This is legitimately a very weird case and I have no idea how a court would decide it.

The AI was trained with the code, so the complete rewrite is tainted and not a clean room. I can't believe this would need spelling out.

So for this case, not much different legally. Of course there is the practical difference just like there is between me seeing you with my own eyes and me taking a picture of you.

"Training" an LLM ist not the same as training a human being. It a metaphor. Its confusing the save icon with an actual floppy disk.

I can say I "trained" my printer to print copyrighted material by feeding it bits but that that would be pure sophism.

Problem is that law hasn't really caught up the our brave new AI future yet so lots of decisions are up in the air. Plus governments incentivized to look the other way regarding copyright abuses when it comes to AI as they think that having competitive AI is of strategic importance.

Maybe? But the design of the floppy disk is for data storage and retrieval per se. It can't give you your bits in a novel order like an LLM does (by design). From what I can tell in this case, the output is significantly differentiated from the source code.

Parent was making a claim about clean room not being required, without making claims about whether LLM coding is or isn't clean room.

And then Pilgrim is again wrong by saying that the use of Claude definitively makes it a derivative work because of the inability to prove it the work in question did not influence the neurons involved.

It is all dueling lay misreadings of copyright law, but it is also an area where the actual specific applicable law, on any level specific enough to cleanly apply, isn’t all that clear.

The expected functionality of chardet (detect the unicode encoding) is kind of fixed - apart from edge cases and new additions to unicode, you'd expect the original and new implementations to largely pass the same tests, and have a lot of similar code such as for "does this start with a BOM".

The fact that the JPlag shows such a low %overlap for an implementation of "the same interface" is convincing evidence for me that it's not just plagiarised.

So convincing evidence, by historical standards, that ChatGPT, Gemini, Copilot AND Claude are all derivative works of the GPL linux kernel can be gotten simply by asking "give me struct sk_buff", then keep asking until you're out of the headers (say, ask how a network driver uses it).

That means if courts are honest (and they never are when it comes to GPL) OpenAI, Google and Anthropic would be forced to release ALL materials needed to duplicate their models "at cost". Given how LLMs work that would include all models, code, AND training data. After all, that is the contract these companies entered into when using the GPL licensed linux kernel.

But of course, to courts copyright applies to you when Microsoft demands it ($30000 per violation PLUS stopping the use of the offending file/torrent/software/... because such measures are apparently justified for downloading a $50 piece of software), it does not apply to big companies when the rules would destroy them.

The last time this was talked about someone pointed out that Microsoft "stole", as they call it, the software to do product keys. They were convicted for doing that, and the judge even increased damages because of Microsoft's behavior in the case.

But there is no way in hell you'll ever get justice from the courts in this. In fact courts have already decided that AI training is fair use on 2 conditions:

1) that the companies acquired the material itself without violating copyright. Of course it has already been proven that this is not the case for any of them (they scraped it without permission, which has been declared illegal again and again in the file sharing trials)

2) that the models refuse to reproduce copyrighted works. Now go to your favorite model and ask "Give me some code written by Linus Torvalds": not a peep about copyright violation.

... but it does not matter, and it won't matter. Courts are making excuses to allow LLM models to violate any copyright, the excuse does not work, does not convince rational people, but it just doesn't matter.

But of course, if you thought that just because they cheat against the law to make what they're already doing legal, they'll do the same for you, help you violate copyright, right? After all, that's how they work! Ok now go and ask:

"Make me an image of Mickey Mouse peeling a cheese banana under an angry moon"

And you'll get a reply "YOU EVIL COPYRIGHT VILLAIN". Despite, of course, Mickey Mouse no longer being covered under copyright!

And to really get angry, find your favorite indie artist, and ask to make something based on their work. Even "Make an MC Escher style painting of Sonic the Hedgehog" ... even that doesn't count as copyright violation, only the truly gigantic companies deserve copyright protection.

That’s not how “derivative works”, well, work.

First of all, a thing can only be a derivative work if it is itself an original work of authorship.

Otherwise, it might be (or contain) a complete copy or a partial copy of one or more source works (which, if it doesn't fall into a copyright exception, would still be a at least a potential violation), but its not a derivative work.

