The way I see it, if you would use Copilot to completely (or largely) reproduce an existing work (software), then you would be infringing copyright. This is similar to using an AI to largely replicate a piece of music.

If you are using it to mix a snippet of code (from a sufficiently large code base) into a large code base of your own, then you are just remixing. That is not infringement. In music, there are entire genres based on remixing. You could even take it a step further and ask yourself: what is not a remix?

Sisqó had to settle with Ricky Martin for quoting "Living the vida loca", then there's the debacle around Katy Perry's Dark Horse...

Point is songwriters absolutely get litigious over reproducing small portions of their IP.

complex.com/music/majority-sisqo-thong-song-publishing-owned-by-writer-livin-la-vida-loca

huffpost.com/entry/katy-perry-dark-horse-lawsuit-payment_n_5d43d825e4b0acb57fca3ff2

factmag.com/2016/06/25/sampling-hip-hop-copyright/

Yeah, I've heard about some of those cases. It's surprising how far copyright can be stretched sometimes.

What's more surprising is to see copyleft advocates positioned so strongly in favour of giving copyright that kind of reach. I think that in a different context, some of the cases you refer to would be used by these same copyleft supporters as examples of why copyright needs to be more weakly enforced, not more strongly.

At the very least it should be consistent. If Microsoft can sue me for something trivial that probably shouldn't be illegal but is, then I can sue them for something trivial that probably shouldn't be illegal but is.

If I don't need your permission to do something with your work, then the conditions under which that permission is granted lose their force.

> Unless you are Github, in which case having your AI copy code vertabim is ok?

You have to filter out any non-copyrightable elements before you do the substantial similarity analysis. For code, that means removing non-expressive elements like arithmetic or boolean expressions, looping, recursion, conditionals, etc. APIs are not copyrightable under the recent Supreme Court holding in Google v. Oracle.

How much of your code is actually left after filtration?

You’re basically arguing that whole books aren’t copyrightable because after you filter out all the words which aren’t individually copyrightable there isn’t anything left to copyright. Which obviously doesn’t make any sense.

The tests exist as a way of determining if someone did the action of copying which is the important thing at the core of it. And in this case the facts aren’t really in dispute, it’s whether what GH is doing counts as copying.

If you had a really really good memory and remembered almost exactly how your former company implemented something and when faced with a similar problem unknowingly produced similar code. It’s iffy as to whether this is copying. Because it really probably isn’t — you’re allowed to learn from copyrighted works — but the courts aren’t omniscient and when presented with the code they very well may rule that copying was more likely than not.

But we are omniscient in this case so we don’t really need the tests. Is what GH does more like copying or learning? This isn’t something that can be determined purely from the output of the tool.

Code elements like conditionals, loops, arithmetic or Boolean expressions, assignment statements, etc. are not copyrightable, but not because they’re insignificant (like individual words in a novel), but because they’re useful articles. Copyright protects expression, not utility, which is the domain of patent law.

That's nonsense though. If we filter out the non-copyrightable parts of music we'd remove all the pitches, eighth notes, quarter notes, half notes...

We could remove the non-copyrightable parts of text works too. Just take out all the basic building blocks of language like verbs, nouns, stop words...

Individual notes, like individual words, are not copyrightable. Longer sequences, however, can be if they are original.

The problem of API copyrightability was not resolved by Google v. Oracle, the ruling was that no matter whether or not APIs are copyrightable, copying APIs is fair use (which is a concept in the USA but not in many other countries around the world).

I’d wager you’d get rid of over 90% of most codebases by removing all that.

But perhaps there could be a way to make something that automatically converts these "non-expressive elements" into copyrightable elements?

Output would probably be maddening to figure out though.