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Re:GitHub Copi­lot inves­ti­ga­tion by naet on Tuesday October 18, 2022 @01:12AM (#33243208)
I see this basic logic in almost AI ethics threads, and it starts with a big assumption: "humans learn from copyrighted source material without copyright violation". This then gets tenuously extended to "ai also learns, so it must not be in violation of copyright law".

The first assumption is highly flawed though. Humans routinely do violate copyright law. Plagiarism is a huge problem in many sectors; un-cited direct copies of people's work in violation of fair use is a regular every day occurrence in the human world. It doesn't matter if you memorized the source material or if you transcribed it or if you copy and pasted it, if it isn't your source material and is someone else's, you've committed a violation of the law. Learning to produce original work and reproducing someone else's work is not the same thing. If an AI is ingesting and perfectly reproducing someone else's copyrighted works, it is in violation of copyright law in the same way a human would be if they reproduce someone else's copyrighted works.

Re:GitHub Copi­lot inves­ti­ga­tion by iroh2727 on Tuesday October 18, 2022 @01:45AM (#33243408)
+1. And let's not forget too that "AI", that is, ML models, are not "autonomous" in the way that humans are autonomous. Sure, we use the word "learn" to describe what they do, which is one word that we also use to describe what people do. But ML models are always wielded by people or corporations for particular purposes.

If a corporation was to directly publish some copy that appears plagiarized, we'd call that plagiarism. I don't see how adding a piece of code—one that's fully created, owned, and wielded by the corporation—as an intermediary changes anything. If anything, it looks like plagiarism-as-a-service, which seems worse (at least to my eyes).

Of course, this matter is a bit confusing. Because, for example, (1) it's not always plagiarism, (2) defining what exactly is plagiarism even in the purely non-technological realm is difficult (and likely somewhat subjective), and (3) there is a lot of corporate marketing which suggests this "AI" is "autonomous" (presumably to distract from who exactly is autonomous in this picture). And of course ML art is quite useful for many things. But I mean, so are artists.

Not long ago, a lot of Silicon Valley rhetoric was that the purpose of "technology" was to free up time so that people could be more incentivized to "do what people love to do" like, for example, artistic creation. But now it seems that rhetoric was just that: rhetoric, or what was needed to be believed/said at the time.

And now at our present time, when technological "progress" has been followed a bit further (that is, when we've developed our machinery a bit further under the incentives of our present economic system), much rhetoric has conveniently shifted to something else, something largely contradictory, but again precisely to what is needed to be believed/said to continue following the same incentive structure.

Re:GitHub Copi­lot inves­ti­ga­tion by Vetch on Tuesday October 18, 2022 @03:02AM (#33243923)
The main reason AI will be reproducing copyrighted works while the original license is not trivial to identify will be that in those instances, humans are already violating copyright at a high rate. It's just flown under the radar thus far as required machinery to so easily surface violations was not available.

Copilot is capable of going beyond retrieval and is competent at using variables, comments, types and local context to infer intention and generate appropriate code and even comment on it. Whenever copilot correctly predicts code of yours that's a novel combination of concepts, copilot has originated novel code.

For esoteric concepts, you usually already have to know how to prime it but Copilot is especially useful when it helps you bump into things you didn't know you didn't know (one way to increase the odds of this happening is to write out your thinking so far in markdown or comments. You'd be surprised how helpful and clever Copilot can be in some instances). My point here is Github isn't charging $10/month for run of the mill retrieval. My opinion is code-gen LLMs contribute value and more open versions are worth building.

Re:GitHub Copi­lot inves­ti­ga­tion by t-vi on Tuesday October 18, 2022 @08:47AM (#33246347)
Indeed, the "learning". To my mind, the most simple (but still speculative) explanation of the "learning" phenomena - working examples and limitations / failures - we see is that the large models implicitly memorize the training inputs (or some derived features that can be used to approximately reconstruct the inputs) and then do something between interpolation and rather simple non-parametric learning. The effect is outputs are basically a somewhat sensical agglomeration of copy-pasted" snippets.

