiarism, if you're copying from two it's research?

I don't really see how a model built on examining lots of source, some copylefted, producing code reduces the value of the input code. If a computer model can actually come up with code that does something you've typed, perhaps it wasn't so original and it's the kind of thing we want to automate away anyway.

TBH, the idea of a model writing code for you to solve a problem sounds nice. But what would be really valuable is something that could see where many programs are solving a similar problem, that it makes a library for that and refactors all the other programs to use that.

Nobody ever claimed that.

The copyright violation would have to be in the parts that remain to be filled in once you have copied the parts not protected by copyright—for example:

- the purpose ("what the code does", for example "reciprocal square root")
- how it does it, especially if it is the best or one of a limited number of good ways to do it (so, yes, perhaps counterintuitively the expression in a particularly clever code snippet might enjoy less protection)
- whatever is dictated by external factors (the magic numbers in the reciprocal square root code? There are probably other reasons why they are not protected, but they also aren't because they need to be exactly those numbers to work, as dictated by a mathematical law); this also applies to what the coding style dictates

So, in practice, for a small enough snippet that such an accident is plausible, what might remain
and what must pass the originality threshold to attain copyright protection is things like:

- variable names—but if they are "normal" and not very creative (using "i" for a loop counter or "number" for a number), it doesn't contribute a whole lot
- Stylistic things that do not come directly from coding style or the way things are commonly done. How you group your code. Perhaps the order of some lines of code, where you insert blank lines (in cases where it would be unlikely for two coders to do it the same way), etc.
- Comments. Short, purely technically descriptive snippers are probably unlikely alone to meet the originality threshold, but if you come up with enough similar technical prose, even in the form of multiple short comments that alone aren't original enough, I think this might be your best bet of violating copyright.

The threshold for originality (in the US) is "low", but not nonexistent. Some things that have been deemed to not meet the threshold are (and remember that with code you need to meet it with what is left once you remove the substantial unprotected elements):

- Simple enough logos, even when there clearly is *some* creativity involved: https://en.wikipedia.org/wiki/Threshold_of_originality#/m...
- Blank forms
- Typefaces
- This vodka bottle: https://en.wikipedia.org/wiki/Threshold_of_originality#/m...

Of course, even if the model *is* a derivative work, you still can't sue GitHub for creating the model, because the GPL places no restrictions on creating derivative works unless you distribute them to other people. You could allege an AGPL violation, if you can find a specific AGPL codebase and prove that GitHub actually used it as an input, but that's much harder. Or you can allege that the output of the model is a derivative work, at which point you don't have to worry about whether the model itself is a derivative work (copyright law doesn't care), but then you really do need to identify specific inputs that are "substantially similar" to one particular output, and that might be difficult as well.

Failure to publish is another major problem, because I believe most copyright laws apply to *legally* *published* work, from *the date of publication*.

There are plenty of cases of unpublished works being kept out of the public eye, and I can think of at least one where somebody published excerpts of a 200-yr-old work. But because he owned the original, nobody could get their hands on the complete work.

Another famous example of this sort of thing is Queen Victoria's diaries. She published the early ones unexpurgated. But when she died, her daughter and literary executor published "sanitised" and heavily edited versions, destroying the originals. Her nephew, George V, was horrified at such vandalism but was powerless. So the later diaries are missing roughly 2/3rds their original content :-(

But certainly as far as Co-Pilot is concerned, I think your references to indices and concordances misses the point. They may be new works of scholarship, but they are intended to direct you back to the original. Co-Pilot, it seems, hides the original from you so are "quoting blind" if you use its output.

Cheers,
Wol

No they do not. They have not claimed that. They will not claim that. This straw man is *ridiculous* and seeing it repeated so often makes me want to scream.

The fundamental assertion that they're implicitly making by publishing copilot is that output from copilot is not automatically, ipso facto, an infringement of the license on its training data.

You[0] seem to be claiming that this further implies an assertion that the output from copilot is automatically, ipso facto, not an infringement of the license on its training data. Rather like claiming that "not all people are men" implies "all people are not men".

But not only are Github/MS not saying that, they are saying the opposite. In fact, what they *actually* say is this:

> You should take the same precautions as you would with any code you write that uses material you did not independently originate.
> These include rigorous testing, *IP scanning*, and checking for security vulnerabilities
(emphasis mine)

[0] In the plural sense. I imagine you *personally* have just been misled by the people making up this straw man, since it's so common.

2. the answer to
> Are the monkeys inevitably guilty of copyright violation?

is: the monkeys are never guilty (monkeys are not people, only people can be guilty)... but if you copy, distribute, or perform the work received from the monkeys in public, then you are.

3. clarifying the last part: if the monkeys (or the ML model) produces a copyrightable piece of a copyrighted work, then the monkeys are nothing else than another medium where the copyrightable work is fixed. The monkeys, or the ML model, are just like an HD or a DVD-RW or a physical, printed book.

4. so: if a random number generator generates the number that when represented in binary is the same number as the image of a Blu-Ray of "Avengers: Endgame", this does ABSOLUTELY NOTHING over the copyright of the work. You can't burn it to a BR and play it in a public setting. You can't even copy it. Only Sony/Marvel and their licensees can.