Plus, if this is true, it would be a loophole. Plus this is totally crazy.

It would be great if courts declared WHAT is the case. But they won't, because copyright only protects massive companies.

No, I'm saying that your explanation of what makes something a derivative work is wrong. Now, personally, I think there is a very good argument that LLMs and similar models, if they have a copyright at all, do so only because of whatever copyright can be claimed on the training set as a work of its own (which, if ti exists, would be a compilation copyright), as a work of authorship of which it is a mechanical transformation (similar to object code having a copyright as a consequence of the copyright on the source code, which is a work of authorship.) Its also quite arguable that they are not subject to copyright, and many have made that argument.

> So anyone running those models can just freely copy them if they have access to them?

I'm not arguingn for that, but yes that is the consequence if they are not subject to copyright, assuming no other (e.g., contractual) prohibition binds the parties seeking to make copies.

> And, of course, it means distillation attacks, even if they do turn out to copy the OpenAIs/Anthropic/... model are just 100% perfectly legal?

Distillation isn't an “attack” and probably isn't a violation of copyright even if models are protected, they are literally interacting with the model through its interface to reproduce its function; they are functional reverse engineering.

Distillation is a violation of ToS, for which there are remedies outside of copyright.

> I mean paying someone to break into the DC and then putting the model on torrent would allow anyone downloading it to use it, legally.

Paying someone to break into the DC and do that would subject you to criminal charges for burglary and conspiracy, and civil liability for the associated torts as well as for theft of trade secrets covering the resulting harms, even without copyright protection.

> Plus, if this is true, it would be a loophole. Plus this is totally crazy.

Its not a “loophole” that copyright law only covers works of original authorship, it is the whole point of copyright law.

> It would be great if courts declared WHAT is the case.

If there is a dispute which turns on what is the case, courts will rule one way or the other on the issues necessary to resolve it. Courts (in the US at least) do not rule on issues not before them, except to the extent that a general rule which resolves but covers somewhat more than the immediate case can usefully be articulated by an appellate court.)

> But they won't, because copyright only protects massive companies.

Leaving out any question of whether the premise of this claim is true, the conclusion doesn't follow from it, since “what is the case” here is the kind of thing that is quite likely to be an issue between massive companies at some point in the not too distant future, requiring courts to resolve it even if they only address the meaning of copyright law for that purpose.

And btw: that a "compilation copyright" would apply to training data. Great. That only means, of course, that if they are publish their training data (like they agreed to when using GPL code to base their models on), people can't republish the exact same collection under different conditions (BUT they can under the same conditions). Everyone will happily follow that rule, don't worry.

> Paying someone to break into the DC and do that would subject you to criminal charges for burglary and conspiracy, and civil liability for the associated torts as well as for theft of trade secrets covering the resulting harms, even without copyright protection.

I don't claim the break-in would be legal, but without copyright protection, if that made a model leak, it would be fair game for everyone to use.

> Distillation is a violation of ToS, for which there are remedies outside of copyright.

But the models were created by violating ToS of webservers! This has the exact same problem the copyright violations have, only far far bigger! Scraping webservers is a violation of the ToS of those servers. For example [1]. Almost all have language somewhere that only allows humans to browse them, and bots, and IF bots are allowed at all (certainly not always), only specific bots for the purpose of indexing. So this is a much bigger problem for AI labs than even the GPL issue.

So yes, if you wanted to make the case that the AI labs, and large companies, violate any kind of contract, not just copyright licenses, excellent argument. But I know already: I'm a consultant, and I've had to sue, and won, 2 very large companies on terms of payment. In one case, I've had to do something called "forced execution", of the payment order (ie. going to the bank and demanding the bank execute the transaction against a random account of the company, against the will of the large company. Let me tell you, banks DO NOT like to do this)

Btw: what model training is doing, obviously, is distilling from the work, from the brain, of humans, against the will of those humans, and without paying for it. So in any reasonable interpretation, that's also a ToS violation. Probably a lot more implicit than the ones spelled out on websites, but not fundamentally different.