That said I think the results are often useful and sometimes fascinating. We should not fool ourselves about the learning that these large neural nets do, though.

Re:GitHub Copi­lot inves­ti­ga­tion by melagonster on Tuesday October 18, 2022 @09:19AM (#33246670)
There is a common argument that "human just a better neural network", I don't know, did they mean we need to give GPT-3 or Dalle basic human rights?
Re:GitHub Copi­lot inves­ti­ga­tion by visarga on Tuesday October 18, 2022 @03:16PM (#33252470)
It is a self replicating distillation of culture.
Re:GitHub Copi­lot inves­ti­ga­tion by melagonster on Tuesday October 18, 2022 @09:04PM (#33256154)
yes, this should happen, or we just build a new slavery system. but before this happen, using this argument to escape from question about copyright is dishonest.
Re:GitHub Copi­lot inves­ti­ga­tion by BrainVirus on Tuesday October 18, 2022 @09:48AM (#33247073)
A lot of really good points.

>Sure, we use the word "learn" to describe what they do, which is one word that we also use to describe what people do. But ML models are always wielded by people or corporations for particular purposes.

This is extremely important. "Learning" in machine learning is an aspirational label, not a descriptive one. People who claim otherwise either drank too much of their own Kool-Aid or are simply dishonest. This isn't just "wrong" in some taxonomical sense, this is dangerous in a very practical way. Conflating machine "learning" and human learning will inevitably lead to various kinds of sabotage of human learning.

Re:GitHub Copi­lot inves­ti­ga­tion by judge2020 on Tuesday October 18, 2022 @09:53AM (#33247142)
I mean, at what point will this change? When the AI has to first be trained by being in a robot in the physical world for 10 years learning human concepts before it can start looking at art in the ultimate goal of learning how to draw?
Re:GitHub Copi­lot inves­ti­ga­tion by zarzavat on Tuesday October 18, 2022 @01:47AM (#33243413)
The law does not concern itself with trifles.[0]

Programmers tend to think of copyright as a Boolean valued function. Either something is infringement or it isn’t.

Judges think of copyright infringement as a real-valued function of many arguments corresponding to the circumstances of the parties (e.g. what actual damage was done?).

A human quoting a human without attribution, without any profit made or identifiable damage, returns an infringement value very close to zero. Such cases, if anyone is petty enough to bring them, are likely to get dismissed.

[0] https://en.m.wikipedia.org/wiki/De_minimis

Re:GitHub Copi­lot inves­ti­ga­tion by kelnos on Tuesday October 18, 2022 @02:02AM (#33243505)
I'm not convinced of what you wrote. Is it actually true that cases like that are dismissed? Or is it that the infringing party is ordered to stop, but not damages are awarded to the rightsholder? You've offered no examples of dismissal to back up your statement.

I absolutely agree with you that copyright is not a boolean, but I don't buy the idea that a judge will just shrug and allow infringement to continue just because there was no commercial harm.

I also think your example is just irrelevant to the case at hand. Sure, someone "performing" someone else's copyrighted words once may not be a big thing. But if Copilot is actually found to be infringing, these infringements will keep happening, over and over and over.

Bottom line is that none of this has been tested in court. I think it's great that someone is working on doing just that. Maybe the end result will be that Microsoft's use is indeed fair use, and that Copilot users have no further obligations. But I'd like to hear a court decide that, not a bunch of armchair non-lawyers (myself included) on a random web forum.

