Yes but among the four factors that are used to evaluate fair use claims are whether it is being used commercially (it is) and how it affects the market for the thing that was copied (it clearly would since one way code is used is being imported by other code, if Copilot didn't insert my code into the new app, they might very well use my open source project that provides the same code).
Re:Copilot sells code other people wrote
by CrazyStat on Thursday June 23, 2022 @10:30AM
(#31849611)
I wasn't staking a position on whether Copilot is fair use, just pointing out that fair use doesn't care about license.
That said, copilot itself is not a replacement for your open source project that it was trained on. The code it generates may or may not be, but that's probably not Github's problem as far as copyright law is concerned.
IANAL but fair use is primarily about the public interest. What public interest is served by allowing proprietary software vendors to copy GPL code that's reserved for the commons?
I don't really think this argument passes muster.
The whole point of fair use is that the license doesn't matter. You can have a license that says I'm not allowed to use what you wrote for any purpose ever and I can still use it under fair use.