Re:GitHub Copilot is not infringing copyright
by eesmith on Monday July 05, 2021 @10:18AM
(#27738254)
There are no thought police here.
In the US, copyright may include the choice of variable names, the organization of the code into modules and functions, and other aspects which where there are the creative choices that may be protected under copyright law.
> the court presented a three-step test to determine substantial similarity, abstraction-filtration-comparison. This process is based on other previously established copyright principles of merger, scenes a faire, and the public domain.[1] In this test, the court must first determine the allegedly infringed program's constituent structural parts. Then, the parts are filtered to extract any non-protected elements. Non-protected elements include: elements made for efficiency (i.e. elements with a limited number of ways it can be expressed and thus incidental to the idea), elements dictated by external factors (i.e. standard techniques), and design elements taken from the public domain. Any of these non-protected elements are thrown out and the remaining elements are compared with the allegedly infringing program's elements to determine substantial similarity.
Emphasis mine. This specifically highlights that your example ('only so many ways you can express an algorithm') is not protected under US copyright law.
The originality requirement only applies to other aspects of the generated code, which in this case would include the comments that Copilot generated, and which clearly are not required for the algorithm to work.
For thought police like you describe, look to patent law.
In the US, copyright may include the choice of variable names, the organization of the code into modules and functions, and other aspects which where there are the creative choices that may be protected under copyright law.
The relevant process is described at https://en.wikipedia.org/wiki/Abstraction-Filtration-Compari... , which comes from the court case at https://en.wikipedia.org/wiki/Computer_Associates_Internatio.... nearly 30 years ago:
> the court presented a three-step test to determine substantial similarity, abstraction-filtration-comparison. This process is based on other previously established copyright principles of merger, scenes a faire, and the public domain.[1] In this test, the court must first determine the allegedly infringed program's constituent structural parts. Then, the parts are filtered to extract any non-protected elements. Non-protected elements include: elements made for efficiency (i.e. elements with a limited number of ways it can be expressed and thus incidental to the idea), elements dictated by external factors (i.e. standard techniques), and design elements taken from the public domain. Any of these non-protected elements are thrown out and the remaining elements are compared with the allegedly infringing program's elements to determine substantial similarity.
Emphasis mine. This specifically highlights that your example ('only so many ways you can express an algorithm') is not protected under US copyright law.
The originality requirement only applies to other aspects of the generated code, which in this case would include the comments that Copilot generated, and which clearly are not required for the algorithm to work.
For thought police like you describe, look to patent law.