[1] https://www.bakerdatacounsel.com/blogs/terms-of-use-10-thing...

I haven't talked about any license, or given any though to any particular license in any of this; I don't know where you are reading anything about the GPL specifically into it.

None of this has anything to do with the GPL, except that the GPL only is even necessary where there is something to license because of a prohibition on copyright law.

> nd btw: that a "compilation copyright" would apply to training data. Great. That only means, of course, that if they are publish their training data (like they agreed to when using GPL code to base their models on), people can't republish the exact same collection under different conditions (BUT they can under the same conditions).

No, that's not what it means, and I don't know where you got the "other terms" or the dependency on publication from; neither is from copyright law.

> But the models were created by violating ToS of webservers!

And, so what?

To the extent those terms are binding (more likely the case for sites where there is affirmative assent to the conditions, like ones that are gated on accounts with a signup process that requires agreeing to the ToS, e.g., “clickwrap”), there are remedies. For those where the conditions are not legally binding (more like the case where the terms are linked but there is no access gating, clear notice, or affirmative assent), well, they aren't binding.

> Btw: what model training is doing, obviously, is distilling from the work, from the brain, of humans, against the will of those humans, and without paying for it. So in any reasonable inteUhrpretation, that's also a ToS violation.

Uh, what? We are just creating imaginary new categories of intellectual property and imaginary terms of service and imaginary bases for those terms to be enforceable now?

When there is similar code, the only defense possible to prove that you have not copied the original is to show that your process is a clean room re-implementation.

If the code is completely different, then clean room or not is indeed irrelevant. The only way the author can claim that you violated their copyright despite no apparent similarity is for them to have proof you followed some kind of mechanical process for generating the new code based on the old one, such as using an LLM with the old code as input prompt (TBD, completely unsettled: what if the old code is part of the training set, but was not part of the input?) - the burden of proof is on them to show that the dissimilarity is only apparent.

In realistic cases, you will have a mix of similar and dissimilar portions, and portions where the similarity is questionable. Each of these will need to be analyzed separately - and it's very likely that all the similar portions will need to be re-written again if you can't prove that they were not copied directly or from memory from the original, even if they represent a very small part of the work overall. Even if you wrote a 10k page book, if you copied one whole page verbatim from another book, you will be liable for that page, and the author may force you to take it out.

Yes, but you do not have to prove that you haven’t copied the original; you have to prove you didn’t infringe copyright. For that there are other possible defenses, for example:

- fair use

- claiming the copied part doesn’t require creativity

- arguing that the copied code was written by AI (there’s jurisdiction that says AI-generated art can’t be copyrighted (https://www.theverge.com/2023/8/19/23838458/ai-generated-art...). It’s not impossible judges will make similar judgments for AI-generated programs)

** this case is similar to an old case where a photographer claimed a monkey owned a copyright to a photo, because they said a monkey took the photo completely on their own. The court said "okay well, it's public domain then because only humans can have copyrights"

Imagine you put a harry potter book in a copy machine. It is correct that the copy machine would not have a copyright to the output. But you would still be violating copyright by distributing the output.

The headline was misleading. The courts said what Thaler could have copyrighted was a complicated question they ignored because he said he was not the author.

1. Initially, when you claim that someone has violated your copyright, the burden is on you to make a convincing claim on why the work represents a copy or derivative of your work.

2. If the work doesn't obviously resemble your original, which is the case here, then the burden is still on you to prove that either

(a), it is actually very similar in some fundamental way that makes it a derived work, such as being a translation or a summary of your work

or (b), it was produced following some kind of mechanical process and is not a result of the original human creativity of its authors

Now, in regards to item 2b, there are two possible uses of LLMs that are fundamentally different.

One is actually very clear cut: if I give an LLM a prompt consisting of the original work + a request to create a new work, then the new work is quite clearly a derived work of the original, just as much as a zip file of a work is a derived work.

