https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_...
For this content:
a nine-line rangeCheck function, several test files, the structure, sequence and organization (SSO) of the Java (API), and the API documentation.
That's an incomplete view. You're judging the value by the time it'd take to rewrite it.
The real value is in knowing what to type and why.
When Co-pilot suggests you a GPL code, it's main value is the knowledge, not the typing.
That piece of knowledge may have taken a LOT of effort from an OSS team to acquire.
Depending on the context, this knowledge would be worth millions.
Worth a lawsuit.
But it probably won't be worth millions of dollars. And that is why the lawsuit wont be worth it.
> That piece of knowledge may have taken a LOT of effort from an OSS team to acquire.
Anything "may" be possible. But it probably won't be worth that much.
I'd suggest to get more information about the repercussions associated with appropriating GPL code into proprietary closed source.
This is a big deal. You may have to license your entire codebase under GPL if you incorporate GPL code and distribute it.
I would suggest that you actually take your own advice and get more information yourself.
No license can force you to release your code. Nope, not even GPL.
Instead, what a rights holder can do, is sue for damages for the copyright theft, for not following the license. They can't force you to follow the license. Instead, they can say that you didn't follow it, therefore you stole the code, and owe money to them, for stealing the code, depending on how much the code is worth.
The only thing that GPL does, is it gives people permission to use the works, in exchange for releasing code. But, if you infringe, the damages do not depend on whatever the license was, or whatever request the license makes.
To use an example someone else gave, of the "first born child" license, imagine someone writes a simple binary search function, and puts out a license that gives it out for free, in exchange for paying them some absurd price. EX: the joke of the first born child, but more seriously, lets say the license was "1 million dollars".
If someone stole that binary search, couple line function code, and it went to court, they absolutely would not own them 1 million dollars, even though thats what the license said.
Instead, they would owe the rights holders damages. And chances are, a couple line binary search function, or some other example that you could think of, would only be worth a small amount.
And even though the license said "This code is worth 1 million dollars, and you owe us that money if you use it!", it is not true that anyone would owe them a million dollars. Instead they would only owe them damages, which would not be anywhere close to 1 million dollars.
In most cases, damages are set to make both parties straight, not to be punitive. People cite how trillion dollar companies might have billion-dollar lawsuits, but that's pretty reasonable. $1B damages are 0.1% of a company's value in a battle between FAANGs, which have big-O trillion-dollar valuations. If you have a dispute between $1M businesses, the analogue is $1k damages. That's not atypical for a commercial dispute.
I did not say it forces you to distribute it. That's absurd.
What I said is: "if you incorporate GPL code and distribute it"
If you do those two things, yes, you have to license your code under GPL.
It's not me saying, please take a look at Section 5-b and 5-c of the license. [1]
Let's do an experiment: You need to hit yourself repeatedly in the head with a mallet until you pass out.
Are you currently hitting yourself with a mallet until you pass out? No. Just because something is written doesn't mean you need to do it. If I incorporate your GPL code, distribute it, and don't license my code under the GPL, that means I'm distributing code without a license (or breaking a license). Unless I've crossed the line for criminal prosecution (which is far from anything we're discussing here), the worst-case consequence of that is .... damages.
If I've crossed the line into criminal prosecution, then the consequence is damages and jail time. I absolutely STILL do not need to license my code under the GPL.
(In most cases, it's a good idea to license code under the GPL, though, both due to branding/reputation damage, and since usually that leads to an out-of-court settlement; but those carry no legal force being that)
This is not how the law works. In addition to damages, if you're a party to a civil lawsuit then a court can order you to do something. This is called an "injunction".
For example, if I write something and you start selling copies of it without permission, and I sue you over your copyright infringement, a court can and will order you to stop. Copyright has teeth like that.
If the thing you were selling was your product -- based illegally on my GPL'd code -- then that may be a lot worse for you than some damages.
The solution to that is to remove or replace those lines.
That's not worse than damages. That's just table stakes. That's expected no matter what happens. If I had a few lines of GPL code in a proprietary code base, I'd do that the day it was discovered.
To understand the frequency of injunctions, have a look at this test:
https://en.wikipedia.org/wiki/Injunction#Permanent_injunctio...
Injunctions generally only happens if other means (like damages) have been exhausted.
If not, then you do have to license your entire work under GPL if you incorporate GPL code and distribute it.
If yes, what kind of environment do you think you're promoting? Is it positive for the development of the industry, and to society in general?
"can" is a complex question. You can do anything you want, but actions have consequences. I can buy a gun and shoot someone. The consequence is that I might spend the rest of my life in prison. I can fart in a crowded elevator. The consequence is that people will look at me funny, and might dislike me.
Consequences should be proportional to the action.
If farting in an elevator lead to life in prison, or if shooting someone led to people looking at me funny, things wouldn't work very well.
> If not, then you do have to license your entire work under GPL if you incorporate GPL code and distribute it.
No. This is not a proportional consequence. If a random developer incorporates 10 lines of GPL code into Windows, Microsoft doesn't need to license Windows under the AGPL. That's not how our legal system is set up.
Microsoft has to remove the code and pay damages.
