The average salary of a programmer in which country?
So much programming is outsourced these days, and in some places programmers are very cheap.
If the court wanted to distinguish between Microsoft using their own programmers to generate code vs taking code from github users, then the salary in question would likely be that of Microsoft programmers. It would then be used to illustrate how a legal training data would look like compared to an illegal one.
If "I took your code and trained an AI that then generated your code" is a legal defense, the GPL and similar licenses all become moot.
https://docs.github.com/en/site-policy/github-terms/github-t...
"You grant us and our legal successors the right to store, archive, parse, and display Your Content"
Copilot displays content. Case closed.
"This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content"
They did not actually calculate damages in terms of lost movie tickets or estimated vs actually sales number of game copies. When it came to pre-releases where such product wouldn't have been sold legally in the first place, they simply added a multiplier to indicate that the copyright owner wouldn't have been willing to sell.
For software code, an other practice I have read is to use the man-hours that rewriting copyrighted code would cost. Using such calculations they would likely estimate the man hours based on number of lines of code and multiply that with the average salary of a programmer.