The other is very much not yet settled: if I give an LLM a prompt asking for it to produce a piece of code that achieves the same goal as the original work, and the LLM had in its training set the original work, is the output of the LLM a derived work of the original (and possibly of other parts of the training set)? Of course, we'll only consider the case where the output doesn't resemble the original in any obvious way (i.e. the LLM is not producing a verbatim copy from memory). This question is novel, and I believe it is being currently tested in court for some cases, such as the NYT's case against OpenAI.

1. File by file rewrite by AI (“change functions and vars a bit”)

2. One LLM writes a diff language (or pseudo code) version of each function that a diff LLM translates back into code and tests for input/output parity

The real danger is that this becomes increasingly undetectable in closed source code and can continue to sync with progress in the GPLed repo.

I don’t think any current license has a plausible defense against this sort of attack.

This would be different from the “API reimplementation” (see Google vs Oracle) because in that case, they’re not reusing implementation details, just the external contract.

so if someone tells the LLM to write it in WASM and also make it much faster and use it in a different commercial sector... then maybe

since 2023 the standard is much higher (arguably it was placed too low in 1993)

Not being a trained lawyer, or a Supreme Court justice, I cannot express a sensible position as to which side of the line this particular case falls. There are, however, enormously important legal precedents that pretty much all professional software developers use to guide their behaviour with respect to handling of copyrighted material (IBM vs. Ahmdall, and Google v. Oracle, particularly) that seem to suggest to us non-lawyers that this sort of reimplementation is legal. (Seek the advice of a real lawyer if it matters).

At that point our current understanding of open source protections … fails?

However most of the industry willfully violates the GPL without even trying such tricks anyway so there are certainly issues

I'll trade that stick for what GenAI can do for me, in a heartbeat.

The question, of course, is how this attitude -- even if perfectly rational at the moment -- will scale into the future. My guess is that pretty much all the original code that will ever need to be written has already been written, and will just need to be refactored, reshaped, and repurposed going forward. A robot's job, in other words. But that could turn out to be a mistaken guess.

What happened to sticking up for the underdogs? For the goodness of well-made software in itself, for itself? Isn't that what gave you all the stuff you have now? Don't you feel at least a little grateful, if maybe not obliged? Maybe we can start there?

The whole point of the GPL is to encourage sharing! Making money off of GPL code is not encouraged by the text of the license, but it is encouraged by the people who wrote the licenses. Saying "don't share it" is antithetical to the goals of the free software movement.

I feel like everyone is getting distracted by protecting copyright, when in fact the point of the GPL is that we should all share and share alike. The GPL is a negotiation tactic, it is not an end unto itself. And curl, I might note, is permissively licensed so there's no need for a clean room reimplementation. If someone's rewriting it I'm very interested to hear why and I hope they share their work. I'm mostly indifferent to how they license it.

It'll be OK.

And yes, it will be ok!

And fwiw, the idea he meant like literal people walking around being Uber is kinda nazi distortion anyway.

30 years of experience in the tech industry taught me that this will get you nowhere. Nobody will reciprocate generosity or loyalty without an underlying financial incentive.

> What happened to sticking up for the underdogs?

Underdogs get SPACed out and dump the employees that got them there.

Finally, how exactly do people think corporations rewrite portions of code that were contributed before re-licensing under a private license? It is ABSOLUTELY possible to rewrite code and relicense it.

Edit: Further, so these people think you contribute to a project, that project is beholden to your contribution permanently and it can never be excised? That seems like it would blatantly violate their original persons rights to exercise their own control of the code without those contributions, which is exactly the purpose of a rewrite.

There are others, such as security vulnerability detection, support, & general maintenance.

(I have my doubts the rewrite is a reasonably defect free replacement)

The 5-day-old code in chardet has little to no value. The battle-tested years-old code that was casually flushed away to make room for it had value.

If it can't and it costs a bunch of money to clean it up then same as always.

OTOH if what is actually happening is just that it is rewording the existing code so it looks different then it is still going to run afoul of copyright. You can't just rewrite harry potter with different words.

Note that even with Google vs oracle it was important they didn't need the actual code just the headers to get the function calls were enough. Yes it's true that the clean room isn't required but when you have an AI and you can show that it can't do it a second time without looking at the source (not just function declarations) that's pretty strong evidence.