Re:GitHub Copi­lot inves­ti­ga­tion by abigail95 on Tuesday October 18, 2022 @04:17AM (#33244425)
Louisiana Contractors Licensing Serv., Inc. v. Am. Contractors Exam Servs., Inc., 13 F. Supp. 3d 547, 554

(sorry i wrecked the citation and lost where i found it)

Re:GitHub Copi­lot inves­ti­ga­tion by jfk13 on Tuesday October 18, 2022 @05:23AM (#33244823)
Not necessarily where you found it, but sounds like https://willamette.edu/law/resources/journals/wlo/ip/2014/04...
Re:GitHub Copi­lot inves­ti­ga­tion by kelnos on Thursday October 20, 2022 @03:07PM (#33279235)
This is pretty interesting, and IMO, really disappointing to see that was the ruling in that case.
Re:GitHub Copi­lot inves­ti­ga­tion by shagie on Tuesday October 18, 2022 @10:28AM (#33247727)
https://www.lexisnexis.com/community/casebrief/p/casebrief-n...

> CONCLUSION:

> The court of appeals affirmed the district court's judgment. The court held that the Performers' use of the composition, as distinct from the use of the composer's performance, was de minimis and therefore not actionable. Considering only the compositional elements, the brief and relatively simple segment of the composition used by the Performers was neither quantitatively nor qualitatively significant when viewed in relation to the composition as a whole. Thus, despite the high degree of similarity from the actual use of the recorded composition, the scope of the similarity was not sufficiently substantial to support Newton's infringement claim.

Re:GitHub Copi­lot inves­ti­ga­tion by kelnos on Thursday October 20, 2022 @03:05PM (#33279191)
Ok, sure, but that's not what I was asking for. I'm not surprised that there is one (or even two or three or a handful) of examples where this happened. But is it common?

Also I'm looking for a case where the judge acknowledged that copyright infringement was occurring, but decided not to do anything about it. From the bit you quoted, it sounds to me like it's implying that the judge believed there was a valid fair-use defense? Or even stronger, that the judge just did not believe the use was infringing at all?

Re:GitHub Copi­lot inves­ti­ga­tion by CaptArmchair on Tuesday October 18, 2022 @05:44AM (#33244941)
> A human quoting a human without attribution

... as opposed to AI. At the heart of the matter lurks a debate whether AI is an independent phenomenon which behaves in its own right, or a just a tool that's created and wielded by humans against a backdrop of clear incentives and motivations.

The argument isn't about whether or not the law deals in a absolutes - it's a basic principle that law is tested in courts through interpretation - the argument is that co-pilot can be perceived as merely a means to an end and that GitHub / Microsoft have created a massive mountain of liabilities for themselves.

Re:GitHub Copi­lot inves­ti­ga­tion by OrangeMonkey on Tuesday October 18, 2022 @06:50AM (#33245400)
I disagree with your statement about ai being an independent behavior.

Suppose we add a button to a visual studio plugin called 'Copy me a function' and when you click it, it 100% grabs some random code from github and plops it as-is into your code base.

I don't have to argue the ethics of if the button is 'thinking for itself'

Re:GitHub Copi­lot inves­ti­ga­tion by CaptArmchair on Tuesday October 18, 2022 @07:01AM (#33245488)
Well, I just pointed out it's an ongoing debate, I didn't connect any particular value attribution to that statement.

> Suppose we add a button to a visual studio plugin called 'Copy me a function' and when you click it, it 100% grabs some random code from github and plops it as-is into your code base.

Personally, that's exactly how I see co-pilot. To my mind, it's a tool that sits in the same category as p2p platforms, copying machines or video recorders. They are just tools.

How, for what purposes and by whom they are leveraged makes all the difference here.

Re:GitHub Copi­lot inves­ti­ga­tion by OrangeMonkey on Tuesday October 18, 2022 @07:05AM (#33245516)
That makes it easier, at least, in the US.

P2P platforms and those who violate copyright are routinely shut down (or attempt to be shut down) in the US. If co-pilot sits in that same space, it seems the books been written already... we know how it ends.

Re:GitHub Copi­lot inves­ti­ga­tion by williamcotton on Tuesday October 18, 2022 @06:52AM (#33245415)
> If an AI is ingesting and perfectly reproducing someone else's copyrighted works, it is in violation of copyright law in the same way a human would be if they reproduce someone else's copyrighted works.

