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posted by martyb on Friday July 09 2021, @12:52AM   Printer-friendly
from the we-violate-all-open-source-licenses-equally dept.

GitHub’s automatic coding tool rests on untested legal ground:

The Copilot tool has been trained on mountains of publicly available code

[...] When GitHub announced Copilot on June 29, the company said that the algorithm had been trained on publicly available code posted to GitHub. Nat Friedman, GitHub’s CEO, has written on forums like Hacker News and Twitter that the company is legally in the clear. “Training machine learning models on publicly available data is considered fair use across the machine learning community,” the Copilot page says.

But the legal question isn’t as settled as Friedman makes it sound — and the confusion reaches far beyond just GitHub. Artificial intelligence algorithms only function due to massive amounts of data they analyze, and much of that data comes from the open internet. An easy example would be ImageNet, perhaps the most influential AI training dataset, which is entirely made up of publicly available images that ImageNet creators do not own. If a court were to say that using this easily accessible data isn’t legal, it could make training AI systems vastly more expensive and less transparent.

Despite GitHub’s assertion, there is no direct legal precedent in the US that upholds publicly available training data as fair use, according to Mark Lemley and Bryan Casey of Stanford Law School, who published a paper last year about AI datasets and fair use in the Texas Law Review.

[...] And there are past cases to support that opinion, they say. They consider the Google Books case, in which Google downloaded and indexed more than 20 million books to create a literary search database, to be similar to training an algorithm. The Supreme Court upheld Google’s fair use claim, on the grounds that the new tool was transformative of the original work and broadly beneficial to readers and authors.

Microsoft’s GitHub Copilot Met with Backlash from Open Source Copyright Advocates:

GitHub Copilot system runs on a new AI platform developed by OpenAI known as Codex. Copilot is designed to help programmers across a wide range of languages. That includes popular scripts like JavaScript, Ruby, Go, Python, and TypeScript, but also many more languages.

“GitHub Copilot understands significantly more context than most code assistants. So, whether it’s in a docstring, comment, function name, or the code itself, GitHub Copilot uses the context you’ve provided and synthesizes code to match. Together with OpenAI, we’re designing GitHub Copilot to get smarter at producing safe and effective code as developers use it.”

One of the main criticisms regarding Copilot is it goes against the ethos of open source because it is a paid service. However, Microsoft would arguably justify this by saying the resources needed to train the AI are costly. Still, the training is problematic for some people because they argue Copilot is using snippets of code to train and then charging users.

Is it fair use to auto-suggest snippets of code that are under an open source copyright license? Does that potentially bring your code under that license by using Copilot?

One glorious day code will write itself without developers developers.

See Also:
CoPilot on GitHub
Twitter: GitHub Support just straight up confirmed in an email that yes, they used all public GitHub code, for Codex/Copilot regardless of license.
Hacker News: GitHub confirmed using all public code for training copilot regardless license
OpenAI warns AI behind GitHub’s Copilot may be susceptible to bias


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  • (Score: 0) by Anonymous Coward on Friday July 09 2021, @06:54AM (2 children)

    by Anonymous Coward on Friday July 09 2021, @06:54AM (#1154216)

    I think there is a slight distinction to make. GitHub, under the terms of their license that you agreed to when you signed up, is perfectly within their rights to use your software in this way. The problem is that the people and organizations that receive these suggestions may not have the legal right to actually use them.

  • (Score: 2) by DannyB on Friday July 09 2021, @03:02PM (1 child)

    by DannyB (5839) Subscriber Badge on Friday July 09 2021, @03:02PM (#1154306) Journal

    What if someone else puts your GPL code on GitHub? YOU did not authorize this use of your code under non GPL terms. YOU now have cause to sue someone.

    --
    The most difficult part of the art of fencing is digging the holes and carrying the fence posts.
    • (Score: 0) by Anonymous Coward on Friday July 09 2021, @09:44PM

      by Anonymous Coward on Friday July 09 2021, @09:44PM (#1154463)

      Even if someone else puts your code on GitHub in violation of their license, GitHub is still able to have reasonable reliance on the warranties of that user in order to cover their own ass, similar to every other hosting service. The real interesting part is that your remedy is a DMCA notice. Once they receive such a notice, they have to remove the code from everywhere under their control. What that also includes is the AI data sets and the trained AI output. Essentially, they would have to retrain the entire AI in order to be sure they got it all. Only after the DMCA notice would GitHub get anywhere near liability for themselves.