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.