"In computer programs, concerns for efficiency may limit the possible ways to achieve a particular function, making a particular expression necessary to achieving the idea. In this case, the expression is not protected by copyright."

https://en.wikipedia.org/wiki/Abstraction-Filtration-Compari...

Consider the impact on innovation if Microsoft or Oracle were allowed to claim a copyright over utilitarian aspects of their works such as the Java or Windows API!

BTW, Copilot seems to be reproducing copyrightable material when the tool reproduces comments verbatim!

Re:GitHub Copi­lot inves­ti­ga­tion by paphillips on Tuesday October 18, 2022 @09:51AM (#33247121)
In my opinion this is a key comment in this thread and everyone subject to United States law should read the Abstraction Filtration Comparison (AFC) legal test when refining their opinion. Also, I have no legal background, but as far as I know patent law != copyright law.

Specifically within AFC, note the "idea/expression dichotomy" [1] which clearly states:

"copyright law protects an author's expression, but not the idea behind that expression"

Thus, if this tools spits out someone else's code verbatim it is a definite copyright infringement. If it outputs code that is similar but not verbatim then it "could" be an infringement, at your own risk, and to be determined by the courts. Simply expressing the same idea in a different way is not a definite infringement.

Program code is naturally copyright-risky because the keyword/grammar space is constrained. It is far more difficult to accidentally duplicate verbatim the expression of one's ideas in a full language, such as English, than in C. And what of two separate programs (or constituent sub-parts such as functions) that by chance emit the same compiled binary?

Personally, for now I won't use this tool due to the risk of accidental plagiarism, and because it is a black box: I can't examine any lineage or attribution metadata to understand the source(s) of what I would then be incorporating into my own body of work. Of course I doubt I could get that type of traceability information for any other trained ML model I might use, so perhaps I need to re-examine my policies heading into the future.

[1] https://en.wikipedia.org/wiki/Idea%E2%80%93expression_distin...

Re:GitHub Copi­lot inves­ti­ga­tion by williamcotton on Tuesday October 18, 2022 @10:48AM (#33248065)
> Thus, if this tools spits out someone else's code verbatim it is a definite copyright infringement.

That is not true. It can be verbatim and not a copyright violation if it can be shown that the expression in question is strictly utilitarian! I literally provided a quote from that AFC article that says this!

There's even precedent that prior art nullifies a copyright claim, as seen in Johannsongs-Publishing, Ltd. v. Rolf Lovland:

"Johannsongs failed to offer admissible evidence to rebut Ferrara’s analysis, so there is no genuine dispute of material fact as to his conclusions that Söknuður and You Raise Me Up are not substantially similar and most of their similarities are attributable to prior art."

And this was about music, not software, which has always sat uncomfortably between utility and expression, if only because it is some kind of writing. No one is claiming copyrights over Photoshop filter settings or other inputs manipulated by sliders or buttons!

Re:GitHub Copi­lot inves­ti­ga­tion by williamcotton on Tuesday October 18, 2022 @12:15PM (#33249695)
As for why we should allow verbatim copies of utilitarian features...

First, let's preface this with the substantial similarity of the structure, sequence and organization as established in Whelan v. Jaslow which amongst other things says that you cannot merely change the variable names if the expressive structure of the code remains the same.

Now let's imagine 10,000 software developers who all implement Dijkstra's algorithm in C and then run it through clang-format. Aside from variable names, isn't it safe to assume that many of the implementations are going to be exactly the same?

Re:GitHub Copi­lot inves­ti­ga­tion by autoexec on Tuesday October 18, 2022 @07:42PM (#33255587)
> It can be verbatim and not a copyright violation if it can be shown that the expression in question is strictly utilitarian!

So if it's identical it might or might not be a copyright violation and even if is totally different it still might or might not be a copyright violation... and only after spending insane amounts of time and money in the court system can you ever be sure if what you (or your AI) created has made you a criminal. This is increasingly sounding like a very very broken system.

