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.
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.
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.
>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.
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.
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.
(sorry i wrecked the citation and lost where i found it)
> 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.
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?
... 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.
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'
> 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.
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.
"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!
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...
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!
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?
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.
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"?
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.
And we need to accept that and get over it, not get better at outlawing it.
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.