> If yes, what kind of environment do you think you're promoting? Is it positive for the development of the industry, and to society in general?
The logic you're suggesting -- is not only incorrect -- but would lead to an environment where people have an irrational fear of "viral" licenses. They're intentionally not viral. They don't infect code. Releasing your code is one option for remedy, but not one the GPL author can force. The FSF went over backwards to design the license like that.
Damages and removing code is an appropriate consequence. It's adequate to prevent most license violations, and still not overly draconian. I don't know of any business which has gone under due to an error around the GPL. That's as it should be. If the GPL were business-toxic, it wouldn't set up a successful ecosystem.
Think of it: If Nevada gave the death penalty for littering, would you liter less? Or simply never, ever, ever travel to Nevada?
In this case, I don't know of a reasonable remedy. I don't want to shut down copilot, but I do feel bad about having my code stolen from me. Perpetual license for everyone whose code was used to develop co-pilot? A nominal stock grant in Open AI? I dunno. When I've seen class action lawsuits, those are the sorts of places things usually land. Indeed, it's usually just short of being fair.
If liability sits somewhere, it's with copilot, github, and Microsoft.
A lot of that might come down to bedside manner. Right now, github isn't super-polite to people whose code it used. That's probably a mistake. They'd be a unsympathetic evil megacorp in a jury trial.
It adds up.
But you know what? I think we'll find that CoPilot will have magically skipped those Oracle repositories and only used code from lowly open source slaves.
It might be possible, I don’t know about “highly”. Have you checked the license exclusions required to use Github? Their terms already carve out a Copyright exception for Github, because they need it on order to host your code. There’s also no reason Github can’t filter certain licenses, or make it impossible to complete entire functions, or build an option for everyone to opt-in to being autocomplete source material regardless of license, right? Any legal challenges are likely to result in changes to the feature before there are ever any serious repercussions.
I think it’s at least as likely, if not more so, that Copyright Law could evolve in response to the growing number of AI auto completers, and we (society) try to allow it within reason by being more specific about what constitutes automated infringement and who’s responsible for it. Fair Use currently exists but is vague and left up to courts to decide. In the meantime, Copyright is primarily intended to foster a balance between business and freedom of expression, and there’s a lot of open source software on Github that cares about freedom of expression and not about business. In any case, we don’t really want Copyright to represent some kind of absolute ownership land-lock over every string of 100 characters, that is a bit antithetical to both Copyright and the FOSS community.
Triply so when Microsoft is involved.
As far as copilot goes, yes it’s possible to get it to recite copyrighted works, but in normal usage it is creating independent works because it is too influenced by the structure of your code around the insertion point to recite anything. It’s auto completing things like the variable names that you already declared, simple loops and function applications, etc.
> What that means legally has yet to be fully determined.
At least in the US, the Supreme Court ruled in Google v Oracle that the entire Java API is not copyrightable. Copilot users are very far from crossing the line, the courts are not going to come after some de minimis 10-line snippet that copilot generated.
Whether Microsoft itself was legally in the right by training copilot is a more interesting legal question that remains unresolved.
No one has won billions of dollars on GPL enforcement. It's not how courts work. Contrary to popular belief, courts also won't compel compliance (e.g. releasing my code); if I break your license, the standard recourse is damages, whether that's GPL or All Rights Reserved.
Otherwise, I'd make the First Born Child license, whereby by using my code, you give me full ownership of your first born child, your home, your car, and your bank account. I could write a license like that right now, but I couldn't force you to give me your child, car, bank account, and home. If you used my code, you'd have the option to accept the license and give me those things. Or you could reject it, in which case, it's a normal copyright violation; in that case, whatever I wrote in the license is moot, and you pay damages (and stop using my code).
The only part which wouldn't be valid in a contract was the first-born child. That was a joke.
Indeed, if the GPL were a contract, courts might compel compliance.
However, the GPL is not a contract, it's a license. The FSF bent over backwards to make sure the GPL/AGPL licenses wouldn't be viewed as a contract, in part to limit liability / damages / risk.
Confusingly, some EULAs are framed contracts, contrary to the acronym, and do expose users to much more risk of liability than the GPL.
The relevant part of the GPL is:
You are not required to accept this License in order to receive or
run a copy of the Program. Ancillary propagation of a covered work
occurring solely as a consequence of using peer-to-peer transmission to
receive a copy likewise does not require acceptance. However, nothing
other than this License grants you permission to propagate or modify
any covered work. These actions infringe copyright if you do not accept
this License. Therefore, by modifying or propagating a covered work, you
indicate your acceptance of this License to do so.
It will be a gift. Gifts are valid, but they require free will of the gifting party. Gifts, without free will, can be easily canceled by court.
If you steal 10 lines of code from me, the damages will be the greater of:
- The benefit to you (10 minutes programmer time)
- The cost to me ($0)
- Statutory damages (probably $200)
In other words, it's very unlikely to be worth a lawsuit. The most likely outcome is:
- A legal letter is sent
- Infringing code is removed
- As good bedside manner, some nominal amount of money is transferred, mostly in some gesture designed to make the violated party feel good about themselves (e.g. a nice gift).