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Judge dismisses majority of GitHub Copilot copyright claims (www.developer-tech.com)

submitted 2 months ago by [email protected] to c/[email protected]

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A judge has dismissed the majority of claims in a copyright lawsuit filed by developers against GitHub, Microsoft, and OpenAI.

The lawsuit was initiated by a group of developers in 2022 and originally made 22 claims against the companies, alleging copyright violations related to the AI-powered GitHub Copilot coding assistant.

Judge Jon Tigar’s ruling, unsealed last week, leaves only two claims standing: one accusing the companies of an open-source license violation and another alleging breach of contract. This decision marks a substantial setback for the developers who argued that GitHub Copilot, which uses OpenAI’s technology and is owned by Microsoft, unlawfully trained on their work.

...

Despite this significant ruling, the legal battle is not over. The remaining claims regarding breach of contract and open-source license violations are likely to continue through litigation.

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[–] [email protected] 103 points 2 months ago (3 children)

The judge also noted that the cited study itself mentions that GitHub Copilot “rarely emits memorised code in benign situations.”

"Rarely" is not zero. This looks like it's opening a loophole to copying open source code with strong copyleft licenses like the GPL:

Find OSS code you want to copy
Set up conditions for Copilot to reproduce code
Copy code into your commercial product
When sued, just claim Copilot generated the code

Depending on how good your lawyers are, 2 is optional. And bingo! All the OSS code you want without those pesky restrictive licenses.

In fact, I wonder if there's a way to automate step 2. Some way to analyze an OSS GitHub repo to generate inputs for Copilot that will then regurgitate that same repo.

[–] [email protected] 24 points 2 months ago

With an automated refactoring step to pretend it's really not derivative work despite being extremely derivative

[–] [email protected] 6 points 2 months ago* (last edited 2 months ago)

It doesn't work like that. A copy is a copy. Only if you can make it credible that you independently produced the same code, can you get through with that. Hence, clean room implementations. It's not strictly necessary but deters lawsuits.

Apparently there's some confusion here what the judge ruled. This particular part is about claims under the DMCA, not copyright infringement. The relevant sections can be seen here: https://www.copyright.gov/title17/92chap12.html [edit: link fixed. The claim was that "copyright management information" was removed; prohibited under these sections.]

Here's the original text for those who want to know more (link via The Verge): https://www.documentcloud.org/documents/24796955-github-copilot-claims-dismissed