Re:GitHub Copi­lot inves­ti­ga­tion by paphillips on Tuesday October 18, 2022 @09:56PM (#33256499)
Good point - the wording I chose should have qualified the scope in that first statement: how about something like "as the scope that is reproduced verbatim increases, the likelihood of infringement approaches 100%?" (excluding prior art, public domain, etc). Obviously no one could reasonably claim copyright on a variable declaration - the scope is too small, and in some languages there is only one way to express it.

However, the statement was only for cases of verbatim copies produced by Copilot. The AFC Wikipedia article states that "Proving copyright infringement requires proving both ownership of the copyright and that copying took place." The 3 detailed tests developed in that case appear to be "expand" the determination of infringement to close potential loopholes where, while there is not a verbatim copy, infringement is still deemed to have occurred because of "substantial similarity". e.g. someone copies a program but changes the variable names.

So where is the line between infringement and not, in cases where there is an exact copy of a code fragment? Can we still use the utilitarian defense or is that only used by the court to exclude portions of the code in the tests for "substantial similarity"?

Re:GitHub Copi­lot inves­ti­ga­tion by williamcotton on Thursday October 20, 2022 @07:55AM (#33273302)
Personally I use common sense to determine if something is utilitarian in nature. The real issue is with the “overall shape”, like, class structure, specific data types, etc, which is somewhat arbitrary in nature.

At this point Copilot is awful at this higher-order level of abstraction but I can see a time where this is not the case!

Microsoft will have to put more work into filtering out responses that are indeed copyright violations if they want people to use their tools.

I doubt that MS will ever be held liable for the violations themselves as there is precedent in themselves and their legal department has plenty of cash to burn.

Re:GitHub Copi­lot inves­ti­ga­tion by Timshel on Tuesday October 18, 2022 @07:16AM (#33245613)
I agree it's like people are not aware that clean room design is a thing (https://en.wikipedia.org/wiki/Clean_room_design).
Re:GitHub Copi­lot inves­ti­ga­tion by ghaff on Tuesday October 18, 2022 @09:23AM (#33246716)
Yes, it's a thing but how often is it actually done? I can imagine circumstances where a company might do so--say a cloud provider wants to clone some open source software and offer it as a service. But I'm pretty sure the practice isn't routine.
Re:GitHub Copi­lot inves­ti­ga­tion by autoexec on Tuesday October 18, 2022 @07:34PM (#33255527)
Not really a fix to the problem since as your own link shows you can still be dragged into court to defend against a copyright lawsuit which can cost someone tens if not hundreds of thousands of dollars and there are no guarantees when you're up against a team of lawyers representing an entity with far more money and resources than you have. In the end, you can do everything right and still easily end up being screwed which isn't how anything should work.
Re:GitHub Copi­lot inves­ti­ga­tion by kbelder on Tuesday October 18, 2022 @06:09PM (#33254718)
>Humans routinely do violate copyright law. Plagiarism is a huge problem in many sectors; un-cited direct copies of people's work in violation of fair use is a regular every day occurrence in the human world.

And we need to accept that and get over it, not get better at outlawing it.

Re:GitHub Copi­lot inves­ti­ga­tion by autoexec on Tuesday October 18, 2022 @07:24PM (#33255450)
I'd say we need to reject it, refuse to get over it, and demand changes to fix copyright law so that humans and AI don't need to risk violating the law in order to learn things and create new works based on what they've learned from what others created before them.
Re:GitHub Copi­lot inves­ti­ga­tion by mgkimsal on Thursday October 20, 2022 @12:08PM (#33276807)
Seems like 'learning' and 'producing something with that learned information' are two different things. I can 'learn' all day long from copyrighted materials. I'm not violating anything, because I've not produced a copy that would be distributed or used. First/knee-jerk reaction to that above - no doubt there's more nuance buried someplace.