Technically just advanced indexing of code snippets

Precisely. I don't see a difference between what Google indexes on its search engine, and what CoPilot can recommend. Google has been and still does get slapped on the wrist when they don't respond to take down requests. It seems this is missing from CoPilot currently, and will open them up to a number of lawsuits in the future if it continues to operate as it does.

Except Google isn’t creating anything new, Copilot is. I’ve had it kick out some very interesting short stories based on Sherlock Holmes, so if I published those would they infringe?

You have no idea where they came from, or whether they are as new as you assume. Maybe they'd infringe, maybe they wouldn't!

Google returned nothing which contained exact matches of some of the more interesting dialogue. It would be a serious find - worthy of a paper - to disprove that GPT-3 is generating novel text/code.

It's easy to prove that it sometimes regurgitates text verbatim — just play with it for a while. Having certainty that any given span of text/code is novel is extraordinarily difficult.

Where does human creativity come from?

> I don't see a difference between what Google indexes on its search engine, and what CoPilot can recommend.

That is an extremely disingenuous take. It produces novel output, so is not merely an “index” in any sense of the word.

Each search results page is novel and unique. Even two different users making the same query will get different results thanks to the "search personalization" Google is doing these days.

Google search doesn't synthesize anything. It collects results and orders them according to an algorithm. Copilot and similar language models can synthesize new text. That's clearly different than just presenting existing text.

Copilot can't create new novel concepts. In the end it is just an complex mathematical formula that return a set of code references with a set of length determined by the math.

The illusion of creativity is similar to that of technology. Sufficient advanced technology is indistinguishable from magic, and sufficient advanced math is indistinguishable from intelligence. The relation between AI and math is the same as the relation between magic and technology.

All of the large language models can emit text that has never been seen in the training set (unless you go so far to consider each character to be a snippet).

They can also emit text that it verbatim copied.

Infringement isn't about how the infringing system works, it's about the product of that work.

> Infringement isn't about how the infringing system works, it's about the product of that work.

Exactly this. It makes zero difference that you produced your infringing work with the help of a program that happens to be extremely complex and marketed as "AI".

So do smaller models and I have to note smaller models are better at that.

If it gives the same output as a human programmer for the same input, why would it be legally relevant if one system has the intelligent property?

But that's the whole point of copyright. The same piece of code you copy from a Google search can legally be used by you if your developer came up with it, and not if Oracle came up with it. Where you copied it from is the entire point.

of course it's not intelligent, but we still have to decide how the law applies to the actions of software, or otherwise re-frame the whole thing to include the co-pilot developers doing the copyright infringement when they trained the model - not the current discussion which gives agency to the IDE plug-in "choosing" a code snippet to paste.

I don't see how the way the software was built is particularly relevant.

It's just a tool used by the developer; the onus is on the developer to ensure they don't infringe the licenses of the source code they incorporate in their software. Since Copilot makes it impossible to know where it's barfing code up from and what license that code is under, a developer who cares about not getting sued probably needs to avoid using Copilot.

Eh, the law is about making a copy. If my IDE plug-in fills in some code, the question is, did I copy the code, did the robot copy the code, or did the developers that wrote "cp github.db ~/trainingset" copy the code?

The authors of the tool created something that can be used for copyright infringement.

The tool itself lacks agency, it did what it was programmed to do.

If you took the tool's suggestions and proceeded to published a derivative work, you may have infringed.

This really doesn't feel any different from P2P filesharing services. Rightsholders have targeted tool publishers in the past, because they are the largest single target and not anonymous; but ultimately the infringement is performed by the end user.

This isn't complicated at all. You copied the code, which isn't an issue until you then go on to do something which infringes the license (e.g. publish under a different license, publish binaries without publishing source, publish without attribution, whatever it is that the license requires).

A law that uses the archaic terms "copy and paste", referring to a time when people would make an analog photocopy of a document written using a typewriter, trim it out with scissors or a knife, and glue it to their book with the pasty remains from boiling animal collagen cannot be trusted to apply word-for-word in a time when technology has obsoleted the glue, typewriter, xerox machine, and even the paper.

It is not the same as a human, no, but it's not hard to choose a definition of the word "intelligent" that can accurately describe something that can be done by a program.

When a human walks around a puddle, are they demonstrating intelligence? When a horse avoids stepping in a hole, is the horse intelligent? When a robotic vacuum avoids a stairway, is it intelligent? When a self-driving car avoids a bollard, is that intelligent?

Whether there's a being inside the device that believes it experiences consciousness or not, the same outcome happens. A Searle's Chinese Room that produces copies of Chinese IP, a trained monkey that does so, or a human that does the same thing, the outcome is very similar.